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PA courts put Megan’s Law in limbo

[altoonamirror.com]

HOLLIDAYSBURG — Following the sentencing of an area man last month for indecent assault, Blair County District Attorney Richard A. Consiglio informed the judge that the next step in the process — a hearing to determine if the defendant was required to register as a sex offender — had to be delayed because of recent opinions by the Pennsylvania Supreme and Superior courts.

Under those opinions, questions arose as to the constitutionality of the state law requiring sexual offenders to register with state police and to periodically update their registration.

The constitutional challenges focused on individuals convicted of sexual offenses before Dec. 20, 2012, when the most recent Sexual Offender Registration and Notification Act, known as SORNA, took effect.

Also challenged was the information made available to the public about defendants that included private facts beyond the charges for which they were convicted and their addresses.

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  1. Cool CA RC

    Just shut the Megan’s Law down and everything will be fine.

  2. mike r

    Love it….

  3. Dustin

    I really wish I could reply on the comments section of this article. But unfortunately, I can only do so with a Facebook account which I’m not allowed and don’t have (I abandoned the one I had pre-conviction long ago). The conspiracy theorist in me can’t help but wonder if that was an original secret intent to prevent registrants from larger forums to voice opposition or just a delightful, un-thought-of effect.

    Everyone please, if and when you can, make our points on these sites for general public consumption.

    My point of contention here regards ex post facto and retroactive law. It has long been precedent (at least here in Georgia) that the law in effect at the time of offense is the law to be applied at all stages of prosecution – to include sentencing, parole, and probation – and when new laws are made retroactive, the more lenient of the two applies. Sadly, I’ve never seen the argument made in applicable cases and for the life of me can’t figure out why.

    My second point would be to challenge the pro-registry, anti SO crowd to apply the same reasoning to other offenses. By their logic, convicted burglars would never be allowed near buildings. Convicted robbers (armed or not) would never be allowed where money or items of value are present. Convicted arsonists would would never be allowed where flammable materials are present. Shoplifters would be precluded from all retail establishments. Those with parking or speeding tickets (paid or not) would never be allowed to own or operate a motor vehicle and must forfeit those already owned or otherwise have access to. Jaywalkers would never be allowed near streets. The list is unending and the associated restrictions to prevent re-offending get more and more absurd.

    As stated by others, gang members, drug dealers, and impaired drivers have documented far higher re-offense rates than sex offenders. Yet they aren’t registered, have their post-sentence lives so thoroughly scrutinized, and have been proven to be a great threat to the public. Why not? If the SOR is so effective, why not apply it to all crime?

    Theoretically, if all crime was registered and those convicted were restricted according to the same reasoning and manner as SOs, the numbers of the law-abiding would dwindle to nearly none. How safe would the tough-on-crime crowd feel then?

    • It doesn’t work

      I have been saying for years that me NOT BEING ABLE TO COMMENT on any web news article that I want is a disgusting constitutional violation. Some on this site have posted replies that I have other options or places to comment. Oh, so everything is kosher then?

      • David Kennerly, A Jumped-Up Pantry Boy Who Never Knew His Place

        It’s “trayf” by any kosher standard but, it is not unconstitutional. Unconstitutional is when the government interferes with our speech rights.

    • mike r

      Excellent observation on the ex post facto issue. I need to see what scotus or ca case law states about that the lesser of the two laws have to apply. It seems a little crazy since it would pretty much void all retroactive legislation. That could be a very important argument though if it holds true.

      • AJ

        Is it perhaps the Rule of Lenity (https://definitions.uslegal.com/r/rule-of-lenity/)? It doesn’t necessarily apply as mentioned, but it does apply where laws are ambiguous.

      • Dustin

        Had it printed out and buried in all my legal junk somewhere – may take a while to find. It was a probation revocation case out of the Georgia Court of Appeals, I think, and I don’t remember the name or year. Nor do I remember what, if any, other holdings were cited in it.

        Justia (where I research most law) stopped posting GA CoA opinions in 2012; couldn’t find it there. Will dig some more and get it to you as soon as I can.

        • AJ

          @Dustin:
          Try http://www.casetext.com. It’s free to sign up, and has pretty much every case out there–though the amount of active side content can sometimes get a little annoying.

  4. Brian

    I was just wandering, is it that your on probation or parole that your not allowed to have a Facebook, it doesn’t state that that see anywhere in my requirements that I’m not allowed to use Facebook, I just don’t for the fact enough people know me, I’ve never been a fan of social media sense before I was required to register but that just me though. That is some good news for sure, wander how 1952 will pan out or will it, hopefully they throw it off the table because it’s considered ex post factory, a direct violation of the pa and federal constitution.

    • AJ

      @Brian:
      You’re allowed (see: Packingham v. NC), but what happens is the US Gov’t snitches on you to FB, and FB drops you like a hot rock. I know I’ve read it a few times in the Federal Law (but cannot find it right this second) about the procedure where social networking operators can ping the registry, and if it gets a hit, the AG will provide enough personal info that the site can figure out if it’s you or not. Then, they drop you.

      (Can someone by chance cite the portion of AWA that talks about this?)

      • AJ

        Found it: 34 USC 20917: Checking system for social networking sites (https://www.law.cornell.edu/uscode/text/34/20917).

        • Brian

          AJ
          34 USC 20917: Checking system for social networking sites
          What exactly is this used for, banning registrants from social media?

        • AJ

          Yes. It’s how FB, et al, verify you’re a RC.

          IMO, it’s also unconstitutional, as the Gov’t is silencing my speech. If FB doesn’t want to listen to me, that’s one thing. For the Gov’t to say, “yeah, you don’t wanna listen to that guy” is something else. It’s a blacklist, pure and simple, preventing my engaging in what SCOTUS has called “the modern public square” (Packingham). I think it would be an easy win if someone sued the USG over it. After all SCOTUS has ruled that anonymous, online speech is protected by the 1st. Add in that it’s now the public square, and I see this Section as toast.

        • mike r

          This is interesting AJ. This sure seems to contradict Packingham…And what about this little snippet….
          “(5) Limitation on liability
          (A) In general
          A civil claim against a social networking website, including any director, officer, employee, parent, contractor, or agent of that social networking website, arising from the use by such website of the National Sex Offender Registry, may not be brought in any Federal or State court.” This goes beyond the authority of the legislature and is doing exactly what I warned against. They are trying to dictate when and in what circumstances we the people can petition the court for redress…Absolutely unconstitutional……….

          But just before that they claim that it can’t be used if it violates any laws. Um excuse me but I believe there is a law stating that no one can use the information to discriminate against an individual based on the info provided on Megan’s Law website…..And then we have Packingham…..What’s up AJ? I think we might have to get this in my suit as well.I know they will try and say that it’s a private website but didn’t Packingham state explicitly that these sites are the modern day public square??????????

        • mike r

          I think this might be a great opportunity to insert the right to redress in the court and that the Legislature is overstepping it’s authority in enacting legislation that bar individuals from access to the courts. They cannot do that!!!!!!!!!!If that was the case then no one could ever access the courts if the legislative branch simply stated in statute “A civil claim may not be brought in any Federal or State court.” Does that sound legal or constitutional??????

        • mike r

          Think I will save this for my response to the US AG”s response….Be a more appropriate time then the state….

        • Dustin

          Bad idea. Appellate courts won’t review issues not brought before the lower courts, including federal appeals of state rulings. If you want to address it federally, you have to address it in the state court.

        • AJ

          They are, in effect, giving another “person” (FB, etc.) immunity from any suit I may wish to file against them. It’s no different than if they gave AJ immunity so none of you can sue me. How that’s legal, I’d like to know. Given this all came out of the KIDS Act of 2008 (KIDS = Keeping the Internet Devoid of Sexual predators…cute, eh?), it’s no surprise it’s written as harshly as it is. Devoid. Really?? I hate to break it to the idgits in Congress, but SCOTUS says you can’t have a blanket law that does this. Narrowly tailor it all you want, but willy nilly giving info to other “persons” so they can silence me and prevent me from partaking in the “modern day public square”? Umm, no.

    • Dustin

      Yes, I’m on probation. I’m specifically not allowed to be on Facebook, Twitter, Snapchat, Pinterest, and Instagram. Decided to wait to see how Packingham plays out here, if at all. Doubt my PO is aware of it – he’s not the most intelligent or well read person I’ve ever met. But I am fortunate that he doesn’t bother me very much. It’s a mix of him knowing I don’t bother anyone, that I have a better idea of the lengths and limits of his authority than he does, and I won’t hesitate to stand up for myself. I’ve challenged him a couple of times when he tried to overstep and he’s always backed off.

    • Dustin

      Brian,

      Yes, social media is a parole or probation condition (probation, in my case). Packingham applies to those whose sentences are completed and not on supervision. Some states may have applied it to their supervised RSOs, or might never have imposed the restriction in the first place. Georgia, as far as I know, is not one of them. At least not the county I’m in.

      I’m willing to spend a few weeks in jail if need be to make a point, but having a Facebook account is not important enough to me at this point to be willing to fall on that sword.

  5. Eric

    This is outstanding, the registry is crumbling. The DA said that many of the children have been brutalized. Well that might be the problem. Instead of focusing on the small percentage of people who did actual violent crimes, they have mixed the other 900,000 SO’s in there and treat them the same, now you have a big mess, a punitive system, a system that punishes indiscriminately, and a morass of constitutional violations. Each case should be dealt with individually as is stated in the Constitution. That is what probation, supervised release, and parole are for, to watch the person closely for a period to see how they function in society. The registry makes the public the supervisor, and with it are all the whims and particulars of that individual as we saw in Alaska, the man violently beat three men he found on the registry, and he himself is an ex-con for drug dealing, so this shows you the idiocy of the registry. Good bye registry. Hello sanity.

  6. AJ

    Man, I can’t count how many articles I’ve read about the surge in offenses since Muniz. Oh wait, yes I do: zero. Just as with the “lost” RCs in MA, absolutely nothing has happened with the loss of this important and needed law. Proof’s in the pudding, prosecutors!

    • Ron

      Just curious, one day will we be able to sue the various levels of government involved in violating our rights? I would love to see some homeless sex offender move into the same neighborhood as his congressional representative.

      • Paul 2

        They have immunity for good faith actions so you’d have to show they knew what they were doing was illegal.

        • Dustin

          Paul 2,

          Good point. Good faith immunity is notoriously difficult to overcome. Lauren Book down in Florida is a shining example of elected officials not acting in good faith. Would like to see her officially investigated, but odds are nothing would come of it (due in no small part to her entrenched lobbyist father, I’m sure [/sarcasm]) since all she has to do is scream “PROTECT THE CHILDREN”.

    • Paul 2

      You will see PSP trying to get people on lying to a law enforcement official because they can’t convict on non compliance.

  7. NYS Level 1 (10yrs....ooops...make that 20)

    Just tried to comment but looks like moderator didn’t approve.

    All I meant to say was that Angel Watch letters need to be stopped as a practice as well….not just the passport moniker….. especially when we make due notification of our travel plans.

  8. Who Removes from list

    My husband had his failure to register case dismissed because he wasnt required to register under SORNA. He is in compliance but does have a lower court hearing in Feb 2018 for a removal of SORNA by a judge

  9. Brian

    Dustin
    Seams like only people on probation are the only ones not allowed to do social media in pa, I don’t know about other states or other teirs though, sucks if you enjoy doing social media which 90% of people do.6 days till SCOTUS conference and God I hope we get good news on Monday 22nd.

    • Dustin

      Brian,

      A lot also depends on what’s considered social media. As Packingham pointed out, that could apply to virtually the entire Internet and cell phones, depending on how you interpret the criteria in the North Carolina statute that was stricken down. My PO only has a problem with Facebook, Snapchat, Twitter, and Pinterest, last I knew.

      A reasonable judge would likely follow Packingham on his probationers, at least where computer use wasn’t a factor in the original offense. The problem is that reasonable judges in sex offense cases are few and far between and probationers are stuck with their sentencing judge. Mine would probably stick with the restriction just because, but he’d likely be overturned on appeal if I pressed it that far. Facebook isn’t important enough to me at present to push the issue – I never used it much anyway – and I’m sure the restriction will be negated somehow if/when it becomes so.

      • Brian

        Dustin
        You listed all what I consider social media, I haven’t been on probation in decades, my requirements back then we’re just counseling ,get a job, no drugs or alcohol and no police contact. I actually went to unsupervised mail in reporting the last year of probation. What you guys are dealing with nowadays is harsh, cruel and unusual punishment in my opinion.

        • Dustin

          True that. In Georgia at least (and everywhere else, I’m reasonably sure), probation is supposed to be for the offender to live in society with certain restrictions (ostensibly) connected to his original offense to demonstrate that he will not commit more crimes, whether in lieu of or following incarceration. It’s not supposed to be punishment per se, but has since become so.

        • Brian

          Dustin
          That’s the way it used to be, they made it manageable, thay made so you had time to go to work, not showing up at your job for a ps test and they weren’t trying to violate you any chance they get, that’s my understanding anyway I could be wrong though. We’re all on probation now anyway though, and their trying to violate us every chance they get, so you people that are on probation are really getting screwed with.

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