Thursday, March 20, 2014

Alert: U.S. Supreme Court May Take Up Virginia Sex Registry Case


A Virginia RSO who was retroactively reclassified with the punitive legislation passed in 2006 and 2008 by the Virginia General Assembly is challenging the law as it not only violates ex post facto, but denied her due process and was 100% punitive as no individual assessments were done prior to the increase in classification (see article below).  

The Virginia General Assembly retroactively reclassified hundreds possibly thousands of Registered Sex Offenders in 2006 AND 2008. I’ve submitted FOIA’s with the Virginia State Police looking for the actual quantities and I’ve been denied the data. 

When this occurred these offenders became “lifers” with no opportunity to ever petition for removal. Some offenders had already been removed a few years beforehand and were returned to the Virginia Registry because of this legislation. 

Precedence has been set that mass, retroactive reclassifications are unconstitutional in:
·        Kansas: July 2013- Retroactive extension of time required to remain on registry declared punitive
·        Nevada: December 2011- Retroactive/mass re-classifications and residency restrictions. "The application of these laws retroactively is the equivalent of a new punishment tacked on to the original sentence," the judge wrote in the injunction.
·        Oklahoma: June 2013- Restrictions imposed upon registered sex offenders are in fact punitive and not administrative. Also in the ruling the court stated that any retroactive application of laws including re-classifications and prolonging their required time to remain a registered offender are all unconstitutional.
·        Ohio: June 2010- Retroactive/mass re-classifications unconstitutional
·        Indiana: September 2012- The appeals court said the state would benefit by developing procedures to correct registry errors: “Erroneously labeling an offender a sexually violent predator imposes unnecessary monitoring costs on state law enforcement and reduces the efficacy of the registry in providing accurate information to the public,” the ruling said.

(When Virginia erroneously increased Non-Violent to Violent Offenders in 2006 and 2008 that made the offenders “lifers” which includes a lifetime of state monitoring). 

In Ohio’s case the Attorney General’s office spent months and hundreds of thousands of dollars to return 19,000 to 26,000 offenders (multiple articles have differing numbers) to their original classifications. 

I am thrilled that someone who was affected by the reclassifications in the Commonwealth has found the courage to challenge it and it's being considered by the U.S. Supreme Court!

Being her conviction was in 1993, before the Virginia Sex Offender Registry existed (1997) and registration is for crimes after July 1, 1994 she could and should challenge the requirement to register when her conviction is BEFORE registration was a possibility. That precedence has been set as well in:
·        Hawaii: 2001- Retroactive mandate to register for convictions before the registry existed is an ex post facto violation
·        Maryland: March 2013- Retroactive mandate to register for convictions before the registry existed is an ex post facto violation
·        Ohio: April 2011- Retroactive mandate to register for convictions before the act existed 

I am not an attorney and I don’t know if her challenge will only apply to her or to everyone re-classified in 2008, or even 2006. This is the U.S. Supreme Court, so I think it would be everyone in every state that has been retroactively reclassified with legislation  based on a conviction and not with individual assessments based on risk.

Right now we just wait and see what happens.  

Mary Devoy 

She was a 24-year-old swimming instructor who had a sexual affair with a male student under 16. 

The woman was convicted in Virginia in 1993 of unlawful sex with a teenager and served 30 days in jail. She was listed on the state's sex offender registry, and could have tried to get her name removed at some point, but didn't. 

Fifteen years later, the state passed a new law that reclassified her and thousands of others as violent sex offenders. The woman — identified in court papers only as Jane Doe — has unsuccessfully challenged the law, and now her lawsuit is on the agenda Friday when the justices of the U.S. Supreme Court meet in private to consider taking up new cases. 

Her appeal comes as states around the country face growing public pressure to protect people from repeat sexual predators. Those labeled sex offenders are being subjected to a host of new limitations, including where they can live, work or travel. But the new restraints have not come without complaints, and courts in Georgia and Ohio have ruled that sex offender laws in those states went too far. 

Under Virginia's 2008 law the woman, who is now married with three young children, cannot enter public or private school property or attend church services without seeking permission from the state court or the local school board. But she hasn't done that because she said it risks revealing her children's identity and could take years to resolve.

She wants the Virginia law thrown out, claiming the new restrictions interfere with her constitutional rights to raise and educate her children and violate her right to procedural due process.

A federal district court rejected her claims, and the U.S. 4th Circuit Court of Appeals agreed last year in a 2-1 ruling that she had to first exhaust state remedies before challenging the law. The dissenting judge argued that she had already suffered an injury and should be able to challenge the law immediately. 

"In her case, she never admitted to a violent crime, nobody told her she was accused of a violent crime, and 15 years later they say, 'We decided you're violent and no one can prove that we're wrong,' " her lawyer, Marvin Miller, said in an interview. 

Although her name is publicly available in Virginia's sex offender registry, the district court allowed the woman to file her case under a pseudonym to protect her privacy and that of her children. Lawyers for the state consented to the arrangement, which is rare and usually reserved to protect the victims of sexual abuse cases. 

Like dozens of states, Virginia has moved to bolster its sex offender registration and notification laws since Congress approved the Adam Walsh Act in 2006. The federal law, named for a Florida boy abducted and murdered in 1981, sought to get states to better coordinate and expand their sex-offender registries. 

The changes in Virginia and elsewhere have seen the rolls of sex-offender registries swell to include those convicted long ago and those whose offenses were previously considered too minor to be placed on a registry. Lawmakers see the changes as a way to keep children safe from sexual predators who might strike again.

Virginia argues in court briefs that it was entitled to create the new registry to protect residents from possible repeat sex offenders. It relies on a 2003 Supreme Court case that upheld a Connecticut sex offender registry. The state says it has offered a reasonable process for anyone on the registry to seek review in state courts and the school board to gain access to school property. 

"Although Doe may present a sympathetic case because she now has school-aged children of her own, the presumption against allowing access would apply equally to the most hardened offenders, including the 50-year-old man convicted of having sexual relations with a 13-year-old," attorneys for the Virginia Department of State Police argue in their brief.

The new restrictions have raised concerns that people convicted long ago and considered at low risk of re-offending will be publicly humiliated and made targets for harassment and violence. Mary Devoy, an advocate for reforming Virginia's sex offender registry laws, says the expanded listings also make it more difficult for people to determine which listed offenders are the most dangerous. 

"The lawmakers feel better about being tough on crime and the public feels better because they are on the registry for life," Devoy said. "The public's attitude is no second chances, no redemption, no rehabilitation."