Category: Judicial

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!

higgins2
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?

Picture Yourself a Registrant

restaurant-small1by Michael M.

Consider this hypothetical scenario:  While your 15-year old son is scrolling through the pictures on his phone, you catch a brief glimpse of a nude photo and ask him to hand the phone over. Reluctantly, he does, and upon inspection you discover that his girlfriend – who is also 15 years old – has recently sent him a couple of nude photos. Would you call the police and report it?

If you’re like most parents, the answer is probably going to be no.

Related imageMost parents would likely confiscate his phone, revoke all privileges for a reasonable period of time, and continue to lecture him until his head explodes. You might even contact the young lady’s parents to ensure that an adequate level of “boom lowering” is taking place in that household, as well. Naturally, they self-righteously proclaim that their innocent little angel would never do such a thing! So, to prove your case, you send them the photos. That’s when “Murphy’s Law” begins to exert its awful influence.

Instead of thanking you and nominating you for “Parent of the Year,” the young lady’s parents are suddenly and inexplicably angry about the fact that you’ve seen naked pictures of their little angel. They rant and rail at you over the phone, calling you a pervert and plenty worse. You hang up, your head reeling from the unexpected attack. You shake your head, mumbling to yourself, “No good deed goes unpunished!”  You delete the offending photos from your son’s phone and go back to your daily routine.

Related imageWithin a couple of hours, there are a two police officers at your door with a search warrant. After talking to your son (who is still mad at you) and seizing all phones, tablets, and computers in the house, they inform you that you are being arrested for possession of child pornography, exploitation of a minor, distribution of child pornography, destruction of evidence, and obstructing an investigation. They explain to you that some of those charges carry a potential twenty-to-life sentence and that it’s their fondest wish that you’ll grow old and die from scabies in prison. Then they give you a scribbled receipt for your stuff, which you’ll never see again.

Months later, while still in jail, you have several meetings with your attorney where he explains your choices. You can fight these five charges, but the prosecutor only needs to convict you of one of them to put you away for a long, long time. Sure, he says, you can definitely beat some of the charges, that’s not a problem. But expecting to beat all five charges – especially when prosecutors have a 97% conviction rate – is unrealistic. He tells you that your best bet is to plead guilty to a single charge that will result in a maximum sentence of five years in prison. In return for your plea, the prosecutor will drop the other four charges. With luck, he says, you’ll be home in a year or two. He says this with a used-car salesman’s grin and pats you on the back as if you’ve just won the lottery.  As much as this plea agreement goes completely against the grain of everything you’ve ever believed in, you agree to do it. It isn’t until three months later, at your sentencing hearing, that your attorney whispers to you, “Did I forget to mention that this plea agreement means you’ll be listed on the sex offender registry?”

Welcome to the never-ending hell that is life as a registrant. Even if you are lucky enough to be removed from the registry someday, you’ll always be referred to by the authorities and the media as “a sex offender who no longer has to register.” That label has a special kind of glue.

Perhaps that hypothetical scenario is a little too far-fetched for you to believe that it could ever happen to you. Maybe you can’t really relate to it because you don’t have kids, or you simply can’t imagine our judicial system being so fatuously dysfunctional. Fair enough. Let’s talk about some things that you may have actually experienced in real-life.

selfie1Have you ever sent a nude photo of yourself to another person without first getting permission to do so from the other person? In most states, without explicit prior consent, that’s considered a sex crime. And if you didn’t verify that the person was over 18, you may have unwittingly committed a sex crime against a minor. Ignorance of the person’s age is not a defense, nor is being lied to by the minor.

Have you ever engaged in a sexual act while under the influence of drugs or alcohol, or with someone else who was under the influence? An inebriated person cannot legally give or get consent. How do you know if someone is too inebriated to consent? That’s a very good question! Police officers regularly resort to breathalyzer or blood alcohol tests to determine if a person is too drunk to drive. So, how is an average person supposed to know if someone is too drunk to engage in sex?

Image result for furry handcuffsSpeaking of consent, this bears repeating loudly and often: Minors cannot consent to sex under any circumstances, even with other minors. A person who is asleep or unconscious cannot legally consent to sex. A person with a mental illness that impairs his or her judgement is cannot legally consent to sex. A person who is restrained by bondage or handcuffs cannot legally consent to sex in most states. Generally speaking, students cannot consent to sex with their teachers, prisoners cannot consent to sex with their jailors, patients cannot consent to sex with their doctors, and clients cannot consent to sex with their lawyers.

Ever pinched, patted, or swatted someone on the behind without first getting his or her permission to do so? That’s considered a sexual assault just about everywhere. Maybe you’re thinking, “No worries, I’ve only ever done that to my wife.” Sorry, there’s no spousal exemption from the law.

tracylords
Tracy Lords

Do you ever watch porn? How do you know for certain that the porn stars you’re ogling are of legal age? More to the point – how could you possibly know? In 1987, porn super-star Tracy Lords was a coast-to-coast sensation with dozens of films to her credit when it was discovered that she had used false identification to get hired when she was just 15 years old. Retailers nationwide scrambled to pull her films off the shelves to avoid child pornography indictments, and several industry moguls went to prison.

Consensual sex between teenagers under the age of 18 is a registry offense in twenty-nine states. Cohabitation with a member of the opposite sex is still illegal in four states.  Being HIV-positive can result in involuntary civil commitment after incarceration or being placed on the sex offender registry in six states, and thirty-three states have HIV-specific criminal statutes. Soliciting a sex-worker can land you on the registry in five states, even if you never had sex. Sodomy (defined as “unnatural sex,” which can include oral and anal sex) is still illegal in twelve states, despite a Supreme Court decision striking down state anti-sodomy laws. Urinating in public can land you on the registry in thirteen states. Exposing yourself, even if there is no sexual or lascivious motivation – such as when streaking, flashing your breasts, or skinny dipping – is a registerable sex offense in thirty-two states!

The average person – unless he has spent his entire life in a cave on a remote, deserted island – has probably committed at least a few of these “sex crimes” and yet most are spared from being chewed up by our crapulously obnoxious legal system.

It’s easy to imagine that every person who is listed on the sex offender registry is a monster who is an imminent danger to the community, but that simply isn’t the case. While there will always be a small percentage of registrants who recidivate, the overwhelming majority of registrants live quiet, lawful lives, harming no one in the process.

Those people deserve a chance at redemption – just as you would, if you were on that list.

The “Predator” Granny Next Door

restaurant-small1by Michael M.

[The following is a true story, published with permission, which has had significant and lasting consequences for everyone involved. The names and some minor details have been changed to protect those individuals from further harm and stigmatization.]

In 2003, JoAnne Hester was a 39-year old married mother of three children, carving out a typical small-town existence in a rural county of the State of Virginia.  As a working mom, she certainly had her fair share of parental challenges, but the most vexing problem in recent months was her oldest child.

JoAnne’s 14-year old son Erik had been going over to the house next door an awful lot over the past few months, which seemed extremely odd, since there were no other kids living there – just Brenda Mears, a 28-year old divorcee who seemed to have way too much free time on her hands. When JoAnne confronted Erik about it, he claimed that Brenda was teaching him how to do scrapbooking, a hobby he’d never shown any interest in previously.

mom-sonSkeptical, JoAnne told Erik that he was not to spend any more time at Brenda’s house, a decree that angered him, but which he grudgingly accepted.  Even so, just a few days later, JoAnne saw him exiting Brenda’s front door one afternoon and confronted him about it.  There was a shouting match on the front lawn punctuated with sharp denials from Erik and escalating threats of punishment and loss of privileges from JoAnne.  By the end of the confrontation, Erik was grounded for a month.  JoAnne naively thought that would put a stop to his increasingly out-of-control behavior.  She was wrong.

Two weeks later, on her way down the hallway to the bathroom at three in the morning, JoAnne found Erik’s bedroom empty.  In a fit of anger, she called the local police. When they arrived, she told them that her son was most likely next door, ensconced in Brenda’s bed.  The policemen went next door and pounded on Brenda’s front door.  After what seemed like several minutes of knocking, Brenda answered, wearing only a robe.  After some questioning, she admitted that the boy was in the house.  They took the boy aside, and questioned him, too.  His responses must have been damning, because a short time afterward, the officers arrested Brenda for carnal knowledge of a minor.

Next, the officers spoke to JoAnne and asked how long this had been going on.  Without thinking for a moment that she, herself, could become the target of a police investigation, she replied that Erik’s suspicious visits to Brenda’s place had been going on for at least three or four months.  After a huddled conversation amongst themselves, the officers advised JoAnne that she was being arrested for failing to report a sex crime in a timely manner, a sub-section of the state law against indecent liberties with a child by custodial or supervisory relationship.  By legislative decree, that charge is classified as a “violent” felony.  Her son Erik was also taken into custody at that time and placed in juvenile detention.

A few months later, while still in the county jail, JoAnne sat in a bare cubicle and listened in disbelief as her attorney advised her to accept a plea bargain that was being offered by the State’s Attorney.  The proposed deal would result in a maximum twelve-month prison sentence, her attorney explained, rather than risk a possible twenty-years-to-life sentence by going to trial.  Though her head may have been spinning at the time, to the best of her recollection, JoAnne swears that her lawyer never told her that accepting this guilty plea would require her to register as a violent sex offender for the rest of her life.  She just knew that a maximum of twelve months sounded a hell of a lot better than a minimum of twenty years in prison.

WOMEN-N-JAIL-1She took the plea.  She spent twelve months in a state prison as a model prisoner.  Thirty days prior to her release, her prison caseworker informed her for the first time that she would be placed on the state registry upon her release.  She says she was blindsided by this news, and she spent her last month in prison in a daze of stunned disbelief.

That was fifteen years ago, and JoAnne is still on VADOC probation and considered a violent sex offender by the state.  Due to other hardships in her family she is now raising four of her six grandchildren, and yet she isn’t allowed to take them to school or pick them up, can’t attend any school sporting events or recitals, can’t take them to play at the park or swim in the community pool, and can’t take them trick-or-treating.

She’s happily married, but the hardships of being on the sex offender registry have taken a terrible toll on her relationship with her husband, who is also affected by the irrational residency restrictions, endless humiliation and harassment from the community, and the added expense and hassles of having to arrange for others to take the kids where they need to go every day.  She can petition the state to allow her on school property,  but the process is a lengthy one, and may be denied.

JoAnne suffers her fate in relative silence, fully aware that most people will simply assume that because she is classified as a violent sex offender that she must therefore be a predator of the highest magnitude and worthy of the scorn that they heap upon her and her family.  The public is largely unaware that 83% of the sex crimes under VA law are classified as “violent,” whether they involved any actual violence, or not.

She and her husband are barely making ends meet financially, which means that pursuing a legal remedy for her situation will be difficult, if not impossible.  She tells her story to anyone who will listen, but nothing changes.  If anything, the restrictions and persecution have only gotten worse for her over the past few years.  The one island of stability in their lives has been the fact that they have been able to stay in their home. Virginia has 500 foot residency restrictions, unlike many states which have 2000 or 2500 foot restrictions which often force registrants out of their homes and into homelessness.

The people on the sex offender registry are individuals, each with a story to tell.  Their crimes are incredibly diverse – sometimes laughable, other times horrifying.  Registrants exist on a spectrum ranging from the seven-year old who gets caught playing doctor with his little sister on one end to the psychopath who rapes and murders strangers for kicks at the other end of the spectrum.

The great majority of registrants are at neither of those extremes.  Most are simply common people who have made some extraordinarily bad decisions, people who have paid an enormous price for their mistakes, and now simply want a chance to rebuild their post-incarceration lives free of fear, harassment, or discrimination.

Keeping them shamed, unemployed, or homeless serves no purpose but vengeance, and makes our communities less safe for everyone.

The Sex Offender Registry: A Gorilla on the Basketball Court

restaurant-small1By Michael M.

 Why does the public ignore the obvious unconstitutionality and overt cruelty of a sex offender registry that not only fails to accomplish its stated purpose – keeping our communities safer – but also condemns hundreds of thousands of registrants and their family members to a lifetime of humiliation, harassment, and possibility of unemployment, homelessness, and vigilantism?  It would be easy to assume that this apathy and inattentiveness by the public is simply the result of hatred, bias, or ignorance but there may be something else at work here, something that scientists have dubbed “inattentional blindness.”

gorillaIn 1999, psychologists Daniel Simons and Christopher Chabris conducted an experiment that became world famous and was the subject of their 2010 book entitled, “The Invisible Gorilla.”  In their experiment, test subjects were shown a video of a basketball game after being asked to count the number of times the basketball is passed by players wearing white shirts.  During the game, a person in a gorilla suit strolls to the center of the screen, pauses to beat on his chest, and then wanders off.  After viewing the video, as many as 70% of the test subjects had no recollection whatsoever of a gorilla being in the video.

kenneth conley
Officer Kenneth Conley

This study has become the cornerstone of various theories and further experimentation centered on the phenomenon which became known as “inattentional blindness.”  The legal community took further notice of this topic when an undercover police officer named Kenny Conley was convicted of perjury and obstruction of justice in 1995 for claiming that he did not see a fellow officer beating a suspect as he ran by in pursuit of another suspect.  The jury simply did not believe that it was possible to miss something that obvious and convicted Officer Conley of lying to protect his colleague.

Simons, Chabris, and others decided to conduct a test to see if it was indeed possible that Officer Conley hadn’t seen the incident.  They set up a similar scenario and asked test subjects to chase a suspect and count the number of times the suspect touched his head while running. The route took the test subjects right past an on-going fist fight yet, afterwards, as many as 72% of the test subjects had no recollection of seeing the fight, which “obviously” occurred right in front of them.  As a result, Officer Conley was exonerated in July 2000.  The results of this study were published in 2011 under the title, “You do not talk about Fight Club if you do not notice Fight Club: Inattentional blindness for a simulated real-world assault.”

The conclusion of this and other similar studies is rather straightforward and simple.  Our brains pay attention to what we think is important or, at the very least, what others tell us is important.  Everything else is subconsciously categorized as being irrelevant and is discarded before having any effect on cognition or thought. As a result, we are literally blind to it; we simply don’t see it.

misdirection-3-638The mainstream media tells us daily what we should be paying attention to.  Their laser-like focus is invariably trained on sex offender registrants, high visibility or highly-placed pedophiles, and sex-traffickers.  The constant drum-beat and warnings of “stranger danger” not only stoke our natural anxieties as parents, but it also blinds us to the potential dangers that may exist right under our noses.

97% of the sexual assaults against juveniles are perpetrated by someone the victim knows.  59% are committed by acquaintances; 34% by family members.  Less than 7% of sexual assaults against juveniles are committed by strangers and an even smaller fraction of that number is attributable to known sex offenders.  “Stranger danger” is largely a myth.  Targeting registered sex offenders as your primary focus of fear and loathing is not only irrational, it is dangerous.

As for America’s “epidemic of missing children,” over 91% of them are runaways. 5% are the victims of family abduction. Less than 1% of the missing children were abducted by strangers and most of those were not registrants.  Again, the conspicuous focus on registered sex offenders makes the public blind to the real dangers that abound in our society.

Bu what about sex trafficking?  Surely, that is an issue we can all agree needs more attention and aggressive prosecution.  Yet, according to the National Center for Missing and Exploited Children, an astonishing 88% of the children who end up being sex-trafficked became victims after going missing from government social services and foster homes!  It isn’t some creepy guy at the park who is snatching children from their homes and turning them into chattel, it is the very same government that is fueling your unwarranted fears of “stranger danger” and registrants.

Inattentional blindness causes the great majority of Americans to overlook the unconstitutionality and cruelty of a sex offender registry that makes our communities less safe by focusing your attention where it is least needed and accomplishes absolutely nothing.  It is a classic case of misdirection, blinding you to the political incompetence, law enforcement impotence, and contemptible court decisions that are so pervasive in the realm of sexual offense laws and policies.

It’s time we “just said no” to the media hysterics and political grandstanding about sexual offenses and start paying attention to the (now) painfully obvious gorilla on the basketball court.

Sexting is Not Pornography

by Dwayne Daughtry

Growing up as a teen, I had no idea what “age of consent” meant. Typically most teenagers’ understanding of the law is obey the speed limit, don’t drink and drive, and basically, don’t harm another person. However, in today’s modern society, age of consent issues have become an uncomfortable leap forward in birds and bees education because of its effects on families and anyone capable of holding a smartphone.

Image result for sextingStudies show that sexting and exchanging nude photographs is somewhat common among youth. Kids do not understand the law because sexting, to them, is a private exchange between two consenting parties.  Essentially, to their interpretations, it has become a new safer sex method and replacement to defunct gloss magazines. When a parent or adult explains to youth the consequences of sexting as an issue that could wind them up in jail, it seems like a parental discussion rather than a stern warning. That is, until it actually affects them with criminal charges.

Youth understanding the effects of sexting is a hit and miss market because of public embarrassment to begin discussions about sex education. Long gone are the boy’s bathroom gang holding up proof of girls panties too as a measure they have reached some form of adulthood. Smartphones have replaced such high-school rituals. When parents become involved because of policing private exchanges, the complications get much worse and in most cases places adults in a precarious situation because there is no pamphlet to explain what crosses parental discipline versus notification of authorities.

This is why children are now the most vulnerable to be listed as sex offenders in the United States because in many cases police bypass the parental obligations and enforce laws intended for professional performance to become cosigned parents and social workers.

Sexting isn’t going away anytime soon. Youth have learned to circumvent technology by no longer engaging in SMS texting or using software to delete its traces. This is why smartphone applications such as Snapchat, Signal, or Smiley Private texting are huge hits. Applications such as Blur, WhatsApp, and Digify allow photos to self-destruct. The amount of technology is outpacing public policy and keeping a step beyond authorities. The critical question is when will it backfire and be evidence down the road? Current public policy and laws are not attempting to facilitate a unified national age to protect young people.

This is a discussion that folks must engage in and advocate updates to current policy. However, the conversation should be at the heart of a feasible and humane age in keeping with the rest of the industrialized world. Once we institute a level field that everyone can understand then and only then will be able to engage in sensible dialog.

Read the full article at Subjective Belief.

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

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