Supreme Court considers restrictions on sex offender access to internet

This morning the Supreme Court considered whether sex offenders may constitutionally be barred from internet access to social networking sites like Facebook and Twitter.  Lester Packingham, who was required to register as a sex offender after pleading guilty to taking “indecent liberties” with a minor when he was a 21-year-old college student, ran afoul of a North Carolina criminal statute when he praised God on Facebook for the dismissal of his traffic tickets.

At least five Justices expressed some degree of skepticism over broad restrictions on what Justice Elena Kagan called “incredibly important parts” of the country’s political and religious culture, some questioning the premise that the law is necessary to prevent sexual abuse of minors.  Justice Kennedy noted the many ways in which the North Carolina statute seems to violate the First Amendment.  “Let me count the ways,” he said, invoking Elizabeth Barrett Browning.

Some justices noted that criminal convictions can have lasting consequences. “Some states prohibit ex-felons from voting,” Justice Ruth Bader Ginsburg said. “Some states and the federal government prohibit keeping and bearing arms. Those are constitutional rights.”  David T. Goldberg, a lawyer for Mr. Packingham, said those restrictions had a basis in history and logic. They were nothing like “taking away people’s First Amendment rights,” he said.

In this early post from SCOTUSblog, Amy Howe notes high points of the argument, whose full transcript of the argument is posted here.  Adam Liptak predicted at the New York Times that the North Carolina law will be found unconstitutional before the end of the Court’s Term in June.  What this might portend for other restrictions on sex offenders’ constitutional rights – like the exclusionary zones, also imposed by North Carolina, and also held unconstitutional on First Amendment grounds by the Fourth Circuit in December – remains to be seen.

NC sex offender exclusion law held unconstitutional

ncsealcolorLast week the Fourth Circuit held unconstitutional two key provisions of a North Carolina law that made it a felony for sex offenders to be within 300 feet of certain premises that are “intended primarily for the use, care, or supervision of minors” or on premises where minors “gather for regularly scheduled educational, recreational, or social programs.”

The three-judge panel held that the first provision was overbroad under the First Amendment, while the second was unconstitutionally vague.  Interestingly, the state more or less ceded the First Amendment issue by failing to offer any evidence to meet its burden of proof regarding whether the law advanced the state’s interest in protecting minors.  This despite the fact that the district court warned the state in advance that failing to offer such evidence would be fatal to its defense of the provision.

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Manslaughter plea vacated to avoid licensing bar

A former University of Maryland student who pled guilty last April to throwing a punch that resulted in the death of a fellow student, has been allowed the benefit of a nonconviction disposition that will likely result in the expungement of his record. According to a report in the Washington Post,

Prince George’s County Judge Albert W. Northrop ordered the manslaughter conviction of Arasp Biparva in the 2014 killing of Jack Godfrey vacated. The judge also granted Biparva probation before judgment, which means the charges can later be expunged from public records.

The modified sentence will help Biparva, 25, as he finds a job in accounting, according to his attorney.

“Currently the conviction will interfere with the application process and prevent Mr. Biparva from obtaining the certifications he needs to advance his career,” his attorney, Barry Helfand, said in a request for the modified sentence.

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SCOTUS to review two collateral consequences cases

Most of the public interest in the Supreme Court’s cert grants on Friday focused on the transgender bathroom case from Virginia. But the Court also granted cert in two cases involving collateral consequences: one a First Amendment challenge to a North Carolina law barring a registered sex offender from internet access; and the other whether a man convicted in California of having consensual sex with his underage girlfriend committed an “aggravated felony” subjecting him to deportation. Here are the SCOTUSblog descriptions of the two cases:

Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.

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Illinois health care licenses elude those with records

2000px-Seal_of_Illinois.svgThe Illinois legislature has been generally progressive in enacting measures to help people with a criminal record avoid being stigmatized for life.  In 2003, as a state senator, President Obama sponsored one of the earliest of these measures, authorizing courts to grant certificates relieving collateral consequences. In 2011, however, Illinois took several steps backwards when it enacted legislation automatically barring some criminal record holders from ever working in a variety of licensed health care fields.  The law has since become the subject of litigation and further legislation that leaves many would-be medical licensees to face an uncertain future.

What follows is a description of the law’s enactment, subsequent court challenges, and potential legislative fixes.

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Sex offender residency restrictions in the courts: is the tide turning?

The Marshall Project has published an important new article by Maurice Chammah on legal challenges to restrictions on where registered sex offenders can work, live, and visit. See “Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic.”  Chammah writes that activists, finding lawmakers unreceptive to any measure perceived to benefit sex offenders, “have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.”

 Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.

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Sex offender passport law survives challenge

anchor_service_passportA federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel.  The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect.

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When does the Second Amendment protect a convicted person’s right to bear arms?

GUNSEarlier this month eight judges of the Court of Appeals for the Third Circuit blocked enforcement of a federal gun control law in two cases involving Pennsylvanians convicted of non-violent misdemeanors many years ago, invoking the Second Amendment’s right to bear arms.  The appeals court affirmed lower court decisions upholding the constitutional right of Daniel Binderup and Julio Suarez to possess firearms despite the fact that they are barred by federal statute from doing so.  Seven other judges of the appeals court thought the Second Amendment should never be applied on a case-by-case basis to convicted individuals, and proposed that the federal statutory bar should determine the constitutional issue.  The 174-page appellate decision in Binderup v. Holder has been widely reported but only in the most general terms, and not always entirely accurately.

Other as-applied Second Amendment challenges to firearms dispossession statutes are percolating through the courts.  For example, Hamilton v. Palozzi will be argued next month in the Fourth Circuit, offering another opportunity for a court to hold that people convicted of non-violent crimes should not lose their firearms rights, there under a state dispossession statute rather than a federal one.  Because the constitutional issues may shortly be before the Supreme Court for resolution, it seemed worth taking a closer look at the Binderup holding.

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Indiana courts interpret new expungement law

On September 15, 2016, the Indiana Court of Appeals reversed a lower court’s denial of expungement to a woman convicted 13 years before of forgery and drug-dealing, holding that the court abused its discretion in denying relief where the case fully met the statutory standards. The decision provides a window into how one of the Nation’s most expansive new expungement laws is being interpreted and enforced by the courts of the state. Judging by this decision, the approach to restoration of rights in this otherwise-conservative state remains encouraging.

Here is Olivia Covington’s article from the Indiana Lawyer reporting on the decision, with a link to its full text.

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Misdemeanants win challenge to federal firearms law

The Third Circuit has held that the federal bar to gun possession by convicted individuals cannot constitutionally be applied to two misdemeanants convicted years ago who were not sentenced to prison.  In a fractured opinion, the Third Circuit sitting en banc ruled that the two challengers never lost their Second Amendment rights, and that the government offered no persuasive justification for depriving them of the right to bear arms.  Five concurring judges thought the ruling too narrow, and would have limited this collateral consequence to individuals posing a public safety risk.  Seven judges would not allow any “as applied” Second Amendment challenges to the federal bar to gun possession by convicted individuals.

We plan to post analyses of the opinion in coming days.  In the meantime, here is Gene Volokh’s analysis from the Washington Post:

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