Sunday, February 22, 2015

McGuire v. Strange, Case No. 2:11-CV-1027-WKW(WO), (US Dist. Ct, MD AL, Northern Div, 2 Feb. 2015)

A recent decision in US District Court has declared portions of the state's registry law unconstitutional when applied retroactively. Specifically, it declared two requirements of the state registry unconstitutional as applied in the following two situations:

(1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate law-enforcement jurisdictions as provided by § 15-20A-12(b) in conjunction with § 15-20A-4(13) and
(2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions as provided by § 15-20A-15 in conjunction with § 15-20A-4(13).

Unfortunately, the court still regards registration, residency restrictions, employment proximity restrictions, and the imposition of fees "nonpunitive" taken individually; however, the Court's decision leaves open the possibility that given the proper argument and evidence, the Court could indeed determine Alabama's sex offender registry law, taken as a whole, could be declared punitive. It simply was not the case this time.

Here is a brief summary of the recent decision, courtesy of eAdvocate:

If you want to read the entire case, click here:

MICHAEL A. McGUIRE, Plaintiff,
LUTHER STRANGE, in his official capacity, et al., Defendants.

Case No. 2:11-CV-1027-WKW(WO).
United States District Court, M.D. Alabama, Northern Division.

February 5, 2015.

The section of most interest to us is Secion IV (findings of law) subsection f. Whether, in Their Necessary Operation, ASORCNA's Provisions are Excessive with Respect to the Provisions' Nonpunitive Purposes

But ASORCNA does not stop there. Rather, it supplements in-person registration, registration fees, residency and employment restrictions, and community-notification measures with additional provisions creating a scheme that regulates sex offenders far beyond the scheme in any other state. For example, excluding legislation aimed at sexually violent predators, no other state has a scheme whereby sex offenders are retroactively regulated for life through residency, employment, and travel restrictions. In fact, only one other state — Tennessee — employs residency, employment, and out-of-county travel restrictions, and it tempers the effects of these provisions, providing for partial retroactivity and allowing offenders who have successfully complied with the act for ten years to petition for termination of participation in the registration program. T.C.A. § 40-39-207. No other state requires dual registration or dual travel permits for in-town sex offenders, instead allowing registrants to report to any single local law enforcement agency -- whether municipal or county. See, e.g., Colo. Rev. Stat. § 16-22-102(4.5); 739 Ill. Comp. Stat. 150/1 § 2(d); Kan. Stat. Ann. § 22-4902(m). Only five other states -- Arizona, Delaware, Hawaii, Idaho, and South Carolina — join Alabama in applying sex-offender regulations retroactively for the entirety of a registrant's life, but not one of those five states imposes travel restrictions, and only one of the five imposes residency and employment restrictions. See Ariz. Rev. Stat. Ann. § 13-3821 et seq.; Del. Code Ann. § 4120 et seq.; Haw. Rev. Stat. § 846E-1 et seq.; Idaho Code Ann. § 18-8301 et seq.; S.C. Code. Ann. §23-3-400 et seq.

ASORCNA is the nation's most comprehensive sex offender regulatory scheme; it is designed to enhance public safety, prevent recidivism, and to protect vulnerable populations. Such a regulatory scheme, by its nature, will have a greater effect in its sum than when each of the scheme's individual components is examined in isolation, but that in and of itself does not make the scheme's cumulative effects unreasonable. That is not to say, however, that the features that overlay the entire scheme &mdash: no risk assessment, lifetime application, retroactive application for all-time, felony enforcement by the gross, border-to-border (rather than parcel-to-parcel), Ala. Code § 15-20A-11(g), residential and employment restrictions, and the chosen method of printing "SEX OFFENDER" in red lettering on the face of driver's licenses &mdash: are entirely nonpunitive and non-retributive. These provisions are, especially when considered in toto, in excess of every other scheme operating across the country, and such a stark comparison highlights areas where ASORCNA's effects have a very real potential to exceed their nonpunitive benefits. But that is not enough -- Mr. McGuire bears the burden of showing by the clearest proof that ASORCNA's provisions are excessive with respect to the Legislature's stated nonpunitive purposes, and Mr. McGuire has failed to carry that heavy burden, with two important exceptions.

First, Mr. McGuire has shown that the provision requiring double, weekly registration for in-town homeless offenders -- totaling up to 112 registrations in-person a year -- is excessive. No credible reason was given in support of this requirement. The argument that such a provision increases contact with law enforcement begs the question and falls into the State's misplaced view of unlimited effects being constitutional: If weekly double registration is good, then daily double registration would be sevenfold better? Considering the additional burdens of felony enforcement for violations, lifetime residential and employment restrictions, and lifetime travel restrictions (with yet more double-registration requirements), the weekly double-registration feature of the scheme for in-town homeless offenders is clearly excessive in relation to ASORCNA's stated nonpunitive purposes. Requiring a homeless individual to travel to two different law enforcement agencies to complete a substantially identical check-in process every week is so excessive in effect as to be punitive, especially in view of the combined weight of the other features on a homeless offender. And as established in Section C.II.c, infra, this requirement is a direct, affirmative disability or restraint.

Second, Mr. McGuire has shown that the provision requiring the completion of two identical travel permit applications prior to any three-day or more trip outside an in-town registrant's county of residence is excessive. Again, no credible reason was given in support of this duplicative procedure. While the State could again point to increased communication with law enforcement, as was discussed above, this is an instance of highly diminished returns coupled with substantially increased burdens. Additionally, § 15-20A-15(e) already requires the sheriff in the registrant's county of residence (not the municipal jurisdiction) to "immediately notify local law enforcement in the county or the jurisdiction to which the" registrant will be traveling, so it would be logical to conclude that the sheriff could also inform any applicable municipal law enforcement entity of the impending travel once a singular permit is completed. Ala. Code § 15-20A-15(e). When considering the double travel permit requirement in light of the other burdens borne by those subject to ASORCNA and the absence of any increase in benefit to ASORCNA's state nonpunitive purpose, the requirement is excessive to the point of being punitive.

As to all other of ASORCNA's provisions, Mr. McGuire has not shown that the Legislature's chosen regulatory means, individually or cumulatively, are clearly excessive in relation to the statute's nonpunitive purposes, and this factor does not point to a finding that ASORCNA as a whole is so punitive in purpose or effect as to negate the Legislature's stated intent. This finding is entered with serious reservations as to some features (especially the red-lettered branding of the face of required identification), but is consistent with the court's understanding of deference due to the judgment of the Alabama Legislature in regulating sex offenders in Alabama, and the State's discretion in implementing the various provisions of the scheme.

Friday, February 6, 2015

Vann Thomas Motel in Anniston closed, registered citizens forced out

When a stable home for Registered persons closed, why are people surprised that the result is homelessness? Are people really so stupid to believe that residency laws don't negatively impact their precious registry? No home means no monitoring. I'm sure that "building code" crap was a convenient excuse for shutting down the hotel. 

Vann Thomas Motel closed, registered sex offenders forced out
Posted: Thursday, February 5, 2015 6:48 pm | Updated: 8:41 pm, Thu Feb 5, 2015.
by Eddie Burkhalter

The state Fire Marshal's Office has forced the closure of the Vann Thomas Motel in Anniston, according to the owner’s son.
That means the registered sex offenders who had lived there are now scattered across the area, said Calhoun County Sheriff Larry Amerson.
Amerson said as of Thursday afternoon 11 registered sex offenders who had lived at the motel, located at 3002 McClellan Blvd., had reported to the Sheriff's Office that they would have to move. Registered sex offenders are required by law to report when they relocate.
“The issue for us is, they don’t have a place to go, and so we’re going to have a group who are essential homeless at least for a short term,” Amerson said.
Asked what the offenders will be required to do by law after leaving the motel, Amerson said the law allows for them to be homeless, but they must check in each week and report where they are living, whether that be under a bridge or elsewhere, he said.
Bill Wilkens Jr., standing outside his father’s motel Thursday, said an inspector from the state Fire Marshal's Office came to the motel Jan. 29 and informed him the business would have three days to close.
“The building wasn’t up to code,” Wilkens said was the reason the state inspector gave him for the closure. Wilkens said it was an old building, adding, “Of course it’s not going to be up to code.”
Attempts to reach the state Fire Marshal’s Office Thursday were unsuccessful.
Wilkens said 26 people who were staying at the hotel had to leave. Most had done so by Thursday, but one couple loaded garbage bags of belongings into a Ford truck as Wilkens talked to a reporter outside the motel. Most had already left, he said.
A sheriff’s deputy who is responsible for helping keep track of the county’s registered sex offenders came to the motel Thursday to ask Wilkens where the offenders who had lived there had moved, and Wilkens said he told the deputy “I don’t know.”
“The police department used to bring people up here, because they’d know where they are,” Wilkens said. “We’ve got some good managers here and they know who’s who and what they’ve done. They’ll report a problem.”
“This isn’t the Hilton,” Wilkens said. “But it serves a need. Now you’ve got people that are homeless. Have no place to go. One guy told me he was going to be living in his truck."

Tuesday, February 3, 2015

Bills related to sex offenders as of February 3, 2015

At the moment, there are no bills directly affecting sex offenders in the Alabama legislature. There is a bill that is of interest, however, and we can offer support to the bill.

HB 8, sponsored by England, concerns so-called "mugshot" websites that demand fees to remove mugshots from people, which has become a big issue in recent years. Sites like Offendex have targeted Registered Citizens, demanding money for removal of mugshot info from their websites, only to place them up elsewhere. 


This bill would require the operator of a website containing an arrest photograph and personal information of a person charged with a crime to remove, at no charge, the photograph and information within a specified period after notice that the person was acquitted, the charges were dropped, or the charges were otherwise resolved without conviction. This bill would also provide that the failure to remove the photograph and personal information upon request is a deceptive trade practice and that an aggrieved individual is entitled to all rights and remedies under the Deceptive Trade Practices Act.

This may be a good year to push for reforms to sex offender laws, given the legislature is considering overhauls to the sentencing and correctional policies. However, it will be a tough sell in Alabama, as the legislature already introduced a bill to bring back the electric chair (SB 11, sponsored by Ward). 

Stay tuned as new bills are introduced regularly. With Wallace gone, we may not have to deal with anti-cluster bills this year, but you never know.