Blog also contains "Unfavorable" and "Informational" decisions and articles, and "Active Lawsuits." All can be useful in framing arguments for new court cases. i.e., avoid pitfalls or inform court and simply to learn whats happening to others. If you know of a case or lawsuit not listed, please let us know. Leagle is our main resource.
View decisions by the Federal Circuit States belong to.
NEW: (# Failure to Register Technicality
NEW: Travel Restrictions (Apparently Eff. 2013)
NEW: Border Patrol Checking
NEW: Failure to Register a Sex Offense???
CAUTION: SORNA EFFECTIVE even if state has not enacted it

Tuesday, October 21, 2014

Second Circuit To Feds: Don’t Touch His Junk

10-5-2013 Vermont:

USA -v- McLaurin

You don’t often see federal courts striking down conditions of supervised release as violations of substantive due process. But you don’t often see the federal government wanting to hook up a device to a man’s penis, make the man watch pornography, and see what happens. It sounds a bit… 1984 (affiliate link).

I couldn’t help noticing this opinion, given its unusual nature and its focus on the peen. I’m sure you’re all dying to learn more about the procedure known as “penile plethysmography.” (The good news: it’s not as bad as a penile embolism or penile degloving.)

You know you want to see what those Second Circuit judges are hiding underneath their robes. Let’s dig a little deeper (into the opinion), shall we?

Having a sex-related offense on your record can really make your life unpleasant, for years after you’ve served your time in prison. It could, for example, cause you to lose your summer associate position at a top firm (even if your only “crime” was having a consensual relationship with a younger student while in high school).

Take the case of David McLaurin. He took topless photos of his teenage daughter, at his daughter’s request, to advance her modeling career. For this offense, he got sentenced to producing child pornography. He served his prison sentence (most of which was suspended).

Years later, he ran into problems complying with the federal Sex Offender Registration and Notification Act (SORNA). After pleading guilty to a single count of violating SORNA, he got sentenced to fifteen months in prison and five years of supervised release. The sentencing judge imposed, over McLaurin’s objection, the condition that he participate in sex offender treatment that could include penile plethysmographic examinations.

What’s that? You can check out the surprisingly detailed Wikipedia article, or you can read the Second Circuit’s opinion (jointly authored by two out of the three judges on the panel, Judge Guido Calabresi and Judge Barrington Parker; I wonder why they didn’t just make this a per curiam) (citations omitted):
Penile plethysmography is a procedure that lasts two to three hours and “involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.” The Government disputes whether, as others have described, the test requires a subject to masturbate to establish a baseline for measurement.
Here at ATL, we have no problem with hand-to-wiener contact. Indeed, masturbation-defense law is a growing practice area, providing job opportunities for desperate law school graduates.

But masturbating while being hooked up to a machine and watched by others doesn’t sound like much fun. And it doesn’t have a great pedigree either:
The procedure was “developed by Czech psychiatrist Kurt Freund as a means to study sexual deviance,” and it was “at one time used by the Czechoslovakian government to identify and ‘cure’ homosexuals.”
And we all know how well those efforts go.

If you’re skeptical of penile plethysmography (anything that hard to spell has got to be sketchy), the Second Circuit agrees with you. Here’s the meat of the panel opinion:
  • “[T]he procedure inflicts the obviously substantial humiliation of having the size and rigidity of one’s penis measured and monitored by the government under the threat of reincarceration for a failure to fully cooperate. And even if the machine could accurately monitor and record the extent or intensity of a convict’s prurient interests (a proposition about which we have serious doubts), the goal of correctional treatment during supervised release is properly directed at conduct, not at daydreaming.”
  • “[W]e see no reasonable connection between fluctuating penis size and public protection — certainly none strong enough to survive the careful scrutiny that we give to unusual or severe conditions of supervised release.”
  • “[W]e also find it odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction. In short, the Government offers no compelling justification for plethysmography in the name of deterring crime.”
Accordingly, the Second Circuit gave this dubious and degrading practice the shaft. Quoth the panel: “A person, even if convicted of a crime, retains his humanity.” ..Source.. by David Lat

Wednesday, October 8, 2014

Claims of bias in child porn cases arise for Hillsborough Judge Chet Tharpe

6-6-2014 Florida:

TAMPA — One day in September 2012, lawyer Michael Maddux walked out of a Hillsborough courtroom in shock. He couldn't believe what had just happened to his client, a middle-aged man with no criminal record who, prosecutors said, obsessively downloaded and categorized more child pornography than anyone else they had ever come across.

Peter Barnhill, 44, had more than 400,000 ghastly images on his hard drive. But there was no evidence he had ever touched a child, and he had passed a polygraph exam attesting to that. A psychologist who specializes in examining sex offenders pronounced him "low risk." Maddux thought his client might get, at most, five years in prison. Hillsborough Circuit Court Judge Chet A. Tharpe gave him 22.

"This child pornography phenomenon, if you will, is becoming an epidemic," Tharpe said in an emotional speech from the bench. There was a 50-50 chance that Barnhill would molest a child one day, he said, citing a study from 2011. "That is scary," he said. "We're not talking about a fantasy."

Months later, in a sharply worded decision that could affect whether Tharpe continues to hear child pornography cases, Florida's 2nd District Court of Appeal ruled that Barnhill would have to be resentenced, and by a different judge. The court faulted Tharpe for "abusing his discretion" by lumping Barnhill in with child molesters and rapists. The veteran jurist had implied that he would never consider giving a lighter sentence in a child pornography case, regardless of the facts.

"Even to the most casual observer, it could not be believed that Barnhill received a hearing in a dispassionate environment before a fair and impartial judge," the court wrote.

The decision was "en banc" or "entire bench," a rare unanimous ruling from all 13 appellate judges.

Friday, September 26, 2014

Wallace v. State

9-26-2014 New York:

Wallace -v- State

In this case ("Wallace"),1 nine individuals ("Plaintiffs") claim that New York State sex offender registration requirements and residency restrictions punish them retroactively for offenses they already committed and, thus, violate the Ex Post Facto Clause of the Constitution (Article I, Section 9, Clause 3); and that similar residency restrictions under County and Town laws are not only unconstitutional, but preempted by state law. (Dkt. No. 5 ("Am. Compl.") ¶¶ 1-3.)

Plaintiffs also claim that, as a result of the County residency restrictions, they are, or have been, homeless and relegated to County-run trailers, subject to living conditions that infringe upon their Fourteenth Amendment right to equal protection under the law. (Id. ¶¶ 45-46.)

Defendants—the State of New York (the "State")2; the County of Suffolk (the "County") and Susan Westergaard, in her official capacity on behalf of the Suffolk County Department of Social Services3 (the "County DSS") (collectively, the "County Defendants")4; Mark Epley, in his official capacity as Mayor on behalf of the Town of Southampton5 (the "Town")6; and Alexander Roberts, in his official capacity as Executive Director of Community Housing Innovations, Inc. ("CHI")—move the Court to dismiss the claims against them in the Wallace Complaint. (Dkt. Nos. 68-70; 79.)

For the reasons set forth below, the Court grants Defendants' motions in their entirety and dismisses the Wallace Complaint with prejudice, except Plaintiffs' state law preemption claims as to which the Court declines to exercise supplemental jurisdiction and dismisses without prejudice.



See also: Judge Rejects Sex Offenders' Challenge to Residency Laws....NY Law Journal

Monday, September 22, 2014

New Jersey Supreme Court: Sex offenders who served their time can't face penalities under new laws

9-22-2014 New Jersey:

Riley -v- NJ Parole Board

Sex offenders can not be subjected to punishments under newly created laws if they committed their offense and served their time before the legislation was passed, the state Supreme Court ruled in a 4-3 decision Monday.

In 1986, George Riley was convicted of aggravated sexual assault on a minor and given a 20-year sentence. About six months after his release in 2009, when Riley was under no form of parole, the parole board said he would have to comply with the 2007 Sex Offender Monitoring Act meaning that he would have to wear an ankle bracelet form the rest of his life. He appealed the requirement of what he said was a new punishment constituting life time parole imposed after he had committed his act and after he served his prison term.

“A well established principle of ancient origin is that the Legislature cannot increase the punishment for a crime after it has been committed,” wrote Justice Barry Albin.

“Parole is a form of punishment under the constitution,” Albin wrote. “When applied to Riley, [the monitoring act] violates both the federal and state constitutional guarantees.”

The decision affirms an appeals court ruling that sided with Riley. The parole board argued that Riley should be subject to the ankle bracelet because the law mandated that someone in his risk category, which was determined to be high, must be subject to a monitoring bracelet.