Category: Constitutionality

A Case of Unchecked Prosecutorial Abuse

restaurant-small1By Michael M.

Let’s talk about Bedford County, Pennsylvania’s former District Attorney, William Higgins, Jr.  On August the 17th, 2018, Higgins was sentenced after being charged with using his power as a District Attorney to coerce female defendants accused of drug offenses into sex acts. At least, that’s how the news media repeatedly framed it. There’s just one problem with that script. Prisoners and those accused of a crime cannot legally consent to sex with any law enforcement officer, District Attorney, or other officer of the court.  So, let’s just call this what it really was – what the court and news media refuse to call it: Rape.

It’s not as if the court is unfamiliar with the word or unaware of its definition. After all, courts routinely tout the legal principle that certain classes of people cannot consent to sex under any circumstances – minors under the legal age of consent, people under the influence of drugs or alcohol, people who are incapacitated while unconscious or sleeping, people who have significant mental illness, and yes, people who are in the government’s custody.

So, for raping these women, former District Attorney Higgins received the following sentence:  $9,700 in fines, eight years of probation, 1125 hours of community service, 120 days of house arrest, and mandated counseling.  That’s right… not a single day of jail or prison time, and no sex offender registry!

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Former DA, William Higgins Jr.

One might be tempted to think that perhaps he received this judicial slap on the wrist because his offense was a singularly minor infraction of the law. But, in fact, Higgins faced 31 charges which included not only the sexual assaults, but obstruction of justice, witness intimidation, reckless endangerment, giving misleading testimony, and concealing or destroying evidence.

Perhaps his sentencing good fortune was the result of the fact that Higgins is just a really, really nice guy who is simply misunderstood?  After all, Steven Passarello – Higgins’ defense attorney – extolled his ostensible altruism thusly: “To his credit he decided he did not want to put his family or the county of Bedford through a media circus trial.”  And as everyone knows, nothing says “nice guy” like wanting to spare the county a media circus.

Far more likely is the probability that the District Attorney’s office simply couldn’t stomach the prospect of the wall-to-wall media scrutiny that such attention would bring to their operations. They were apparently willing to do just about anything to avoid that kind of scrutiny and the inevitable calls for oversight and accountability that would surely result.  So, they made a deal.  It was one hell of a good deal for Higgins by any conceivable measure.  Higgins would pay a small fine, do some community service, and spend some time in “home confinement.”  But he would be spared the indignity and substantial risk of serving any jail time, and there would be no sex offender registration. In return, Higgins would retreat from the limelight, keep his mouth shut, and crawl back into obscurity like the cockroach that he is. It’s a win-win.

Image result for justiceThis case is the perfect example of how there are two distinctly different kinds of justice in America. There’s the kind of justice you get when you are wealthy, well-connected, and a potential embarrassment to officials because know where all the “skeletons” are buried. And then there’s the injustice you are subject to when you aren’t wealthy, aren’t well-connected, and wield no political clout at all.  The average citizen who is charged with one – one! – misdemeanor sexual offense typically serves significant jail time and is placed on the sex offender registry.  Higgins, with 31 charges against him, received not even a taste of either.

That brings us to another major, glaring facet of this case that most have missed.  Time and again, the appellate courts have ruled that the sex offender registry is not punishment. In Smith v. Doe, 538 U.S. 84 (2003), the U.S. Supreme Court upheld Alaska’s sex-offender registration statute, opining that the registry was administrative, not punitive, and was therefore not an ex post facto law.  But, if the sex offender registry requirement truly isn’t punishment, then why was Higgins not required to register?

The answer, obviously, is because Higgins and his attorney both knew full well that sex offender registration would be the worst possible consequence to be faced at any sentencing hearing. Therefore, they did what any reasonable defendant would do under the circumstances, if they had the same kind of dirt on the courts that Higgins had. They made sex offender registration a non-negotiable item in their bargaining discussions.

Higgins, the former Bedford County PA District Attorney knows full well that not only is the sex offender registry a punishment, it is an unconstitutionally cruel and unusual punishment of the worst kind. The current Bedford DA, Lesley Childers-Potts, knows it, as does Judge Thomas Ling, who accepted Higgins’ plea agreement. Every registrant in America knows, without a doubt, that the sex offender registry – the so-called “civil death penalty” – is punishment.

Why doesn’t the U.S. Supreme Court know it?

How to Advocate for Registry Reform with Minimal Risk

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By Michael M.,  Registry Report Editor

My decision to become a full-time advocate for criminal justice and registry reform wasn’t an easy one.  When I was arrested, the news media took whatever they could find online about me and ran with it, exercising complete disregard for its source or validity.  At one point, they published the photos of over a dozen of my professional associates, some of whom I’d never even met, and asserted that they were all members of a sex cult.  Anyone unfortunate enough to have been associated with me in business or socially was instantly branded as a probable co-conspirator, cult member, or sex-trafficker.

During my incarceration, my family and friends were targeted with harassment, vandalism, and death threats.  So, given that back-story, you can probably imagine their reaction when I announced that I was about to become a very public advocate for changing how the judicial system and society deal with sex crimes, victims, and offenders.

Related imageThey freaked out.

But this was something I really needed to do.  I’ve never been one to sit back and let life dictate to me how things ought to be.  My stay in federal prison left me desperately needing to feel in charge of my own destiny once again.  Because of what I’ve been through, I feel I may be uniquely qualified to contribute to the national discussion in ways that I hope are insightful and based on real experiences rather than conjecture and ideology.  The fact that I have extensive previous experience in writing, politics, and public relations is icing on the cake.

I needed to assure my family and friends that I would do everything possible to prevent them from becoming the “collateral damage” in a fight that none of them wanted to have any part of.  I gave it a lot of thought, and this is the result of that contemplation.

Ten tips for sex offender registry advocates.  I hope you find this useful.

1  It isn’t always about you.  Despite appearances in the first few paragraphs of this article, I am trying very hard not to make my advocacy all about me.  Sure, I truly believe I’ve been screwed by an unfair and uncaring system but, then again, so has pretty much everyone else who’s been touched by our labyrinthine and dysfunctional judicial system.  I will let my experience inform and shape my advocacy and infuse my message with some level of credibility, but I won’t let it become a holy crusade to fix my particular problem.  You shouldn’t either.

2 Focus your message on your target market.  Your objective shouldn’t be to preach to the converted, but to convince the undecided.  To do that, we must find common ground for discussion and potential agreement with people outside our comfort zone.  Picking social media fights with people who are obstinately against you is a terrible waste of your valuable time and resources.  That hour you spent in a flame-war with a pin-head who will never see things your way could have been better spent engaging with a handful of people who are willing to see things your way. Focus also means looking for the most efficient expenditures or your energy.  Marching up and down the street with a protest sign isn’t very effective or safe.  Writing a letter to your congressman? Better.  Donating time or money to an organization working on your behalf?  Great!

3 Don’t allow yourself to become indifferent to evil.  It’s incredibly easy to fall into the trap of “whataboutism” or relative morality.  Aleksandr Solzhenitsyn said, “It is in the nature of the human being to seek a justification for his actions.”  Some folks unthinkingly justify themselves by accepting or minimizing the immoral or illegal actions of others.  Others feel better about themselves if they can condemn and persecute someone whom they consider more despicable than they are.  The world is confusing and complicated enough without all the dissembling.  Pointing out that rape is evil, even if you happen to be a sex offender, isn’t hypocrisy.  It’s simply stating the truth.

4 Never get suckered into being portrayed as someone who wants to abolish sex crimes altogether.  No one wants that.  Those laws exist for a darn good reason – they serve to protect society.  A person attempting to undermine your credibility will often use a “straw man argument” such as: “So, if you had your way, child sex abuse would be legal!”  Our position should unequivocally be that sexual crime is indeed a serious problem, but it can’t be solved through mass incarceration, shaming, humiliation, banishment, unemployment, forced homelessness, and vigilantism.

5 Don’t lower yourself to the same level of vitriol as the haters.  Christ was reported to have said, “Converte gladium tuum in locum suum. Omnes enim, qui acceperint gladium, gladio peribunt.” (“Return your sword to its place, for all who will take up the sword, will die by the sword.”)  By using their logic, their tactics, you’re validating their position.  If you want to put all false accusers on a registry to be humiliated and persecuted, you’re accepting the notion that registries actually accomplish something.  If you think that people pressing for longer terms of incarceration should spend a year in some rat-hole jail cell to “learn what it’s like,” you’re just as bad as they are.

6 Avoid no-win arguments.  Getting into one with someone who is incapable or unwilling to use reason is a losing proposition for all concerned.  A person who is spewing hatred and duplicity at you is never going to suddenly smack himself in the forehead and say, “Wow! You know what? You’re right!  I am a fatuous moron! Thanks for setting me straight!” except, perhaps, in your dreams.  Far more likely is the possibility that the enraged nitwit will try to track you down and try to make your life miserable in some way.  Block and move on to something productive and less emotionally draining.

7 Keep your privileged information privileged.  Abstain from publishing your home address, phone number, employer identification, or other critical information that could be used to identify, harass, or harm you or your family, friends and employer.  It’s bad enough that, if you’re a registrant, the government is already publicly publishing this stuff about you, you shouldn’t be making matters even worse.  Yes, people may be curious about you, but their curiosity doesn’t give them a right to know personal details that might put your family at risk. Even allies could someday become adversaries.  Get used to asking, “Why do you want to know?”

8 Victims of sexual assault absolutely deserve to be treated with respect.  Many registrants were, themselves, victims of childhood sexual assault.  A broken judicial system victimizes practically everyone it touches.  Registry reform is not an issue that requires polarization into opposing camps.  We all want safer communities, less sexual abuse, better investigative tools, rehabilitated offenders, rational laws and sentencing, and greater respect for everyone’s constitutional rights.  Focus on commonalities, not differences.  The only way we can accomplish anything is to work together, not against one another.

9 Don’t just talk the talk; Walk the walk.  It’s easy to grouse about how bad things are, but what are you actually doing about the situation?  If you think simply “liking” stuff on social media is going to bring about meaningful change in our society, you’re seriously deluding yourself.  Change always involves risk, and it’s invariably painful.  It’s up to you to decide how much risk is acceptable and where your pain tolerance lies.  If you haven’t volunteered your talents or donated even a small amount of cash to the cause, then you’re as much a part of the problem as the uninformed and apathetic public.

10 Keep your advocacy focused on the betterment of society as a whole, not just a better world for former sex offenders.  We aren’t advocating for constitutional rights for sex offenders. We are advocating for constitutional rights for everyone.  Registrants are simply the canary in the coal mine, bringing to light the kinds of legislative and prosecutorial overreach that should be worrisome to anyone who believes in the constitution.  We’re not looking for a free pass.  We just want a system that is fair and does what it is supposed to do, which is keep our communities safer.

County Agrees to Pay $115,000 to Man Mistakenly Listed as Sex Offender

restaurant-small1by Michael M., Registry Report

Yakima County, Washington – Damian Garza Cantu sued Yakima County in November of 2016 for damages after someone else’s criminal conviction for third degree rape somehow ended up on his record way back in the mid-1990s.  For the last 20 years, Mr. Cantu failed background checks for jobs and housing, but assumed that it was because of a DWI that he’d gotten in 1993. In 2016, he learned that he was erroneously listed as a sex offender because of a rape conviction for one Damian Eduardo Gutierrez Cantu, and sued the county for $800,000.

Rather than go to court, both parties agreed to a settlement which was announced on June 3, 2018 awarding $115,000 to Mr. Cantu.  We’re going to assume that, like most settlement agreements of this type, Mr. Cantu will be prohibited in the future from discussing the details of the case, sparing Yakima County from the embarassment of having to explain how something like this happened in the first place.

Like others before him, Mr. Cantu will take the hush money and run, kicking this particular can down the road for the next poor victim to deal with.  He can hardly be blamed for coming to such an agreement with Yakima County, though. After all, he’s had just a tiny taste of what sex offenders everywhere have to deal with on a daily basis, many of them for the rest of their lives, and in states with much harsher sex offender laws than Washington.  If someone offered to remove me from registry and pay me $115,000 to keep my mouth shut about the indignities and harm my family has suffered as a result of being on the sex offender registry, I wouldn’t have to think twice about accepting the offer.

Here, however, is the crux of the story that will be missed by many.  Yakima County would never have agreed to this settlement unless they believed there was a realistic chance of losing this case in court.  And by losing, I mean that the court would not only rule against the county, but award substantial damages.

Damages are calculated by the court from quantitative measurements of harm.

Yet, we’re told time and again that being on the sex offender register isn’t punitive and that, while it may be inconvenient and embarassing, it doesn’t actually do anyone any harm. I’m not sure anyone actually believes that load of malarkey, but officials and judges repeat it like the rosary hoping, perhaps, to ward off any “cruel and unusual” judgments from on high.  Finally, someone is admitting (although in a round-about way) that being on the sex offender registry causes a person a great deal of harm.

The only question now is, if Mr. Cantu’s experience on the registry is worth $115,000 in damages, then what is a lifetime on it worth?

Read the news release at KIMATV.com

Read the story in the Yakima Herald

Kids on the Sex Offender Registry

 

restaurant-small1by Michael M., for NARSOL

The headlines today are full of stories of righteous indignation over immigrant children being separated from their families. While that dilemma is certainly newsworthy, the American public seems largely unaware of the fact that tens of thousands of our own children are being taken from their families each year and tossed into a rapacious legal system that chews them up and spits them out as sex offenders.   As hard as it may be to believe, The Department of Justice estimates that there are at least 89,000 children on the sex offender registry, and it should come as no surprise to anyone that it’s destroying their lives.

Imagine, for a moment, what it would be like to have your child listed publicly on the sex offender registry, complete with a photograph, home address, and even a description of the sex crime that resulted in his (or her) inclusion on the list.   Consider what kind of life your child would have if, because of sex offender restrictions, he couldn’t attend school, go to a park or swimming pool, or have a birthday party because other children will be there. Some states simultaneously have laws requiring minors to attend school while at the same time forbidding sex offenders from being anywhere near a school. 44% of sex offenders overall (and presumably juvenile sex offenders, as well) are unable to live with their supportive families due to residency restrictions. Many are forced into foster care, even as bills have been introduced to bar juvenile sex offenders from foster homes and other communal youth facilities.

Elizabeth Letourneau, PhD and professor at the Bloomberg School’s Department of Mental Health and director of the Moore Center for the Prevention of Child Sexual Abuse said, “Not only is this policy [of putting juveniles on the sex offender registry] stigmatizing and distressing, but it may make children vulnerable to unscrupulous or predatory adults who use the information to target registered children for sexual assault.” Letourneau’s findings in a 2018 study published in Psychology, Public Policy, and Law found that registered children are five times more likely to be approached by an adult for sex than non-registered child sex offenders and four times more likely to have suicidal thoughts.

Other wide-ranging unintended consequences of being a juvenile on the registry include harassment and violence. 52% of juvenile registrants have reported violence or threats of violence which they directly attributed to their inclusion on the registry.   Bruce W., whose two sons (aged 10 and 12) were placed on the registry for an offense against their 10-year old sister, reported that a man once held a shotgun to his 10-year old son’s head. In a 2012 Human Rights Watch interview, one female juvenile registrant said, “I was on the public registry at age 11 for the offense of unlawful sexual contact… Random men called my house wanting to ‘hook up’ with me.” Other HRW interviewees described beatings, drive-by shootings, and even beloved family pets being killed.

Without a doubt, some of the children on the sex offender registry are convicted of horrific crimes which led to appropriately harsh punishments. There are others, however, who end up convicted and branded as sex offenders for what has been characterized as fairly normative behavior for children or teens, such as playing doctor or engaging in sexual exploration. Teens who exchange sexy selfies shouldn’t be charged with creating child pornography. Having consensual sex at that age may be a very stupid thing to do, but it hardly rises to the level of sexual assault or predation.

At least 27 states and one territory require that juveniles must register if they commit a sex offense for which an adult in the same jurisdiction would be required to register.   37 states reserve registration for juveniles convicted of specific qualifying offenses. It is difficult to know exactly how many children have been placed on sex offender registries nationwide, however. Studies regarding children on the sex offender registry are relatively rare, and the states typically do not track information regarding the ages of offenders when they were added to the registry. Human Rights Watch attempted to obtain this information from each of the 50 states, but only two responded – and those with aggregate counts only. According to the U.S. Department of Justice, juvenile sex offenders comprise 25.8% of all sex offenders and 35.6% of sex offenders against juvenile victims. They estimate that in 2004 there were 89,000 juvenile sex offenders known to police.

As for the overall age distribution of these juvenile offenders, there is very little data available. Arizona, Arkansas, Colorado, Kansas, Minnesota, Texas allow juvenile registration at 8-years old.   Massachusetts allows sex offender registration for kids as young as 7-years of age. In 2011, there were 639 children on Delaware’s sex offender registry, 55 of whom were under the age of 12.   In 2009, a study conducted by the Department of Justice discovered that nationwide, one in eight child sex offenders who committed crimes against other children was under the age of 12. Overall, according to the DOJ’s Office of Juvenile Justice and Delinquency Prevention, “Known juvenile offenders who commit sex offenses against minors span a variety of ages. Five percent are younger than 9 years, and 16 percent are younger than 12 years.  The rate rises sharply around age 12 and plateaus after age 14.”

Maya R. was arrested in Michigan at the age of 10 for play-acting sexual scenarios while fully clothed with her step-brothers, aged 5 and 8.  She pled guilty to criminal sexual conduct and was required to register as a sex offender for 25 years.  In many states, when children engage in sexual similar conduct, each child is charged with a crime and is simultaneously listed as the victim in the other’s case.

According to a 2013 Human Rights Watch report, the idiosyncrasies of the juvenile justice system can seriously compound the problems associated with how child offenders end up on the registry.  It is doubtful, for example, that they fully understand their rights to due process and against self-incrimination.  And we really don’t know if they fully comprehend the devastating (and sometimes forever) consequences of pleading guilty before they accept a plea bargain. Even adults can find the plea bargaining process confusing or coercive, even though this is how 94% of all criminal cases are resolved.  Often, these juveniles are not informed that they will be subject to registration until after they have pled guilty, and sometimes not until they have finished serving out their juvenile detention or incarceration.  The decisions made by a 10-year old should never have permanent ramifications that will impact them for the rest of their lives yet, in many of these cases, they do.

The inclusion of juvenile sex offenders on the registry was mandated by SORNA (Sex Offender Registry and Notification Act) and has been a major bone of contention and non-compliance by the states since it was signed into law in 2006.  In 2016, additional guidelines were issued to give states more flexibility in implementing laws regarding juveniles on the registry, but many states remain out of compliance and some of the states who are in compliance are being challenged in the courts. It is worth noting that the DOJ estimate of 89,000 juvenile sex offenders was in 2004, two years before SORNA began pushing the states to put juveniles on the registry. That number is probably much higher now.

The 2018 study in Psychology, Public Policy, and Law supports these legal challenges, finding that “in combination with the available literature indicating that these policies do not improve public safety, the results of this study offer empirical support for the concerns expressed by those calling for the abolition of juvenile registration and notification policies.”

The abomination of having nearly a hundred thousand children on the sex offender registry is just one of the many reasons why SORNA is unconstitutionally cruel and unusual and needs to be repealed now.

SO’s Treatment Often Depends on Their Willingness to Litigate

[EXCERPT]  , Detroit Free Press  June 7, 2018

WASHINGTON — Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan’s sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they’d be off the registry by now, or facing less severe restrictions, have seen no changes.
The law remains in place, unchanged, with the state defending it in more than three dozen lawsuits — many of which it has already lost. The controversy involves a ruling two years ago by the U.S. 6th Circuit Court of Appeals in Cincinnati that said provisions enacted in 2006 and 2011 and applied to offenders convicted before then violates constitutional protections against increasing punishments after-the-fact. Last October, the U.S. Supreme Court declined to hear the state’s challenge to that ruling, effectively upholding it.

litigationOne man convicted 17 years ago of eight counts of sexual contact with several girls under the age of 13 sued prosecutors, arguing that the rules keeping him on the registry — with his photo, name, address listed publicly — for life were unconstitutional. Last November, after the Supreme Court declined to take up the 6th Circuit decision, the state Court of Appeals agreed, saying those rules no longer apply to him.

But it’s different for another man convicted of touching two girls under the age of 16 while drunk 24 years ago in another state but who has had a clean record since. Last September, as a “Tier 2” offender, he was expecting to come off the registry after nearly a quarter century. But he was abruptly told by police that his case had been reviewed and that since one of those girls was under 13, he’d stay on the list — and be listed among the worst offenders on “Tier 3” — for life. To this day, under Michigan law, he’s subject to all those restrictions from which the first man has been freed.

The only difference is that one went to court.  (More…)

Read the full article at Detroit Free Press

Federal Judge Rejects Lawsuit by 134 SO Registrants Claiming Harm

The Idaho Statesman reports that a federal judge in Boise has rejected a lawsuit challenging Idaho’s sex offender registration laws, but the 134 anonymous sex offenders who brought the lawsuit have the option to refile the case if they can show the current laws caused them actual harm.

“One cannot simply name a large group of Plaintiffs, allege a dozen causes of actions, and expect the Court to figure out which plaintiffs have suffered which harms,” the judge [U.S. District Judge David Nye] wrote in the ruling released May 17.

They’ll also have to show any harm they suffered outweighs the benefits that sex registration laws offer society, Nye said.

“While the outcome of certain regulations may negatively affect a person socially, economically or even legally, the Court must weigh any competing interests,” the judge found. “Time and time again, Courts have found that the protection of society outweighs any inconvenience or diminution in rights suffered by registrants.” (More…)

Read the full article at Idaha Statesman.

Today, They Stamped “Sex Offender” on My Drivers License

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I’d been dreading this day for months – the final day before my Oklahoma state driver’s license expired.  Recently, my state had passed legislation requiring that the licenses of those convicted of aggravated sex offenses be marked “Sex Offender” in bold capital red letters in two different locations on the front of the card.

Red letter days are supposed to be joyful occasions, but not so much in this case.  I certainly wasn’t going to submit to this particular humiliation by renewing my license any earlier than necessary, so I procrastinated until the very last moment.  Perhaps I was simply in denial.  Maybe I was hoping against hope that our elected representatives and the courts would miraculously come to their senses and see the utter insanity of this policy before Thursday rolled around.  But, of course, that didn’t happen.

That morning, I prepared myself mentally by indulging in a sumptuous meal.  I’ve always believed that bad things seem even worse on an empty stomach.  I showered, shaved, and put on a new shirt.  “Look good, feel good, and you’ll be at your best,” is what my mother always told me.  I drove the scenic route to the licensing agency.  I was in absolutely no hurry to do this.  I pulled into the parking lot, took a few deep breaths, and strode into the airy office with a smile on my face that didn’t reflect the churning in my stomach.

For the first time in my life, I was hoping for a long line…  and yet there I was, the only customer in the place.  A woman beckoned me to her station, and I handed her my expiring license with a smile.  “I need to renew this,” I said.  I silently considered adding some pithy remark befitting a condemned man on his way to the gallows but realized that I’d probably then have to explain it, which would only make things worse.  She cheerfully invited me to have a seat in another lady’s cubicle and I did.

She asked me if any of my information had changed.  I thought, everything has changed.  My life has been turned upside down. I was nearly bankrupted. Society now considers me a monster.  I smiled and said, “No, nothing’s changed.”

She was undoubtably viewing my information on her computer screen and the digital proof of the license as we chatted.  SEX OFFENDER.  Big.  Bold.  Red.  Letters.  If this perturbed her in any way, she gave no indication of it whatsoever.  Instead, she asked, “Are you a veteran?”

I responded, “Yes, I am.  Why do you ask?”

She positively beamed, “We can print VETERAN on your license!  You know, in case you want to get a military discount while shopping or at restaurants!”  I chuckled and told her to go ahead and add it.

Not that I’ll be showing off my new red-letter license to the cashier at IHOP anytime soon.