This is another guest post written by my former co-worker, Kathy Manley. Kathy is an attorney at Kindlon & Shanks in Albany, New York. A kick ass firm with kick ass lawyers. When I was in New York, Kathy was the primary writer, doing appeals, motions, etc. She’s recently stepped outside her comfort zone and is trying cases and I’m sure she’s killing it. Here’s Kathy on the sex offender registery litigation the firm has undertaken recently:
I mainly deal with criminal cases, but over the last few years we have also taken on some of the most insane sex offender laws in a series of civil suits. Politicians love to score political points by passing stupid, counterproductive laws aimed at depriving registered sex offenders of housing, employment, and, well, basically, everything including their humanity. Which tends to make them feel like outcasts, drives them underground and makes them more likely to commit further crimes.
There’s a lot of misconceptions here, starting with the assumption that all registered sex offenders are pedophiles. Pedophiles represent only a small percentage of those who are forced to register, even if you only look at the level twos and threes (in most jurisdictions those are the supposed mid-level and high-level offenders, and in NY they are the ones on the searchable internet list). Many never offended against a minor at all, and many more – probably the majority – had some sort of sexual conduct with a teen. Sometimes this involved an underage girlfriend or boyfriend. The vast majority of people on the sex offender registry present no risk to the public.
A related misconception is that there are very high recidivism rates for sex offenders. When these crazy laws are passed, especially by county legislatures and town boards, the pols scream about high recidivism rates. When you ask what this is based on, it turns out they have absolutely nothing to back it up. In fact, the studies that have been done show that overall there are significantly lower recidivism rates for sex offenses than for most other crimes. When it comes to actual pedophiles (those who have a primary attraction to pre-pubescent children) there do tend to be higher rates, and less likelihood of success in treatment. But, as I said, these are the minority of people on the registry. If there is any value in the registry at all, it may be in monitoring confirmed pedophiles who are resistant to treatment. But it’s a lot harder to do that when the registry is cluttered with a bunch of 21 year olds who had 16 year old girlfriends.
When looking at sex offender policy the sane thing to do would be to get input from people who are well-educated about this population, i.e. treatment providers, and parole and probation officers, among others. It turns out that these people are almost always opposed to things like local residence restrictions and other crazy but popular laws. (In fact it was a parole officer who first contacted me about challenging one of the county laws.)
A few years ago lawmakers apparently started a contest to see who could drive more sex offenders out of their state or county by passing laws saying that registered sex offenders could not live within 500 (or even 1000 and in a few cases 2000) feet of a school, daycare center, park, etc. This became a huge headache for parole and probation officers, who are supposed to find housing for these people – sometimes there is simply no place to put them, and they stay in jails, hospitals or (in Florida for example) under bridges. In Iowa a few years after a statewide residence law was passed a study showed that nearly half of all registered sex offenders in the state had simply disappeared, gone underground. Brilliant strategy if the point is to monitor people. So they actually scaled back the law to make it somewhat less ridiculous.
Here in New York many counties have been passing these residence laws. But, aside from other legal problems, such as ex-post facto, equal protection, due process, etc., it turns out they are illegal – under the preemption doctrine – because the state has already passed many laws aimed at monitoring sex offenders, starting with the registration statute itself, and extending to recent parole and probation regulations. In fact, both the Governor (in an Approval Memorandum) and the new regulations themselves have come out and said that they do not want each locality making its own laws and driving people out of their county or town. Hmm, it turns out that this is the very reason for the preemption doctrine. So we have not only implied preemption but express preemption. This means that even the most conservative and cowardly judges have thrown these laws out when we’ve challenged them.
Unfortunately none of the counties have appealed so no higher court has ruled on this. I was like, oh, please don’t appeal, please don’t appeal, please not the briar patch! But they – or at least their attorneys ( I think some of the legislators tried to get them to appeal – in fact they made the Albany attorney file a notice of appeal but he unfortunately hasn’t actually filed the appeal and probably never will) – haven’t done it. So these laws remain on the books in counties where no lawsuit was filed, and not only that but new counties are still passing them. Chenango County just passed one the other day.
We won in Albany, Rensselaer and Schenectady Counties and did the cases pro bono. We’re pretty over-extended right now so we can’t whack all these moles down when they pop up. It would be really nice if a statewide group like the NYS Defenders Association or NYCLU would take this on with a class action suit or get an injunction or something. (Al O’Connor from NYS Defenders is an expert in this and has the answers to all my questions, but unfortunately they haven’t taken this on in the way I would like.) I don’t generally do civil law so I don’t know this stuff that well.
I was also contacted by two registered sex offenders who had moved out of New York and yet somehow were kept on the NY registry. I looked at the registration statute and it was clearly written to apply only to NY residents. So I wrote to DCJS (Dep’t of Criminal Justice Services) and said there must be a mistake. Their attorney wrote back and said, no, we decided we could keep them on. So I sued and argued plain language, statutory construction, the doctrine against extra-territorial application of statutes, and a few constitutional provisions. Based on a series of unfortunate incidents (or maybe fortunate) the cases got assigned to two different judges. The attorney from the AG’s office wrote a response which was 90 percent irrelevant and then said that the only way people could be removed from the NY Registry is if their underlying convictions are vacated. So then I asked whether DCJS would keep people on after they die and make them provide their new address beyond the grave… I won one of the cases, but the other one is still pending. And all DCJS did was take my one client off the list – all the other out-of-staters are still on there. And then I find out, from a post by Norm Pattis that some jurisdictions are actually keeping people on the registry after death. Wow.
That’s why it’s impossible to write satire these days.
I am a 33 year old male from panama city , florida. When I was 20 years old I cheated on my girlfriend at a party, it turned out the girl was only 15 years of age. I admitted that that the girl performed oral sex on me, but that was it. I was, and am willing to take a lie ditector test at any time to prove once and for all I did nothing against the supposed victims will.Please help me!!!!!!!!!!!!!!! The laws in fl have left me with limited life possibilities. I have a beautiful 7 year daughter, I just want a chance to have a normal life!!!!!!!!!!!! Chuck email me at cfrazier3@knology.net
I am from North Carolina. I recently plead guilty to a misdemeanor sexual battery charge as a plea arraignment from an original felony 2nd degree sexual offense charge. My accuser, another gay male, was someone over 18 years of age that came to my house to meet discreetly for sex. After my accusers friends found out they threatened to tell everyone. In fact it was my accusers friends that went to the police – not my accuser. My accuser said that I performed sex without his permission to save face with his friends in the same room as the police detective. I too offered to volunteer for a polygraph but was told that results are not admissible as evidence or proof in legal cases. This case may sound ridiculous but its becoming more true with others and somewhat reminds me of the creation of the California Sex Offender registry that targeted homosexuals in the mid 1950’s. Therefore, I must register as a sex offender. My appointed attorney was only looking for a plea deal. As he pointed out a southern jury may still harbor anti-gay sentiment. I could not afford to take the risk of being a felon. But with the sex offender registry I should just be labeled that. I am not on any probation whatsoever. But I cannot apply for jobs, school, residence or other issues without first notifying the Sheriffs office – or risk being charged with a felony. Also I am not allowed on any social network to express my first amendment right or I will be charged with a felony. Basically, a person released from prison has more rights than I do and I only have 1 misdemeanor on my record. There is something wrong with the sex offender registry and interpretation of laws in this country. The creation of the sex offender registry not only resonates a scarlet letter. It further silences advocacy of my basic freedom and human rights. I don’t mind not being allowed on K-12 school property. But to tell me that I cannot live 1000 feet from a school or daycare is a statistical moral hazard. Listing my address and other vital information also poses a moral threat to myself, family, friends and neighbors for those that with to threaten me or others simply because we are on a mandated but widely confusing and misrepresented registry of dangerous sexual predators mixed with first time offenders or streakers. The similarities ring like the Nazi days where you were thought to be Jewish or have Jewish ties. You were put on a national registry and forced to live under ever changing conditions and regulations over time. If I had the money to pay for my own lawyer, I would have fought to the end. But that was not my case at that time. Hopefully people will educate themselves that not every person on the sex offender registry is predator or perhaps guilty.
Hello I know two people that are sex offender one of them is a level 1 and the other one I am not share what level they are, but with both of them how it all happen was they were in a relationship with a person that had kids and because the kids were 16 years old and knew just how to work the system the one kid went into school and told the school that her mom’s boyfriend for 5 years was doing stuff to her the reason she did this is because she wanted her drivers license and the man told her no because she wasn’t going to be driving his car because she couldn’t take care of things and until she could show them that she would take care of things she won’t get her drivers license because she could even take care of a little fish.. So the school called the mother and boyfriend in and question them well the 16 year old girl told the school that she lied about it all. After that he stayed with his girlfriend and then it was X-Mas break from school and the 16 year old wanted more stuff and because the man would do what she wanted she told him that she was going to tell them again that he touched her..So when X-Mas break was over again she went to school and told them that he had touched her. Well then they want to the house and charged his with rape. He used all his money up to give to a lawyer and in the long run he was sent to prison for one year and then on parole for 10 years well things were going good until he got a new PO officer and then thinks changed and the girlfriend he was with for 2years the new PO won’t let them be together at all because yes she has kids, but the kids have never been around him and the other thing is he has never done anything wrong for the PO officer’s to do anything to him and this PO officer has told him that he will be going back because this PO officer thinks he will fine something on this man and that no one goes 5 years with no problems when they are on parole. Well to me someone can go that long and longer if they never did the crime. So I was wondering if anyone can help this friend of mine so he can get on with his life like he was before this new PO officer took over…
My boyfriend was given 5 yrs and he did every day of it in sc he got out on Oct 31,2008 he has compliance every day since he has been out we moved to Texas in 2012 and in July of 2016 he was doing a job in Harris county and the lady that he was working for daughter came there to her moms house and was screaming at her mom the police came and when they ask him for his ID he gave it to them and when he came back as a sex offender they took him to jail said that he was living there he told them no I tried to tell them too I ask them to call his SRO. They wouldn’t they put his address down as the place where he was working I got him out on a 5000 bond and a few days later the lady daughter came to where we lived at and called the police and told them that there was a sex offender there that wasnt in compliance they came ask him his name ask him if he was a sex offender he told yes they run his name and called his SOR officer and than told him to have a good night so she had to go on line to find his address cause they had listed his address beening where he was working I know when you go on that sight you have to agree that you want use that information to harass anyone when he to his 1st court date on July 27 2016 keep in mind I bonded him out on july25,2016 he was released at 9:38pm the judge told him he could not have a court appointed lawyer cause he bonded out and the judge would not let him speak one word on record and told him that if he didn’t sign a paper for pre probation that he would revoke his bond so he sign the paper so he would stay out of jail so he could work when he went to see this pre probation officer she was very rude.he tried to tell her what Meds he was on she her exact words where I dont care they had him pee in a cup and it was half full they pour it out and said it wasnt enough to come back in the morning he did and he pee in a cup a full cup this time than about a week later they had his SOR officer arrest him cause the judge revoke his bond the paper that the pre probation lady sent to the judge said that he admitted to smoking marijuana and that he tested positive for methamphetamie and that he tried to dilute his sample on his next court date Harris county went to fort bend county and pick him up put when the judge called his name I said that they have him down stairs so he had them call down there and they said they had no record of him so than a bench warrant was issue so 3 days later they take him in down to court and the judge sets his bond at $40,000. he is still in jail and all of this time is dead time I haven’t been able to come up with the money to get him out cause I have to pay the $5,000 bond again and the $40,000 bond I have ask for them to reduce his bond as of today they still haven’t and when this all started he was in full compliance they put him on probation and he hadn’t been found guilty of anything and on this pre probation he has to pay a$120. A month and $54.00 for every pee test now this is my point a officer arrested him with no proof and than he was put on pre probation and than it was said that he field a pee test than while he was in their cosdty a bench warrant was issue on him and his bond was set at $40,000 with all that being said I know there is no way he tested positive and she said he admitted to somkeing marijuana so why didn’t marijuana show up in his test been reading up on the law and the 14th amendment said that the federal court can set pre probation no where can I find where it states that a county or city court can and it said that he had the right to due process so guess at sometime the law was change to guilty until Proven innocent so now im homeless cause I can’t get the check from the last job we done cause I didn’t sign the contract he did so the home owner want give it to me and I can’t come up with $4,500 for a bond to get him out they have treated him like he is scum and acts like he has no civil rights and there is nothing we can die and every lawyer I talk to wants $5,000 to take his case that makes the grand total I need to come up with $9,500 and being homeless does not help the matter