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.]

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.]

Our Federal Prisons Are Fueled By Drugs

That’s the takeaway from this report by the federal courts and U.S. Sentencing Commission.

To summarize, there are almost 200,000 people in federal prison today, and almost half of them (or 48%) are there for drugs. Almost all of them (93%) are men, and the vast majority are young, minority men. The breakdown is 35% Hispanic, 35% black, and 27% white.

Here are the top five types of cases:

  1. Drugs (48%)
  2. Guns (19%)
  3. Immigration (8%)
  4. Child pornography and sex offenses (7%)
  5. Major frauds (5.8%)

For fraud cases, the median dollar loss was $800,000, in case you were wondering.

For the drug cases, here’s the breakdown among drugs:

  1. Methamphetamine (32.8%)
  2. Powder cocaine (24.2%)
  3. Crack cocaine (20.9%)
  4. Heroin (9.5%)
  5. Marijuana (8.4%)

Finally, the report shows how often people are sentenced below, above, or within the range that’s recommended by the federal sentencing guidelines. Here’s a crash course on the guidelines if you want to know how they work.

  • Half were sentenced within the guideline range (50.4%)
  • A quarter were sentenced below the range with the government’s support (24.7%)
  • One-fifth were sentenced below the range without the government’s support (21%)
  • Relatively few were sentenced above the guideline range (3.9%)

New California Criminal Laws in 2017

Let’s get right to it.

We already covered three of them in prior posts. One was Proposition 64, which legalized recreational marijuana. Another was Proposition 57, which expanded parole eligibility for nonviolent felons and cut back on prosecuting kids as adults. A third was Assembly Bill 1909, which made it a felony for prosecutors to commit Brady violations in bad faith.

Here are five more.

Ransomware is a form of extortion. This is Senate Bill 1137. It amended the Penal Code to punish anyone who introduces ransomware into a computer system or network. It doesn’t matter whether you actually got the ransom or not; it’s a felony punishable by two, three, or four years in the county jail. See Pen. Code § 523.

New business search warrants, less drama. This is Senate Bill 1087. It amended the Evidence Code to make it easier for innocent businesses to comply with search warrants for their records. Now, if a business is not a subject of the underlying investigation, it may be able to produce its records by mail or in some other arms-length way. That’s a lot better than having agents show up to go through your stuff. See Evid. Code § 1560(f).

New motion to vacate a conviction or sentence based on immigration consequences or fresh evidence of innocence. This is Assembly Bill 813. It allows you to ask a court to throw out your case in two situations even though you’ve served out your sentence. The first is if you pleaded guilty because of a legal mistake that undermined your ability to understand the immigration consequences of your plea. The second is if you can present fresh evidence that you were innocent. See Pen. Code § 1473.7.

No more possibility of probation for sex offenses where the victim was unconscious or too intoxicated to consent. This is Assembly Bill 2888. It eliminated probation as a possible sentence for rape, sodomy, oral copulation, or sexual penetration with a foreign object if the victim was unconscious or too intoxicated to consent. It extended a rule that already applied to other, serious sex offenses. See Pen. Code § 1203.065.

No more statute of limitations for felony sex and child-molestation cases. This is Senate Bill 813. It eliminated the statute of limitations for a litany of sex crimes, which now may be prosecuted at any time. Previously, they had to be prosecuted within ten years, or if the alleged victim was under 18, before he or she turned 40. See Pen. Code § 799.

Lies, Damned Lies, and Sex Crimes

If you thought the case from last week was bad, here’s another one that’s worse.

This time, the supposed victim hasn’t stepped forward to admit she lied, so the man she accused of child molestation sits in prison, as he has for seventeen years, and the system seems powerless to stop it.

What happened? The jury never saw medical records in which the girl’s mom told a hospital therapist that her troubled daughter was a “pathological liar and she lives her lies.” The jury never heard about this and other details at trial because the prosecutor didn’t turn over the records. He told the judge there wasn’t anything in there to worry about.

How did it happen? The man was divorced and estranged from the mom, but he’d been in the girl’s life for ten years before that. The girl first reported the abuse three years after the divorce but only after her mom found out that she was dating a 27-year-old heroin-dealing parolee, and they got into a big fight about it. The mom reported the parolee and got him locked up. The girl flew into a rage and attempted suicide several times. It was in that context that she accused him.

But the girl’s story changed throughout the case. Initially, she said that he had touched her inappropriately but denied oral sex or intercourse of any kind. Then she claimed that he had raped her. By the time of trial, her testimony was that her stepfather had routinely raped her for years. Then, after he was convicted, she submitted a victim-impact statement in which she claimed, for the first time, that he had even shared her sexually with others.

The judge was not impressed. She had presided over the trial, and she thought the girl was lying. She asked to see her medical records, but the prosecutor refused. She threatened to throw out his conviction unless she saw the records, and he gave in.

The judge took one look at the girl’s medical records and immediately ordered a new trial. Here’s her written order. You should read it for yourself.

But the prosecutor’s office appealed the judge’s order. They got the conviction reinstated and the case reassigned to another judge, who sentenced the man to seventy years.

The man remains in prison today, serving out a death sentence. His case has cut a tortured path through state and federal appeals.

Someone should intercede.

Cyber Search Warrants Are Going to the Dogs

It’s true, and reportedly, even the recent search of Jared Fogle’s home involved a Labrador who found a thumb drive of potential evidence.

The dog is one of a handful or two nationwide that’s trained to sniff out electronics and their component parts based on a chemical that’s common to all of them. Law enforcement won’t identify the chemical, but after a few months of training, the dogs learn to detect its odor. They can then be used to search for anything from laptops, tablets, and hard drives to thumb drives, circuit boards, and tiny memory cards.

It’s a relatively new advent but one that’s catching on quickly.

Still, we should remain wary of the potential for abuse. A lot depends on how well these dogs are trained and how scrupulously they are used by their handlers, among other things.

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