Appeals Court: Amended Michigan Sex Offender Laws Flawed and Unconstitutional

8-26-16 Michigan:

Comment from William Dobbs:

A late summer win! Yesterday a three judge panel (Gilbert Merritt, Alice Batchelder and Bernice Donald) of the US Sixth Circuit Court of Appeals handed down a decision remarkable for what it does, the legal reasoning, and explicit hope for future legal challenges.

Legislators have a habit of imposing new punishments on those already sentenced for sex offenses. The court put a stop to that, declaring the practice “ex post facto” and unconstitutional. Many of Michigan’s 40,000+ registrants will benefit shortly.

Is the registry punishment? Registrants and just about anybody else would say yes. Courts, however, usually say no, viewing the registry as an administrative matter, sidestepping consideration of legal challenges by registrants.

The Sixth Circuit judges took a careful look, got real, and resoundingly declared the registry is punishment—an important holding by a federal circuit court. The 14-page decision ends with tantalizing hope for the future, noting that claims the court did not consider are “far from frivolous and involve matters of great public importance.” The infernal registry is still standing but this is a significant victory for reason and justice.

Decision
Does v. Snyder
US Court of Appeals for the Sixth Circuit, Case Nos. 15-1536/2346/2486

Decision filed Aug. 25, 2016:
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0207p-06.pdf
Audio of oral argument - Part One--Jan. 27, 2016 .. Part Two--Apr. 27, 2016

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See also:

Court: Michigan's toughened sex offender rules cannot be retroactive by David Eggert

Appeals Court Says Michigan Sex Offender Law Flawed And Not Working by Rick Pluta

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Colorado SOMB Approved Standards Revisions Sexual Offense History Questions

8-19-16 Colorado:

Source Colorado SOMB Announcement:

Greetings,

On August 19, 2016, the SOMB approved revisions to the Standards and Guidelines as they pertain to sexual offense history questions, including sexual offense history polygraph questions. These revisions apply to Standards and Guidelines for adult sex offenders and juveniles who have committed sexual offenses.

All current Standards and Guidelines related to requirements for sexual offense history questions, including sexual offense history polygraph questions, are unchanged. The following revisions apply only when an adult sex offender or a juvenile who has committed a sexual offense refuses to answer such questions.

Below you will find three recent court decisions that support a client's right to refuse to answer sexual offense history questions, including sexual offense history polygraph questions. These decisions have necessitated the revised language to the Standards and Guidelines as follows:

"If the offender refuses to answer sexual offense history questions, including sexual offense history polygraph questions, then the provider shall meet with the supervising officer to identify and implement alternative methods of assessing and managing risk and needs. The provider shall not unsuccessfully discharge an offender from treatment for solely refusing to answer sexual offense history questions, including sexual offense history polygraph questions."

The revisions are implemented, where applicable, throughout the Standards and Guidelines for adult sex offenders as well as for juveniles who have committed sexual offenses. You are encouraged to review the attached documents carefully. You are welcome to submit proposed changes to be considered as the revision process moves forward. In addition, as questions arise, please do not hesitate to contact us.

Thank you.

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People vs. Robertson
People vs. Ruch
US vs. VonBehren

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USA v Cheever

7-18-2016 Colorado:

USA v Cheever

JOHN L. KANE, Senior District Judge.

This matter is before me for sentencing on Defendant Shawn Cheever's plea to a single count of possession of child pornography. I have heard the presentations of counsel, and Mr. Cheever has been afforded his right of allocution. Because the question of a condign sentence in this case, and in cases involving plea deals negotiated in rigid adherence to non-binding Sentencing Guidelines generally, raises sentencing issues about which I have thought long and hard, I take time to address them in the following written opinion.

... ... ...

Conclusion.

It is argued at various places in the vast literature on this subject I have reviewed that the value of the plethysmograph is not to condemn or to judge, but rather to facilitate the evaluation and therapy undertaken by nudging the subject along to admit his defect of character — a sort of plaintive admonition that confession is good for the soul and overcomes the resistance to therapy that is manifested in denial. Such admission is regarded as one of the first steps toward a rehabilitative state of refrain and abstinence. Perhaps it should be considered a shortcut in therapy. (One can only surmise that a relapse after treatment would exacerbate the perversion because it occurs in spite of the therapy generated by the conscious admission.)

The Court of Appeals for the Second Circuit held in United States v. McLaurin, 731 F.3d 258, 260 (2013) that a condition of defendant's supervised release that required him to take penile plethysmograph testing was an "extraordinary invasive condition [that is] unjustified, is not reasonable related to the statutory goals of sentencing, and violates McLaurin's right to substantive due process."

The special condition requiring Cheever to submit to plethysmograph testing is specifically rejected. So, too, until such time as I am presented by the government with proof that the polygraph and the visual reaction time measurement device will meet the goals of supervised release as applied to a particular defendant, that such testing will involve no greater deprivation of liberty than is necessary for the particularized supervised release of an individual defendant and that there are no alternative measures, techniques or devices available that are any less intrusive to freedom of thought, they, too, are rejected.