California’s New Sex-Offender Registry

Big news out of California last week.

Beginning in 2021, the state will replace its current sex-offender registry, which requires everyone to register for life, with a three-tiered system that distinguishes among low-risk, medium-risk, and high-risk offenders.

People in the first tier will be able to petition to end their registration after ten years. You’re in this tier if you were convicted of a misdemeanor or a non-violent, non-serious felony.

Those in the second tier will be able to petition after twenty years. This applies if you were convicted of a serious or violent offense but do not pose a high risk of reoffending.

Those in the third tier will continue to have to register for life. This applies to high-risk offenders, repeat offenders, and sexually-violent offenders.

For juveniles, there are two tiers. Those in the first tier can petition for removal after five years. Those in the second tier can do so after ten years.

In all cases, the district attorney can oppose your petition, and the court can deny it. If it’s denied, you can petition again, but you’ll have to wait at least one year and as many as five.

Almost everyone supported the new law, including law enforcement, which argued the current registry was so large that cops couldn’t focus effectively on the high-risk offenders.

For local and national press coverage, see here, here, and here.

For the text of the new law, see here.

Two Sides of the Same Coin

It’s not always easy to weigh the scales of justice.

Sometimes, like in the two stories from last week, the system treats people too harshly, and it ruins their lives.

Other times, though, someone’s unfairly blamed for not being harsh enough.

That’s the premise of this piece by a former chief criminal judge who was vilified for setting someone free without bail who then committed another crime.

But he made the best decision he could at the time. The guy was charged with failing to register as a sex offender. It’s a fairly common charge, and the guy was there for arraignment along with some thirty people.

It was a typical busy day in court, and the judge had to make a bunch of good decisions quickly. The prosecutor’s office called for a high bail amount that could have kept the guy in jail pending trial. But they always did that in these types of cases.

Under the law, the guy was presumed innocent in this case, and he was supposed to be released unless he was a flight risk or danger to the community. He didn’t seem to be a flight risk because he’d come to court on his own after being summonsed by mail. And he didn’t seem like a danger to the community, either. He wasn’t charged with a violent crime, and though he’d been convicted of forcible rape in 1993, that was over twenty years ago.

The judge heard from both sides and then followed the law, releasing him.

A week later, the guy was arrested on suspicion of rape and kidnapping. He ended up pleading guilty to lesser charges in that case in exchange for a seven-year sentence. But in the meantime, some hell broke loose.

The judge was called incompetent; he was called pro-rape; he was attacked on local talk radio and even the national news.

Here is how he dealt with it.

 

Two Tears

Two true stories, that is, of people on a sex-offender registry.

The first. Today, she’s a 34-year-old mother of two great kids. Back then, she was a teenager herself when she slept with a boy on the night of her 19th birthday party. The boy was mature enough to pursue her but, as it happened, he was 14. His mom reported her to the police the next day, and they called her in to talk. They told her if she were honest, she wouldn’t go to jail, but it’s funny how that works, because after they filed the case, she was told that she could serve 20 to 25 years if she went to trial and lost. Or she could plead guilty and serve minimal time, but she would have to register as a sex offender.

Today, she’s a good person and a mother of two great kids, but her conviction looks like child molestation on paper, and she must register as a sex offender for life. Recently, she worked to become a staff writer for a local newspaper, but then someone complained about it, and the paper let her go. No one bothered with the details. You should watch her video.

The second. He was a junior in college when he went to Miami for spring break. He met a girl there at an 18-and-over club, and they ended up hooking up. Seven months later, he got a call from law enforcement in Florida. As it happened, the girl had used a fake ID to get into the club. She was actually 15 at the time, and her mom filed a complaint when she found out. So they asked the young man to come to Miami to talk, and he agreed. He told them everything was consensual, and he assumed she was 18 or older since she was in the club. They took his statement, thanked him for his cooperation, and arrested him on the spot.

Five years later, he was homeless because he couldn’t find a job or housing given his lifetime sex-offender registration. Two years ago, almost ten years after his conviction, he failed to register his whereabouts and received three years in prison. You should read his story, too.

 

Certificates of Rehabilitation in California

A certificate of rehabilitation is a court order that declares your rehabilitation to the world. It also automatically recommends you to the governor for a pardon. If you’re not eligible for an expungement, you can still clean up your record through a certificate of rehabilitation. Or you may want to apply for one even though you’ve already expunged your conviction.

Like an expungement, a certificate of rehabilitation will bring better job prospects and a better chance at getting a professional license. Unlike an expungement, it won’t allow you to say that you have no conviction.

But also, unlike an expungement, a certificate of rehabilitation can relieve you from having to register as a sex offender. The court will deny it, however, if it finds you’re a continuing threat to minors. Or the district attorney’s office can petition to rescind it on that ground.

[Update: Beginning July 1, 2021, a certificate of rehabilitation will no longer end sex-offender registration because of a new law and process for doing so.]

To qualify, you must show that you live “an honest and upright life” and have demonstrated rehabilitation for a number of years after you were released from custody or put on probation or parole. You can’t still be under supervision, and the number of years depends on the nature of your conviction. In a nutshell, it’s nine years if you were convicted of a serious violent crime; ten years if you were convicted of most sex offenses that require sex-offender registration; and seven years for anything else. You also must prove that you’ve lived in California for at least five years before you filed your petition.

Who’s ineligible? Well, you’re not eligible if you don’t meet the above criteria. But you’re also ineligible if you were convicted of a serious sex offense involving a minor. If that’s the case, you can still ask the governor directly for a pardon, but you’ll need to show extraordinary circumstances to get it. Finally, you’re not eligible for a certificate of rehabilitation if you were convicted of a misdemeanor, unless it was a sex offense that required registration.

How do you do it? You can find more information from the governor’s office here, and you can pull the appropriate forms from your local courthouse, public defender, or probation department. The court may even appoint counsel to represent you. Or, if you can afford it, retain counsel to make the best case for you.

Getting Removed From the Megan’s Law Website in California

Last week, we wrote about certificates of rehabilitation, which relieve you from having to register as a sex offender.

As you may know, California publishes information from its sex-offender registry on a public website. The information includes your name, gender, date of birth, ethnicity, photograph, physical description, and relevant conviction. It also includes your home address or your county and zip code depending on the conviction. For violent or otherwise serious offenses, including those against children, it gives your home address. For somewhat less serious offenses, it gives your county and zip code, but if you have priors, that can change.

In a few cases, even if you can’t end or avoid registration, you can remove yourself from the public website. To do it, you have to apply directly to the California Department of Justice, and you can find the application form here.

To qualify, the state must regard you as a low risk for reoffending, and your only registry-related convictions must be for the following:

  1. felony sexual battery by restraint under Penal Code section 243.4(a);
  2. misdemeanor annoying or molesting a child under Penal Code section 647.6;
  3. some felony child-pornography offenses if all minors were 16 years of age or older; or
  4. an offense for which you’re on probation or have successfully completed probation, where you’re the victim’s parent, sibling, stepparent, or grandparent, and it didn’t involve oral copulation or sexual penetration.

If you qualify, the government must grant your exclusion. By the way, don’t go searching the Megan’s Law website yourself; it’s a misdemeanor.

[Update: Beginning January 1, 2022, these rules will change because of a new law and system for sex-offender registration. The changes will affect qualifying convictions under 1, 2, and 3, above. If you no longer qualify at that point, the state will rescind your exclusion.]

Sealing Juvenile Records in California

In the case we wrote about last week, a California court held that it wasn’t cruel and unusual punishment to require a minor to register as a sex offender for life.

The court noted, however, that a kid could be relieved of this requirement if he got his juvenile records sealed.

So how do you get your juvenile records sealed? Here are the basics in California.

If you are put on some form of probation or supervision, and you complete it satisfactorily, your records should be sealed automatically. That’s new under a law that went into effect in 2015. You can find more information about it here.

Otherwise, you have to petition the court to seal your records. To do that, you must be at least 18 years old or it must be at least five years since the end of your juvenile case. You can’t have a civil lawsuit pending against you because of the case, and you can’t have any adult criminal convictions except for certain misdemeanors. You must apply through the court’s probation department, and you can check this website to see whom to contact in your county. The court may hold a hearing, and it will grant your petition if it finds that you’ve been rehabilitated. That can happen even if you still owe fines, fees, or restitution. If the court denies your petition, you can try again later.

Generally, you’re not eligible at all if you committed an especially serious or violent offense when you were at least 14 years old. You can read more about that here and here.

But you may have a shot if you can persuade the court to dismiss your case based on a special motion that looks at your rehabilitation, your well-being, and the interests of justice. You may bring this motion no matter how long it’s been since your juvenile case ended, so talk to your lawyer. If you win the dismissal then you can petition to seal your records.

Once the court seals your records, your case no longer exists as a public record, and the proceedings are deemed never to have occurred. That means you can legally and truthfully say that you don’t have a juvenile record. Generally, the underlying records aren’t destroyed until you turn 38 years old, and they won’t ever be destroyed in the serious or violent cases. But they may be looked at only in limited situations, such as if you apply to work in the military, law enforcement, or the federal government.

 

Lifetime Sex-Offender Registration for Kids

Do you think sex-offender registration is punishment?

What if it’s for life?

What if it’s for a 12-year-old boy?

Last week, the California Court of Appeal ruled that it’s not punishment to call a kid a sex offender for life because of something he did when he was twelve years old.

According to the court, the boy’s early years were marked by extreme neglect and abuse. He was taken from his mother at age five and shunted from one foster home to another until he was adopted.

Then, when he was twelve, he was processed in juvenile court for pushing a five-year-old boy to the ground and committing a lewd act on him. He was put on probation and ordered to enroll in sex-offender treatment.

After that, he was found to have violated his probation three times: once for hanging out with other minors without adult supervision; once for touching his adoptive sister’s breast, after which he was sent to a group home; and once more for grabbing a boy’s butt there.

At that point, the court put him in juvie and ordered him to register as a sex offender. In California, that meant he would have to register as one for the rest of his life. Wherever he moved, he would have to register with the city police or the county sheriff. If he went to college, he would have to register there, too. Even if he never moved, he would have to register again every year within five days of his birthday.

He appealed on the ground that lifetime registration for kids was cruel and unusual punishment. He also argued that it hindered public safety rather than helped it because it hurt a kid’s chance to live a normal life. Even the juvenile court had acknowledged that it “mess[ed] up the rest of their lives by hanging this tag on them.” Of course, the same could be said for adults, as we’ve explained before.

But the appellate court held that it wasn’t even punishment, let alone cruel and unusual punishment. The court relied on prior cases by the California Supreme Court and the U.S. Supreme Court to that effect. Although those cases didn’t address the question of kids specifically, this court wasn’t going to be the first to carve out an exception for them.

[Update: Beginning January 1, 2021, California will eliminate lifetime registration for many offenses, as we explain here.]

The Restoration of Rights Project

Have you ever been arrested? Do you have a prior conviction?

Do you wonder whether you can clean up your record and how that affects you, if at all?

Start here. It’s called the Restoration of Rights Project, and it looks at the law in every state for restoring your rights and status after an arrest or conviction. It covers federal law, too.

For each state, the Project compiles answers to these questions:

  1. Whether and how you can seal, expunge, or dismiss your arrest or conviction.
  2. Whether and how you can restore your civil rights, like the right to vote.
  3. Whether and how your state’s laws affect your chance of landing a job or license, losing one, or getting it back.
  4. Whether your state has a regular process to apply for a pardon and how often it grants one.
  5. Whether and how you can stop having to register as a sex offender.

It’s a great resource not just for lawyers and the courts but for, in its words, “the millions of Americans with a criminal record who are seeking to put their past behind them.”

The Modern Public Square

This week brought us another unanimous U.S. Supreme Court case that’s arguably more important because it concerned the First Amendment.

The issue was a North Carolina law that made it a felony for registered sex offenders to use any social-networking site that lets minors join. So to be clear, that’s any social-media site, period, that lets minors join. That meant Facebook, LinkedIn, Twitter, or pretty much any other social-media site. The law was even broad enough to include websites like Amazon, WebMD, and the Washington Post. So you almost couldn’t use the Internet.

The defendant was one of more than 1,000 people who’ve been prosecuted under the law. In 2002, when he was 21 years old, he had sex with a 13-year-old girl, and he was charged with it. He pleaded guilty to it and registered as a sex offender. Then the law passed in 2008.

In 2010, he happened to get a traffic ticket dismissed in court, whereupon he logged on to Facebook and posted this to his timeline: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent … Praise be to GOD, WOW! Thanks JESUS!”

He was indicted for that.

He moved to dismiss on the ground that the law violated the First Amendment, but the trial court denied it. He was convicted at trial and given a suspended prison sentence.

On appeal, the state courts duked it out. The court of appeals agreed with the guy, finding that the law violated the First Amendment. But the state supreme court reversed, finding the law “constitutional in all respects.”

Finally, the federal high court unanimously struck down the law because it plainly applied to websites like Facebook, LinkedIn, and Twitter among others. Facebook itself had 1.79 billion active users—or three times the population of North America.

The Court called these sites “integral to the fabric of our modern society and culture.” They had become our main sources for sharing current events, participating in the public square, and exploring human thought and knowledge. To foreclose access to them was to foreclose the legitimate exercise of First-Amendment rights.

Yes, a state could pass specific, narrowly-tailored laws that regulate the type of conduct that portends crime, like contacting a minor or using a website to gather information about one.

But it couldn’t just cut people off from the public square.

Child-Pornography Possession in State and Federal Court

Among the common offenses for which people must register as sex offenders is possession of child pornography.

Under California law, possession of child pornography is a felony, though it may be punished by imprisonment either in the county jail for up to one year or in state prison for 16 months, two years, or three years. Pen. Code § 311.11(a). If you possess more than 600 images and at least ten of them depict a prepubescent minor or one under the age of twelve, then you’re facing a possible top term of five years instead of three. Id. § 311.11(c)(1). The same rule applies if you possess any images that portray sadomasochistic activity. Id. § 311.11(c)(2). To count the number of images, each still photo or depiction counts as one image, and each motion picture or video counts as fifty. Id. § 311.11(f). If you have prior convictions for child pornography or any other offense that requires sex-offense registration, then you’re looking at state prison for two, four, or six years. Id. § 311.11(b).

A lot can turn, however, on how a prosecutor charges the case, and several related, alternative offenses may be charged as felonies or misdemeanors. See generally id. §§ 311-312.7 (cataloging the criminal obscenity laws).

Under federal law, possession of child pornography is a felony punishable by imprisonment for up to ten years in all cases or twenty years if any image depicts a prepubescent minor or one under the age of twelve. 18 U.S.C. § 2252A(a)(5), (b)(2). If you have prior convictions for child pornography or another offense that requires sex-offense registration, then you’re looking at a maximum sentence of twenty years and a mandatory minimum of ten. Id.

Alternatively, if the prosecutor charges you with receiving child pornography rather than possessing it, you face a mandatory-minimum sentence of five years and a maximum sentence of twenty. See id. § 2252A(a)(2), (b)(1). Tack on a prior conviction and you’re looking at a minimum of fifteen years and a maximum of forty. Id. If you’re not clear on the distinction between receiving and possessing or why the former triggers a mandatory-minimum sentence while the latter doesn’t, you’re not alone. No one understands it, but it helps prosecutors obtain guilty pleas by offering to dismiss the receipt charge if you plead guilty to the possession or by threatening to add the receipt charge if you don’t.

In federal court, your actual sentence will depend on how the court applies the federal sentencing guidelines. See generally U.S.S.G. § 2G2.2 (setting forth the guideline for child-pornography possession). As in state court, there are enhancements based on the number of images, the age of the minors, and any sadomasochistic imagery (among others). In federal court, each still photograph or depiction counts as one image, and each motion picture or video counts as 75 images. Generally, in better-case scenarios, you’re looking at a guideline range of around two years. In worse-case scenarios, even for simple possession, you could well be facing eight to ten years in prison or more.

Many well-meaning people believe these punishments are excessive, and among the most criticized is a federal provision that adds two aggravating points to your guideline calculation if you used a computer to commit the offense. Id. § 2G2.2(b)(6). In reality, everyone receives this enhancement because, nowadays, child pornography (and all pornography) is possessed virtually exclusively through the use of computers. Simply, it makes no sense to consider them as an aggravating factor at sentencing.

For these reasons, in federal court, child-pornography possession generates more below-guideline sentences than any other category. In fact, in a 2010 survey of federal judges by the U.S. Sentencing Commission, over 70% of respondents—representing nearly 70% of all active, sentencing judges—believed the guidelines for possession and the mandatory minimum for receipt were too high.  Just two percent thought they were too low.

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