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4th Circuit Approves Imprisonment of Sex Offender Convicted of a Nonexistent Crime

William Welsh has been imprisoned for seven years even though he was convicted of a crime that everyone agrees he did not commit. That’s OK, according to a federal appeals court, because Welsh is not really a prisoner; he’s a patient, lawfully committed under a federal statute that allows indefinite detention of “sexually dangerous persons.” Full Article

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  1. AJ

    Wow. If it stands, this is a very, very troubling and scary precedent…not just for RCs in particular, but the citizenry in general. Of course, this is the same Circuit that said Packingham was just fine. Hopefully SCOTUS takes it, reverses, then severely beats the 4th about the head with it. If SCOTUS allows it to stand or affirms, this country is on a very dangerous path. Truly, there would be nothing preventing like treatment of someone who rails against the government, or is a neo-Nazi, etc. Whatever happened to the “imminent threat” aspect of preventive action?

    • Josh james

      I agree. Sounds like locking someone up for thought crimes or crimes that have not been committed is occurring. If he is a danger to society then we need to have an evaluation performed.

      • Dustin

        That’s exactly what it is.

        Just to demonstrate the absurdity, suppose the man dreamed he was the submissive in a BDSM fantasy. Is that an indication of threat? How? A case of someone forcing someone else to abuse them to satisfy masochism sounds highly unlikely, if not impossible.

      • Robert

        Don’t come to Oklahoma, they will lock a person up for thought crimes, it’s called conspiracy to commit a felony. It’s the go to conviction in Oklahoma.

    • Dustin

      AJ,

      I could be wrong, but I don’t think the 4th Circuit or its subordinate district courts ever heard Packingham. Going by the procedural history, it was a direct appeal of the NC Supreme Court.

      • AJ

        @Dustin:
        Yes, my mistake. Thanks for being gentle (“I may be mistaken…”) in the correction! 🙂

    • Lovecraft

      It was the NC state supreme court that ruled against Packingham, which was then appealed straight to SCOTUS. A interesting side note, Justice Bob Edmunds who presided over the NC supreme court at the time and basically berated Packingham did not get reelected in 2016.

      http://www.charlotteobserver.com/news/local/article43528188.html

      The four justices in the majority ruled that the “incidental burden imposed” on convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”

      Writing for the majority, Justice Robert Edmunds stated, “The General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors.

      For example, Edmunds wrote, the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.

      Edmunds wrote that the law is meant to limit conduct and that it only incidentally affects speech.

      “The justification of the statute – protecting minors from registered sex offenders – is unrelated to any speech on a regulated site,” he wrote.

      Emails and text messages aren’t restricted by the law.

      “Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.

      As far as the article goes, I am really shocked and saddened that the 4th circuit did not get this right. In the past they have been pretty fair when evaluating RC related matters. (NC premise statute and there were a couple of svp issues in virginia they addressed. NC will have a lawsuit coming their way really soon attacking the registry as a whole. The suit was fied in feb of last year is still sitting on the judges desk in the central federal district court of nc since June of last year. The state wanted the lawsuit dismissed because it was too complex, but based on the amount of time that has transpired since that request it will most likely be denied we think. Obviously whoever loses will appeal to the 4th circuit, so things could get real interesting especially if for some reason the 4th circuit decides against us. (leading to a difference of opinion across the circuits) I believe that will set up a showdown SCOTUS style.

      • AJ

        @Lovecraft:
        Thanks for the update on NC RC stuff. Is that pending case the one in which Paul Dubbeling is involved, with the data verification and all?
        =====
        Writing for the majority, Justice Robert Edmunds stated, “The General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors.
        —–
        Yup, tailored so well SCOTUS could only come up with an 8-0 decision to swat it down!

        • Lovecraft

          Yes its the one Paul Dubbeling is handling we should hear something very soon on a district federal decision imo.

    • David Kennerly, I Stopped At Harris' Ranch & Was Locked-Up Next To the World's Largest Cattle Feedlot

      This has happened in California, too. Arrested for a non-sexual offense then charges dropped but not released. “Oh well, we’ve got him, we may as well keep him.”

      My reference to the Harris Ranch Steak House is that it is a popular Coalinga restaurant for people hauling ass through no-man’s land. The Harris Feedlot, located nearby, is also near CSH and blankets it with a suffocating and unrelenting stench. Because what more could they possibly do to them? “Hey, I know! We’ll put them next to a feedlot!” (for the rest of their days).

      • Tim Moore

        Industrialized inhumane agriculture meets industrialized dehumanization. Is there anything we do nowadays that is ethical?

  2. Dustin

    I also hope this gets to SCOTUS. My “tiering is useless” argument aside, one major point is that Welsh was designated a predator not because of an assessment of him by a therapist or of anything he may have done since his conviction, but by the SORNA system that designates tiers based solely on crime(s) of conviction.

    • AJ

      @Dustin:
      And given how often the phrase/concept of “lack of individualized assessment” has popped up in court rulings in our favor, it’s my belief offense-based tiering is the Achilles heel of any SOR(N)A that relies upon it. Once again, sorry Government, but easy or quicker is not a valid defense for your system.

  3. R M

    After writing my comments over and over again, the only thing I can truly say is that the courts are just screwed up when it comes to sex offense laws.

  4. mike r @AJ

    This quote from Packingham is extremely relevant…
    The Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow.

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