Sunday, July 7, 2013

Oklahoma and Ohio have Ruled Restrictions for RSO’s as Punitive and Retroactive Application of them as Unconstitutional, it Could Happen in Virginia if Someone Takes Up a Challenge

On June 25, 2013 the Oklahoma Supreme Court ruled that restrictions imposed upon registered sex offenders in their state are in fact punitive and not administrative. Also in the ruling the court stated that any retroactive application of laws upon registered offenders including re-classifications and prolonging their required time to remain a registered offender are both unconstitutional.

Oklahoma must now take steps to return the original classification and to remove anyone who had already met their original requirement of registration this in the end will cost the state tens of thousands if not hundreds of thousands of dollars. The real ramifications of this ruling will be unfurling for months because numerous inmates currently serving time for violating state sex offender registry laws should have their convictions overturned and be entitled to release. 

Ohio previously had to adhere to similar rulings from their state Supreme Court and their costs did reach into the hundreds of thousands. 

       In Ohio       
  1. June 2010- Retroactive/mass re-classifications
  2. April 2011- Retroactive mandate to registration for convictions before Adam Walsh Act/ AWA existed
  3. July 2011- Adam Walsh Act/AWA mandated registration declared punitive not administrative
  4. April 2012- Retroactive mandate of lifetime registration for juveniles
All determined to be unconstitutional. 

So why does any of this matter here in Virginia?  

Well, for the last 5 General Assembly sessions I have been the one voice of reason pointing out that the majority of proposed bills here in Virginia against registered sex offenders has nothing to do with public safety, they aren't simply administrative but are actually punitive and they are all based on myth and fear instead of on any facts or empirical evidence.  

Also, most bills proposed here in Virginia are still being written as retroactive and are only amended if I point out the issues with ex post facto. Some of the more senior and knowledgeable Senators and Delegates have also recognized this and agree that the bill can not move forward as retroactive. 

But the main reason is because 

#1 Fiscal Impact Request from 2013 Virginia General Assembly Legislation per the Virginia Criminal Sentencing Commission was….. Sex Offenders!

The Virginia Criminal Sentencing Commission is not a Legislative branch like the Virginia State Crime Commission  The VCSC is a Judicial branch, they mainly conduct studies and gather data on sentencing guidelines in Virginia.

A little known fact for most citizens is if the VCSC decides to change a sentence guideline for any crime a bill does not need to be submitted at the yearly General Assembly session in Richmond. The proposed change is just listed in the VCSC December report and unless a lawmaker proposes a bill in-time for the January session NOT to allow the VCSC change to take effect that upcoming July it automatically becomes law with no discussion, debate or media attention. 

I’ve been monitoring the VCSC meetings for the last 3 years and I’ve noticed that they have never decreased any sentencing guidelines only increased them. I personally find that very interesting because at the Federal level there has long been discussions about the Over-Criminalization of America not just because of Federal overreach into matters that should be handled by the states but also because of the heavy use of mandatory minimums stripping judges and juries from weighing the evidence in individual cases before deciding on a sentence. 
On June 14, 2013 the U.S. House Judiciary Committee held its first hearing on the Over-Criminalization of America which Rep. Bobby Scott sits on and one of the invited speakers was Richmond Attorney Steven Benjamin. All the testimony from the Chairman to the invited speakers can be found here. At a Federal level the much needed discussion of scaling back the number of crimes and the lengthy prison sentences is finally occurring but still not at a state level. Why the disconnect? 

Every G.A. session in Virginia new and increased mandatory minimums are proposed and passed, as is increasing the few misdemeanors we still have into felonies. The Administration and most of the Legislators want to be “tough on crime” but very few want to be “smart on crime”. 

For at least the last 3 years the VCSC has considered enhancing the Virginia Sex Offender Risk Assessment form (slide 26). Why? When there are so many other crimes at such a higher rate in Virginia. 

The Virginia Criminal Sentencing Commission compiles the fiscal impact statements for every submitted bill during the General Assembly session. Every session including in 2013 “sex offender” bills were the number one request by patrons (slide 14) even though sexual assault and rape are near the bottom of the annual list of crimes committed in Virginia. Plus sexual crime recidivism rates are the second lowest of all re-offense rates. But yet year in and year out our Virginia lawmakers are drafting and proposing a landslide of bills to spend more money and to throw more resources at the Virginia Sex Offender Registry, instead of programs to stop abuse and crimes from occurring in the first place.  

Why? Because it makes for good campaign and website material they'll be considered “tough on predators”. 

We need a smarter, more accurate registry in Virginia not a bigger more expensive one.

Virginia State Crime Commission Schedule for 2013 Includes Sex Crimes

The Virginia State Crime Commission is a criminal justice agency established in the legislative branch of government in accordance with section 30-156 et seq. of the Code of Virginia. 

The purpose of the Commission is to study, report and make recommendations on all areas of public safety and protection. In so doing, the Commission shall endeavor to ascertain the causes of crime and recommend ways to reduce and prevent it, explore and recommend methods of rehabilitation of convicted criminals, study compensation of persons in law enforcement and related fields and study other related matters including the apprehension, trial and punishment of criminal offenders. 

The Commission is directed to make such recommendations as it deems appropriate with respect to the foregoing matters, and shall coordinate the proposals and recommendations of all commissions and agencies as to legislation affecting crimes, crime control and criminal procedure. The Commission cooperates with the executive branch of state government, the Attorney General's Office and the judiciary who are, in turn, encouraged to cooperate with the Commission. The Commission also cooperates with governments and governmental agencies of other states and the United States. 

The Commission consists of 13 members that include nine legislative members, three non-legislative citizen members, and one state official as follows: six members of the House of Delegates to be appointed by the Speaker of the House of Delegates in accordance with the principles of proportional representation contained in the Rules of the House of Delegates; three members of the Senate to be appointed by the Senate Committee on Rules; three non-legislative citizen members to be appointed by the Governor; and the Attorney General or his designee. Non-legislative citizen members must be citizens of the Commonwealth of Virginia. The term of each appointee is for two years, except that the Attorney General and legislative members shall serve terms coincident with their terms of office. The Commission elects a chairman and vice-chairman annually, who shall be members of the General Assembly. 

The Crime Commission was referred a number of studies during the 2013 Session of the General Assembly. Additionally, the Commission plans to continue its study on Illegal Cigarette Trafficking, as well as continue to participate in the ongoing DNA Notification Project. 

Sex crime issues dominate Va. crime panel's agenda, April 26, 2013

2013 Studies 

  1. Child Sexual Abuse  AND Sexual Conduct between Teachers and Students HJ 595 
The Crime Commission was directed by the General Assembly to study the laws and policies governing the investigation of alleged child sexual abuse in the Commonwealth AND the feasibility of creating a criminal penalty for sexual conduct between secondary school teachers and adult (18 year old) students. The resolution also mandated that a work group be created for Part 1 of this study (laws and policies governing the investigation of alleged child sexual abuse in the Commonwealth) to assist in fulfilling the study directives.  The work group is comprised of about 30 representatives from around the state with experience in handling child sexual abuse cases.  The first meeting was held on June 20, 2013, where it was decided that a second meeting would be necessary. See schedule below. 

  1. Forced Prostitution SB 1273, HB 1541 and HB 1991
The Crime Commission was requested to review the expungement of charges in cases involving forced prostitution, as well as the disposition of minors engaged in forced prostitution.  Staff will review current statutes for possible changes and review any academic literature and studies on the topic including any unintended consequences. Staff plans to meet with involved organizations to seek their input on the issue.