CA Supreme Court Decision Regarding Residency Restrictions Due March 2

3-2-15 Decision: In re Taylor. This may leave open several questions if it is ONLY applicable to San Diego county. Lawyers speak up..

2-27-2015 California:

The California Supreme Court has officially announced (2-27) that it will publish on Monday, March 2, two decisions regarding residency restrictions. The decisions are expected to determine the following issues:

• (1) whether residency restrictions are constitutional
• (2) to whom do the restrictions apply and
• (3) if the restrictions can be applied to every registered citizen while on parole.

The Court heard oral arguments in the case on December 2 in Los Angeles.

During oral arguments in the case of People v. Mosley, the Attorney General’s office argued that residency restrictions are constitutional but that they only apply to registered citizens while on parole (not to those on probation or who have completed parole).

The attorney representing Mosley argued in the alternative that the restrictions are not constitutional but if they are, they apply to all registered citizens.

During oral arguments in the case of In re Taylor, the Public Defender argued that residency restrictions cannot be applied to every registered citizen while on parole, but must be done on a case-by-case basis. ..Source.. by CA RSOL

Benton Harbor man to remain on sex offender list

2-24-2015 Michigan:

A Benton Harbor man convicted of having sex with an underage girl has lost an appeal of a lower court's decision requiring him to remain on the state sex offender registry.

Evans Costner III was more than four years older than the victim in the 2009 case, and therefore not entitled to have his name removed from the registry, the state Court of Appeals said.

A provision in state law allows offenders in so-called "Romeo and Juliet" cases, where young people engage in sex by consent, to petition a court for removal from the registry.

For the petition to be granted, the victim must be at least 13 and under 16, and the offender not more than four years older than the victim.

Costner was 18 at the time of the offense, four years and 23 days older than the 14-year-old girl, according to an appeals court opinion released Feb. 19.

In affirming a Berrien County Trial Court decision denying Costner's petition, the appeals court also said that requiring him to register as a sex offender is not cruel and unusual punishment.

Sex offender lands in jail after going to police to say he doesn't need to register

zzzzzzzzzzzzzzzzzzzzzzz

Shepard v Houston

11-7-2014 Nebraska:

Shepard v Houston

Nature of Case:
Neb.Rev.Stat. § 29-4106(2) (Cum.Supp. 2012) provides for retroactive application of its requirement that all inmates convicted of a felony sex offense or other specified offense submit a DNA sample before being discharged from confinement.

Section 29-4106(2) also specifically provides that those inmates convicted before the passage of § 29-4106 "shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge from his or her probation unless and until a DNA sample has been collected." In effect, § 29-4106(2) provides that an inmate will forfeit his or her past and future good time credit if the inmate refuses to submit a DNA sample.

The issue is whether § 29-4106(2), as applied to an inmate who was convicted before its passage, violated the Ex Post Facto Clauses of U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16.

... ... ...
... ... ...

In conclusion, we agree with the district court that insomuch as § 29-4106(2) forfeits Shepard's past and future good time and recalculates his parole eligibility and mandatory discharge dates without regard to any good time, it violates the constitutional prohibitions against ex post facto laws.

Shepard, at the time of his crimes, expected to automatically incur good time simply through good conduct, and he expected to have his mandatory discharge date calculated upon his maximum sentence minus good time. Section 29-4106(2), by allowing for forfeiture of more good time than could have been forfeited before and by allowing for forfeiture based on conduct that is something less than flagrant and serious misconduct — indeed, conduct not even contemplated at the time of Shepard's crimes — substantially altered the punitive consequences attached to his crimes.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

US v Dunn

2-10-2015 Utah:

US v Dunn

Defendant-appellant Michael Dunn was convicted of possessing child pornography, receiving child pornography and distribution of child pornography. Defendant received a 144-month sentence for these convictions, followed by a 25-year term of supervised release.

The district court imposed certain special conditions of the release (including restrictions on defendant's ability to access computers and the internet), and ordered payment of restitution. Defendant raised several arguments on appeal:

• (1) the court erred in instructing the jury, relieving the government of its burden to prove he "distributed" pornography;
• (2) his convictions for receipt and possession were multiplicitous and violated Double Jeopardy;
• (3) the special conditions of his supervised release limiting his access to computers and the Internet were not supported by necessary findings of fact; and
• (4) the district court applied an incorrect legal standard with regard to restitution (affecting the total amount owed).

After review, the Tenth Circuit agreed that the special conditions imposed on release were not supported by necessary findings of fact. The Court also agreed that an incorrect legal standard was used in calculating restitution.

On those grounds the Court reversed and remanded for further proceedings; the Court affirmed the district court's judgment in all other respects.

Top court strikes down Nassau County sex offender residency law

2-17-2015 New York:

Local governments cannot impose their own conditions on where sex offenders may live, New York’s highest court ruled Tuesday, striking down a Nassau County law.

The Court of Appeals said that state law covering sex offenders supersedes any local laws and, therefore ... ... .....Sub Req.. by YANCEY ROY

---

Judge Rules Some Sex Offender Laws Too Restrictive

In most cases, local governments are given the freedom to enact legislation intended to enhance state laws to better serve their local communities. But when it comes to restricting where sex offenders can live, a state Appellate Court judge has ruled the state restrictions are enough and the rest should be thrown out. Cara Thomas explains how this ruling could affect local communities.

The appellate case was The People versus Michael Diack, a Level 1 sex offender who was charged with violating a local law in Nassau County, which restricts all sex offenders from living within 1,000 feet of a school.

Judges ruled in his favor saying the local law was too restrictive and needed to be thrown out.

State law said only the most dangerous sex offenders, Level 3, and those on probation or parole are restricted from living within 1,000 feet of a school.

In A Victory For Fundamental Fairness, The NH Supreme Court Rules That Retroactive, Lifetime Registration Requirement Is Unconstitutional As Applied To ACLU Client

2-12-2015 New Hampshire:

CONCORD – In a victory for fundamental fairness, the New Hampshire Supreme Court held today that New Hampshire’s law requiring the registration of certain criminal offenders is unconstitutional as applied to an ACLU client because the law retroactively imposes lifetime restrictions on individuals who were convicted before these lifetime restrictions were enacted. The case was brought by the American Civil Liberties Union of New Hampshire (“ACLU”), and the petitioner was represented by William Chapman of Orr & Reno, P.A. and Gilles Bissonnette and Barbara Keshen of the ACLU.

The Court held that Chapter 651-B’s retroactive, lifetime registration requirements were “punitive in effect” and therefore unconstitutional as applied to the petitioner. As the Court explained, “the act as currently constituted is excessive” and certain aspects of the act “serve no readily-apparent non-punitive purpose.” The Court added, “[w]e find the lifetime duration of the registry in particular to be excessive, when considered with all of the act’s other impositions. If in fact there is no meaningful risk to the public, then the imposition of such requirements becomes wholly punitive.”

Thus, the Court concluded: “The statute has changed dramatically since [1994] to the point where the punitive effects are no longer ‘de minimus.’ No one amendment or provision [since 1994] is determinative, but the aggregate effects of the statute lead us to our decision. Although there is a presumption in favor of a statute’s constitutionality, here this presumption has been overcome because we are convinced that the punitive effects clearly outweigh the regulatory intent of the act.”

The Court went on to specifically explain how New Hampshire’s registration statute negatively impacts lifetime registrants and is punitive. For example, the Court noted that the broad public dissemination of registrants’ personal information “stigmatizes registrants and can lead to further harm, such as ‘vigilante justice.’”

The Court added that lifetime quarterly in-person reporting, as well as “the frequent reporting and checks by the authorities at the [petitioner’s] residence do entail a level of oversight by the State to which few citizens,” including other convicted individuals, “are subject.” Thus, the Court explained: “For the [petitioner] these requirements will continue for the rest of his life.

Notably, there is no way for the [petitioner] to be relieved of the requirements, even though he has not reoffended in 30 years, has completed counseling, was discharged from probation early, and is currently permanently disabled.”

McGuire -v- Strange

2-12-2015 Alabama:

McGuire -v- Strange

Michael A. McGuire was born in Montgomery, Alabama, where he graduated from high school in 1971. Eventually, he left the community for many years. In 2010, at the age of 57, he and his wife returned to his hometown to be with his aging mother and other family in the area. Unbeknownst to Mr. McGuire, his arrival coincided with the 2011 promulgation of the Alabama Sex Offender Registration and Community Notification Act ("ASORCNA"). Ala. Code § 15-20A-1 et seq.

Mr. McGuire has one criminal conviction, a serious one: In 1985, he raped and otherwise assaulted his 30-year-old girlfriend of five years. In May 1986, he was convicted of sexual assault in a Colorado state court. Mr. McGuire spent his next three years in prison and a fourth year on parole, successfully completing his prison sentence. He then had a multi-decade career as a hair stylist and jazz musician in the Washington, D.C. area. Prior to relocating to Montgomery in 2010, he had never been required to register as a sex offender. He was, in his brother's words, "a free American." (Trial Tr. I, at 14.)

After resettling in his hometown and on the advice of his brother, a local attorney, Mr. McGuire voluntarily visited the Montgomery Police Department to inquire about the scope of Alabama's sex-offender laws, hoping to confirm his belief that he would not be subject to the state's restrictions. That belief was erroneous by multiples. Mr. McGuire now lives homeless and unemployed under a bridge in his hometown. Pursuant to ASORCNA, he is required to register as a homeless sex offender in-person at both the City of Montgomery Police Department and the Montgomery County Sheriff's Department every week. In fact, for the rest of his life, he is subject to the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions nonexistent elsewhere, at least in this form. He challenges ASORCNA as violating the Ex Post Facto Clause of the United States Constitution.

The court held a four-day bench trial and received post-trial briefing on the constitutional issue. This opinion constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

... ... ... ...

VII. CONCLUSION

For the foregoing reasons, it is ORDERED and DECLARED that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires

• (1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate law-enforcement jurisdictions as provided by § 15-20A-12(b) in conjunction with § 15-20A-4(13) and
• (2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions as provided by § 15-20A-15 in conjunction with § 15-20A-4(13).

It is further ORDERED that the Attorney General's oral Motion to Strike and Defendants' oral Motions for Judgment as a Matter of Law are DENIED AS MOOT.