Tag: North Carolina

Sex offender consequences in the Supreme Court – what’s ahead?

“The Supreme Court’s Mixed Signals in Packingham” is the title of a thoughtful comment by Bidish Sarma analyzing the Supreme Court’s recent decision in Packingham v. North Carolina, recently published on the American Constitution Society website.  (An early analysis of the Packingham decision by Wayne Logan appeared on this site on June 20.)  Mr. Sarma proposes that “the time has come to ask whether society’s ‘war’ on sex offenders who have already completed criminal sentences has gone too far.” While the Packingham holding is confined to the First Amendment issues raised by North Carolina’s broad restrictions on access to “an astounding range of websites (including news websites, WebMD and Amazon),” Sarma singles out a sentence in Justice Kennedy’s opinion suggesting a broader underlying concern about the constitutionality of sex offender consequences: Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.” One of the “troubling” things about the “severe restrictions” imposed on sex offenders is that “they ensnare far more people than most of us realize.” Even setting aside this serious problem of the legal conflation of child molesters with teenage pranksters—a problem that poses a real public safety concern by undermining the utility of registries—state laws dealing with sex offenders who have already served time curtail liberty to an extreme degree. A subset of these offenders are subjected to civil commitment, meaning the state detains them in prison-like conditions (where they are theoretically treated for mental health problems that make them dangerous). In several states, this involuntary detention is indefinite. These people will die in state custody. Many states and localities also impose severe residency and travel restrictions on released sex offenders, making it so difficult to find living arrangements in some places that affected citizens are forced to live on the streets and under bridges. Research suggests that such laws may actually increase the odds that these individuals will commit crimes again. An amicus brief filed by several highly-respected law professors in a recent case dealing with Michigan’s sex offender laws summarizes how the panoply of restrictions imposed by registration and notification requirements “effectively banishes sex offenders from society.” The state has retroactively placed punitive and highly burdensome restrictions on those convicted of sex offenses, including extensive requirements to appear frequently in person at police departments, as well as restrictions on their movement, residency, and place of work. These restrictions stem automatically from their convictions, with no individualized determinations. These regulations are . . . punitive rather than regulatory in their effect. At the same time, Sarma points out how several Justices evidently remain persuaded by now-discredited statistics showing “abnormally high” sex offender recidivism. Packingham was not an all-around win for those disturbed by how we treat these people. In that case, we can see two indications that the Court continues to propagate the myth at the core of our nation’s moral panic: that individuals convicted of sex offenses are almost certain to commit more sex crimes if they are released. The first flare came during the oral argument. At one point, Justice Sotomayor seemed to accept the basic claim that the sex offender recidivism rate is abnormally high. According to the argument transcript, she said “Yes. There’s a high statistical inference that recidivism will follow with one sexual crime to another . . . .” The second signal appeared in Justice Alito’s concurring opinion. In it, he wrote that “[r]epeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’ McKune, supra, at 33 (plurality opinion) . . . .” If the Court is looking to its own past for its understanding of sex offender recidivism, it is no wonder that the justices continue to embrace the myth that the recidivism rate is alarming. In 2002, in McKune v. Lile, the Court described the risk of sex offender recidivism as “frightening and high.” It went further, citing a Department of Justice publication for the proposition that “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” This astronomical number is certainly frightening. But, it is also blatantly wrong. A number of experts, researchers and journalists have stepped forward in recent months to illuminate the Court’s profound misstep in McKune. In the New York Times in March, Supreme Court reporter Adam Liptak pointed out that the lawyer for North Carolina in Packingham stated during the oral argument that “[t]his court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again.” Liptak explains that “there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.” Professor Ira Mark Ellman and Tara Ellman excavated the truth about the source Justice Kennedy relied upon in McKune: the DOJ publication cited one source for the 80 percent figure, “an article published in 1986 in Psychology Today, a mass market magazine . . . [that used 80% as] a bare assertion: the article contains no supporting reference for it.” In reality, Sarma reports that David Feige recently compiled the real statistics: The recidivism statistics the court cites are dead wrong as a matter of social scientific fact. In reality, sex offenders have among the lowest same-crime recidivism rates of any category of offender. Indeed, in the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent. While the 80 percent number has been shown to be “pure rubbish,” North Carolina (and other states) relied on it to justify its broad internet restrictions.  And, “rather than seize the chance to clear things up, the Court continued down the trodden path.”  At oral argument, Justice Sotomayor appeared to agree with the claim of a “high statistical inference” of recidivism. And, though Justice Alito was careful not to cite directly the debunked 80 percent figure, the concurring opinion relied on McKune to emphasize the notion that sex offenders are uniquely dangerous. (A dispute about Alito’s factual claims arose when the Washington Post ran a fact-check that was subsequently challenged by the National Review. Professor Carissa Byrne Hessick best clears up the confusion when she explains that Alito’s opinion is misleading, but not for the reason the Washington Post identified: “Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate. The problem with this paragraph is . . . the claim ‘[r]epeat sex offenders pose an especially grave risk to children.’ . . . [T]he facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.”) Alito’s opinion is not misleading on the scale of the “frightening and high” farce, but it certainly pours more fuel on the fire that is the myth that sex offenders are bound to commit more offenses, particularly against our children. Even if the Court is not yet ready to question the constitutional legitimacy of legal restrictions imposed on persons who are “subject to the supervision of the criminal justice system,” or who have been found to be dangerous, there is some reason for new optimism that the Court will take a closer look at the constitutionality of such restrictions imposed “on persons who already have served their sentence” when this is “an issue before the Court.”   And, as Sarma helpfully points out, “more cases are coming” in the Court’s next term: The Court recently asked the solicitor general to weigh in on a petition emerging from a Sixth Circuit opinion that actually struck down the Michigan laws mentioned earlier. . . .* And, when the Court comes back to session after the summer recess, it will decide whether to review a case involving the Minnesota Sex Offender Program—a civil commitment scheme that confines over 700 individuals, and at the time of the class-action trial, had never released a single individual in two decades even though the state concedes that many offenders are no longer dangerous (the case materials can be found here). If the Court is genuinely concerned—and it should be—it can soon address the severe restrictions that dominate the legal landscape. Standing up for constitutional rights—even of very unpopular groups—is critical at a time when it looks like our nation could easily begin to tumble down the slippery slope of abridging them.   * The Solicitor General’s brief in Snyder v. Does, filed on July 7, recommended against certiorari, pointing out that the court of appeals had applied the correct legal standard to strike down, on ex post facto grounds, registration requirements that were substantially harsher that those involved in the Court’s 2003 decision approving Alaska’s registration scheme.   Read more

SCOTUS invalidates law criminalizing sex offender access to social media

Departing from its customary reluctance to find fault with laws singling out convicted sex offenders for harsh treatment, after they have completed their sentences, the Supreme Court in Packingham v. North Carolina yesterday struck down a state law making it a felony for registered sex offenders to access commercial social networking websites. The petitioner in Packingham, a registered sex offender, violated the North Carolina law when after learning that a traffic ticket against him had been dismissed in court he posted the following message on his Facebook.com personal profile: 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! Packingham was convicted and thereafter challenged his conviction on First Amendment grounds, arguing that the law violated his right to free speech. After a spirited oral argument in late February, the Court today unanimously concluded that the North Carolina law violated the First Amendment. In an opinion authored by Justice Kennedy, the Court was especially troubled by the breadth of the challenged law, noting that its reach could extend well beyond social media websites, such as Facebook.com, LinkedIn, and Twitter, to encompass websites such as Amazon.com and Webmd.com. The law, the Court reasoned, enacts a prohibition unprecedented in the scope of First Amendment speech it burdens…North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. In reaching its decision, the Court assumed that the challenged law was content neutral and was therefore subject to intermediate constitutional scrutiny, yet found that it was not sufficiently narrowly tailored to serve the significant governmental interest involved. Identification of the stringency of the constitutional test to be applied in litigation is of course of paramount importance, but so is how the governmental interest is characterized. And here is where the significance of Packingham might well lie. Whereas in multiple prior decisions the Court characterized the governmental interest in combatting sexual offending against children as very significant, and invoked dramatic rhetoric of recidivism risk of sex offenders as a whole as “frightening and high” and the like, Justice Kennedy’s opinion for the Court refrained from such language; it simply emphasized the seriousness of preventing sexual offenses directed at children. The absence of such inflammatory rhetoric about recidivism risk perhaps reflects awareness of recent scholarship making clear that inflated empirical assessments of risk, repeatedly invoked as justification by courts and legislatures to justify expansive and often draconian sex offender-related policies, are well off the mark. (Indeed, it is worth noting that Justice Kennedy himself has used such language in the past.) Second, and no less important, is language in Packingham suggesting a possible softening of the Court’s customary unequivocal backing of laws imposing harsh sanctions on convicted sex offenders, which the Court acknowledged as numbering among the array of collateral consequences experienced by individuals.  After noting that the First Amendment would permit a more narrowly tailored law, such as one that prohibited contacting a minor or using a website to gather information about a minor, the Court stated: Specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes can inflict.  (Of importance, the troubling fact that the law imposed severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.) Later, after expressing its concern that the challenged law foreclosed access to social media altogether, the Court stated that [i]t is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. Such sensitivity from a Court that has repeatedly rejected challenges to collateral consequences imposed on sex offenders is noteworthy and perhaps signals change ahead. To be sure, two the foremost government strategies upheld to date, involuntary civil commitment (Kansas v. Hendricks, 1997), and registration and community notification (Smith v. Doe and Connecticut Dept. of Public Safety v. Doe, both 2003), entail different liberty infringements and implicate distinct constitutional provisions from Packingham.  It could be, however, that Packingham is suggestive of a willingness to engage in greater critical scrutiny. Whether this comes to fruition may be clarified soon as the Court has before it a petition for certiorari asking review of the Sixth Circuit’s invalidation of Michigan’s multi-pronged approach, including registration and notification as well as a law prohibiting registrants from living, working or loitering near schools. Also, it must be acknowledged that while Justice Kennedy’s opinion was joined by four colleagues (Justice Gorsuch did not take part), the three-member concurrence authored by Justice Alito (joined by Chief Justice Roberts and Justice Thomas) contains some of the hyperbolic recidivism-related rhetoric found in prior opinions. The concurrence, though, was prompted by what the Justices perceived as “undisciplined dicta” in Justice Kennedy’s opinion, which they worried that would “equate the entirety of the internet with public streets and parks.” Yet, for the Court’s most conservative Justices to endorse an outcome limiting government power to negatively affect the lives of registered sex offenders is itself a significant development, one that perhaps reflects a coming shift in the Court’s heretofore uncritical endorsement of collateral consequences imposed on sex offenders. Read more

Court rules sex offenders cannot be barred from social media

The Supreme Court ruled on June 19, without dissent, that sex offenders cannot constitutionally be barred from social-networking sites.  SCOTUSblog’s Amy Howe introduced the Court’s ‘s holding in Packingham v. North Carolina as follows: In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation, because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech. Justice Kennedy, in an opinion joined in full by Justices Ginsburg, Breyer, Sotomayor and Kagan, stated the “fundamental principle of the First Amendment” that everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”  By barring sex offenders from using social-networking sites, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”   Noting that the issue was not before the Court, Justice Kennedy assumed that the First Amendment may permit a State to enact “specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” However, “specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes inflict.”  But North Carolina’s law goes too far, because it stifles “lawful speech as the means to suppress unlawful speech.” Justice Kennedy also noted the “important” and “troubling” fact that “the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” though this was also not an issue before the Court.  He went so far as to suggest that access to the internet may contribute to rehabilitation: It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. Justice Alito, in a concurring opinion joined by Chief Justice Roberts and Justice Thomas, emphasized the state’s interest in protecting children from abuse:  “it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.”  But he agreed that the North Carolina law under which Packingham was convicted must be deemed unconstitutionally overbroad because it also bars sex offenders from gaining access to “a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child,” “including, but not limited to, Amazon, The Washington Post, and WebMD.” We expect to post additional commentary on the Packingham decision soon. Read more

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. Read more

New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more