From poison candy to prowling predators, we keep confusing Halloween’s “spookiness” with actual dangers to our kids. Having scared ourselves to death, we then insist on making the the day ever more supervised. How far overboard can we go? Here’s a wonderful piece by Anat Rubin at The Marshall Project, titled, “This is What Happens to Registered Sex Offenders on Halloween“:
Before the sun sets on Halloween, Allen O’Shea will make his way to the local courthouse in Gaston County, North Carolina, where he will remain for several hours under the watchful eye of law enforcement until trick-or-treating has ended.
This will be O’Shea’s first Halloween as a registered sex offender, a label he earned after having consensual sex with a 15-year-old girl when he was 19. He admits he was wrong. Still, being held in custody because costumed children are walking the streets asking for candy strikes him as absurd.
“My crime had nothing to do with kids,” he said. “I made a 19-year-old mistake. I didn’t go and molest a 5-year-old, and I’m being treated as someone who did.”
The consequences of ending up on a state sex offender registry are harsh, making it extremely difficult to find a job or even a place to live. But on no day is the fallout stranger than it is on Halloween.
Despite research showing no evidence that children are at greater risk of experiencing sex abuse on Halloween than on any other day, states and localities around the country impose severe restrictions on registered sex offenders during the holiday.
Some — including parts of Virginia, Georgia, Delaware and Texas — require sex offenders on probation or parole report to designated locations. Others — such as Missouri, Florida and Nevada — direct some offenders to post signs on their doors that say, “No candy or treats at this residence.” Broader restrictions in most states direct people on the registry to keep their lights off to deter trick-or-treaters and stay away from children in costumes in their neighborhood or at the local mall.
When the complete and documented absence of risk matters not ONE WHIT to lawmakers and law enforcement, there IS no rule of law. Only superstition, prejudice and fear. Which means people are being rounded up by the cops for no reason at all.
But that’s not the message families hear in the weeks before Oct. 31, when articles with headlines such as “Homes to Watch Out for This Halloween,” which run the addresses of local registered sex offenders, are common.
And then Rubin reminds us of the stark reality of our sex offender laws — overkill is the name of the game the rest of the year, too:
For O’Shea and other people on sex offender registries, giving up Halloween isn’t their biggest concern but only a more bizarre example of some of the restrictions they face each day. The terms of O’Shea’s probation prevent him from interacting with children, including his 11-year-old half-brother and 14-year-old step-sister.
“I can’t go to a restaurant near a Chuck E. Cheese,” O’Shea said. “If I go to Wal-Mart, I can’t go anywhere near the toy section. I can’t go to the mall either, because the mall here has an area where the kids play while the parents are shopping.”
“But the most difficult thing is I can’t see my brother and sister,” O’Shea said.
Taking away basic human rights from a teen who had sex with another teen? THAT is beyond scary. — L
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111 Comments
I’m no lawyer, but I’m having a hard time understanding the legality of this. Is being on the registry some sort of ongoing imprisonment? So if someone did something like this kid, and he serves his time or whatever punishment was imposed, does the mere fact that he’s on the list mean that he really hasn’t served his time? How can he be periodically be detained for the same crime over and over? I assume the constitutionality of this has been challenged?
Brooks
Often time the probationary period is years long – I have read of 10-25 years.
It is the probation that has these restrictions.
Other conditions might be notification when moving; that is, you notify authorities you intend to move. Then provide the new address prior to the move. Then notify the authorities that you have moved.
The latter 2 conditions will also have a strict timeline of how far in advance and how soon after having done so.
The issue is the sentencing conditions and the definition of a sex offender
So basically, in some states people are being detained for the day because they MIGHT do something? How is that legal?
“So basically, in some states people are being detained for the day because they MIGHT do something? How is that legal?”
It’s legal because you don’t get on the list unless you get convicted of a crime that allows you to be put on the list. Don’t do the crime, etc.
It’s not that different from the laws that make it a crime for a felon (any felon) to possess a firearm.
“It’s legal because you don’t get on the list unless you get convicted of a crime that allows you to be put on the list. Don’t do the crime, etc.”
I do understand why they are put on the sex offender list, what I don’t understand is how they can be detained during Halloween because they might commit a crime. They are on a list that identifies where they live so people can access the list online and avoid those houses, yet they still aren’t allowed to stay in their house on Oct. 31st.
“It’s not that different from the laws that make it a crime for a felon (any felon) to possess a firearm”
The difference with regards to the issue of detaining people for crimes they might commit is that they don’t detain people during gun shows because they might purchase a firearm.
Shannon, it’s legal because paranoia and fear trump logic and reason.
Think what it would be like NOT to be a sex offender and be told not to decorate for Halloween and not to hand out treats. That is what it is like for the families of sex offenders. The notice goes on the door of the registered citizen’s house…the same house where his family lives. His children can’t have a Halloween party, his wife can’t put pumpkins on the porch as decoration.
Going to a party elsewhere or skipping the porch decoration sound like easy solutions, I know. The public humiliation, though, is NOT easy.
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“How can he be periodically be detained for the same crime over and over? I assume the constitutionality of this has been challenged?”
@Brooks…..I’m sure it has Brooks BUT unfortunately in the United States when it comes to children, or actually minors in general, the Constitution does not seem to apply.
I have seen this among students who were in fact dating at the time, parents intervene and ultimately the boy who is barely over the 16 years of age and no longer considered a minor in Kansas, is brought up on charges for sexual assault, They now and for the rest of their life have the tag of criminal sex offender, it’s unfair, it is often a matter of the girl telling the boy she’s old than she is, or the parents not liking the boy.
Developmentally, kids are not fully able to comprehend fully the consequences of their actions until early 20’s. I think they need to have different rules for penalties for these young offenders.
“I do understand why they are put on the sex offender list, what I don’t understand is how they can be detained during Halloween because they might commit a crime.”
You’re comparing it to the wrong thing.
A person who is on probation might like it very much if they could be entirely free, instead. But… we let people be on probation as an alternative to imprisonment.
So you’re seeing him imprisoned on one day out of 365, and asking “why can he be imprisoned?” When the alternative (for the offender) is being imprisoned 365 days a year.
The reasons why someone is on parole rather than in prison is because we (society) thinks they have been suitably reformed and are ready to re-enter society, even though they have prison time remaining on their sentence. We aren’t quite SURE they’re really reformed, though, so parolees are subject to supervision by the government that a free citizen is not.
Similarly, a person who is sentenced to probation is believed to be of more use to society out of prison than in, but we aren’t sure, so, again, they get more supervision than a free citizen would get. (OK, it’s also a LOT cheaper to put someone on probation than in prison.)
Someone who commits a crime involving, say, embezzlement, might have terms of probation that include being forbidden from seeking work in a bank. I think that’s entirely reasonable, even when taken to extremes (they can’t be a janitor in a building that has a bank in it.)
When the sex-offender registry was invented, it maybe made sense to place restrictions on people who were on it, because the restrictions were related to the crimes. A guy convicted of statutory rape might face a restriction on dating underage girls. An actual predator (there are a few of them) should definitely be restricted from situations similar to what got them in legal trouble in the first place (say, a sports coach who preyed on young children being prohibited from coaching youth sports).
When you can get on the “sex offender” registry for peeing on a wall behind a bar at 2:30am, you should be kept away from bars, not children.
So… parolees and probations can be detained, pretty much at the whim of the probation office. It’s still better than the alternative, which is to be detained 24/7. Sex offenders can be prohibited from participating in Halloween trick-or-treating, rightly so in a small number of cases, ridiculously not in most.
That IS really ridiculous. Shouldn’t the punishment be based on the crime? Putting all sex offenders in the same category, when there are different offenses is silly. This is just over the top. Of course I want our kids to be safe, but doing this to this man (and many others like him) does not increase safety of our kids whatsoever.
The Halloween restrictions are not only for those on parole or probation. Some jurisdictions apply restrictions like these to all registered citizens, even those not under supervision.
“If you do the crime, you do the time” is a mealy-mouthed defense of laws like these. We should just live with punishments that are too harsh for the crime? Hell, no.
There are many questions here I would like to answer. First, some court challenges in a variety of states have been successfully made. They are always specific to certain situations but can sometimes apply to others in the same situation. The US Supreme Court ruled, a long time ago, that public registration itself was not punishment. Much has changed since then. Many judges have stated since then that it is punishment.
Some states lever Halloween restrictions against those on probation or parole. Some lever them against all on the registry. And 16 states do not have them all all. Registrants may do as they wish. And in all states, including the 16, research has turned up no instance of a child molestation or abduction by a registrant on Halloween–ever. It is indeed a problem that doesn’t exist.
In parts of Tennessee the “Halloween curfew” imposed on registrants is two weeks long and the instructions to the registrants prohibit not only Halloween decorations but fall decorations.
Common problems registrants encounter are major difficulty attaining employment; having residency and proximity restrictions against them that shut them out of and away from most livable areas and the public services they need and want, including places to worship; special nonsense rules such as these Halloween ones; vandalism, ridicule, discrimination, and assault on their property, themselves, and their families and children, and even vigilante attacks resulting in murder in some situations. I think most of us would consider these a bit more serious than not being allowed to own a gun.
And none–NONE–of this reduces child sexual abuse. None of it focuses on victims or has any education or prevention component. We are throwing many, many millions down the sex-offender rabbit hole and accomplishing nothing.
The restrictions outlined above may only apply to those on probation (honestly I don’t know), but there are a lot of restrictions that apply for the remainder of the “offender’s” life.
My hubby, now 40 years old, had a troubled childhood. When he was 17 he went to a party and had consensual sex with a 15 year old girl there. According to others at the party, she had sex with *several* boys that night. Since he was 17 (and apparently her other partners that night were all 16 and under – the one who told me the story admitted to being one was 16 at the time) and had already had issues with law enforcement, he was made an example of.
He still, to this day, has to fill out paperwork and have his picture taken every year and has limitations on where he can live and visit, not to mention pay fees for the “service.” He is even supposed to call the school *every time* he plans on showing up – parent/teacher conferences, IEP meetings, just picking his son up from school – and inform them of his status before he shows up. Luckily, we live in a small town and he is very close with the teachers, principal and others his son sees on a regular basis.
The worst part is getting a job, though. Since mine provides a sufficient income and benefits, he gave up pursuing any ‘normal’ job long ago. He now films low-budget horror movies with friends. Doesn’t make a lot of money – nothing to call an income – but he comes home with more than it took in gas to make the drive, so we come out ahead. Also, my older children have all had the opportunity to star in a horror movie, several of which have even been shown on the big screen at special events.
“The Halloween restrictions are not only for those on parole or probation.”
Take it up with the original author, then, who said “Some — including parts of Virginia, Georgia, Delaware and Texas — require sex offenders on probation or parole report to designated locations.”
“Some jurisdictions apply restrictions like these to all registered citizens, even those not under supervision.”
Except that “registered citizens” and “those not under supervision” are mutually exclusive categories. You can be one or the other, but not both at the same time.
“We all want kids to be safe…”
This just triggered a very contrary response in my 1950s/60s-raised brain: No, I =don’t= want kids to be ‘safe’. I want kids to be just a little unsafe, so they learn how to keep themselves safe, AND learn how to take risks without undue stupidity.
Kids who are always “safe” learn neither, and remain perpetual infants, unable to cope. Like, say, today’s college students.
I saw this earlier and immediately thought of this group. Before FRK I remember buying into the hype. Looking at it now though, all I can think is that it HAS to be illegal, there has to be an inherent rights violation involved in this kind of action.
I believe it is Gaston county NC also that recently (sometime this last spring) ruled that individuals on the registry are only allowed to attend church services at the county jail chapel because “kids gather at churches”.
I am of course a parriah for suggesting that keeping people who have made mistakes out of church may be a bit hypocritical.
Not true, James. Those who are on probation are also listed on the sex offender registry. Many states have life-long registration. Once you are there, you don’t come off. And they are also on the public sex offender registry. I am not certain about those on parole, so I am not speaking to those.
Even more bizarre is our cultures fascination with puritanism when it comes to anything to do with sex.
We don’t have a murderer registry. Think about that one for a bit…
What a colossal waste of resources!
Send those police out to keep an eye on TRAFFIC around trick-or-treaters on Halloween, please. Babysitting sex offenders on Halloween and monitoring who puts up a dollar store scarecrow as a condition of parole doesn’t save anyone.
Kids will get killed by cars on Halloween. Help with the big number safety issue that children truly face.
“Those who are on probation are also listed on the sex offender registry”
That doesn’t sound right. Why would people who are on probation be added to the sex offender registry?
“Many states have life-long registration. Once you are there, you don’t come off. And they are also on the public sex offender registry.”
OK, so once you’re “earned” this kind of supervision, you can never go back to being unsupervised. Once you’re a felon, you can’t possess a firearm, either (whether or not your felony involved a firearm in any way.)
I mistyped. Some states have life-long probation. Many also require registration for life. They are not mutually exclusive. Virtually everyone who is convicted of a sexual offense, from the trivial to the heinous, is required to be on the registry. Some are also on probation and possibly also parole; of that I am not certain. And except for the fact that you used it as an example, I fail to see what not being able to own a gun has to do with it. Former offenders don’t want to own guns. They want to be able to live in a house decent enough in which to raise their children and to have a job with which they can can feed their families and for a target not to be painted on their doors in the form of a public registry pointing vigilantes to their doorsteps.
“I mistyped. Some states have life-long probation. Many also require registration for life. They are not mutually exclusive”
You keep repeating this, as if someone said they are.
“And except for the fact that you used it as an example, I fail to see what not being able to own a gun has to do with it.”
Didn’t say that being able to possess (not own) a gun has anything to do with it.
If you get convicted of a felony, you can never legally possess a firearm again. It’s part of the punishment for being a felon. If you get convicted of a sex crime, you get put on the registry. It’s part of the punishment for being a sex criminal. If you don’t want to be treated like a sex criminal, don’t be a sex criminal. (This is not a defense of the sex crimes registry, or of the way American society treats sex criminals, or even of the things America considers sex crimes. But the argument that it’s illegal/unconstitutional simply doesn’t hold water.)
This is a gross injustice. However lets look past that. It’s proof of how emotion can get out of hand and dictate our law system. This degree of worry is the same as a compulsive hand washer. They can scrub their hands with alcohol and still ‘know’ that their hands are covered in germs.
If you become consumed with a thought, it becomes bigger. I have met hypochondriacs that are so worried about their heart that they monitor their heartbeat continually. In fact they have become so in-tuned to the ‘sound’ of their own heartbeat that it has become too loud for them to sleep at night!
We see the same paranoia as this when we arrest a person for urinating in the parking lot and then shun them the same as the world shunned AIDS victims in the 1980’s
James Pollock October 29, 2015 at 12:50 pm #
“The Halloween restrictions are not only for those on parole or probation.”
Take it up with the original author, then, who said “Some — including parts of Virginia, Georgia, Delaware and Texas — require sex offenders on probation or parole report to designated locations.”
“Some jurisdictions apply restrictions like these to all registered citizens, even those not under supervision.”
Except that “registered citizens” and “those not under supervision” are mutually exclusive categories. You can be one or the other, but not both at the same time.
I’m sorry, but I fail to see how I am misreading you–or are there two James Pollocks? You clearly say they are mutually exclusive categories. I am saying they are not. You can definitely be both at the same time.
I have not made the argument that the registry is unconstitutional. The last time that point was argued, SCOTUS said it was constitutional. However, it is not, in theory, punishment. It is termed a civil, regulatory scheme. I would love for every judge in the nation to call it punishment–a few have and have therefore struck down certain applications of it in certain circumstances.
Hi Lenore, Thanks again for posting this to remind us of the hysteria we as parents face in the media every day regarding children’s safety. It’s interesting how it reaches fever pitch at Halloween, and yet every year we take our kids around the local streets for Halloween and all we feel and experience is a great sense of community, sharing, happiness, the laughter of kids and a night they always look forward to and remember for weeks after. (And we’re in Australia!!) But I also remember a previous post where you highlighted that the REAL RISK to children on Halloween is road safety because while cases of child abuse during Halloween are as rare as pumpkin’s teeth….the number of kids who get run down and killed while crossing the road is substantial and a genuine threat to their safety.
“If you don’t want to be treated like a sex criminal, don’t be a sex criminal.”
Don’t pee in a parking lot
If you want to have sex with someone that doesn’t look 25 or older, make certain that you get 3 forms of identification beforehand to be certain that she’s not underage.
If you are a proud father, make certain that your baby photos don’t have naked parts in them and by all means don’t store them on your phone or you will be arrested for child pornography
As long as kids are post-puberty and within lets say 6 years of each other there should not be any consideration of sex crime or molestation if they engage in sexual activity. I am a liberal but this is where liberals and progressives get their well deserved bad wrap for passing stupid laws
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“If you do the crime, you do the time” is a mealy-mouthed defense of laws like these. We should just live with punishments that are too harsh for the crime? Hell, no.”
@marie…..I certainly agree Marie! It would be quite absurd to believe in the “You do the crime, you do the time” concept about a person who received a 20 jail sentence for shoplifting a piece of bubble-gum from the corner store!
“I’m sorry, but I fail to see how I am misreading you—or are there two James Pollocks? You clearly say they are mutually exclusive categories. I am saying they are not. You can definitely be both at the same time. ”
You keep repeating that (being on one kind of supervision) and (being on another kind of supervision) are not mutually exclusive. This is true. They are not. You can definitely be under both kinds of supervision at the same time.
I said that (being on one kind of supervision) and (being under no supervision) are mutually exclusive. Which they are.
Does that help?
“As long as kids are post-puberty and within lets say 6 years of each other there should not be any consideration of sex crime or molestation if they engage in sexual activity”
So… you’d excuse some of Josh Duggar’s childhood indiscretions?
Doesn’t your “let’s say 6 years” have the same problem we already do… nope, these kids are 6 years 1 day apart, so one of them’s a criminal. Wouldn’t be if they were 2 days younger, but… they’re not.
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“As long as kids are post-puberty and within lets say 6 years of each other there should not be any consideration of sex crime or molestation if they engage in sexual activity. I am a liberal but this is where liberals and progressives get their well deserved bad wrap for passing stupid laws”
@Milan….But is it really liberals and progressives pushing for these stupid laws to be passed? Now I am conservative and generally vote Republican most of the time BUT unfortunately it seems to me anyway that the more prudish sex laws come from the more conservative states. But then again, Delaware and Nevada mentioned above as 2 of the states that put restrictions on sex offenders, aren’t exactly bastions of conservatism. Perhaps BOTH parties, Republican and Democrat, are equally bad when it comes to expanding the sex offender registry and piling on the restrictions. Votes! Votes! Votes! Perhaps this is why it’s getting worse, because there is no opposition.
” It would be quite absurd to believe in the “You do the crime, you do the time” concept about a person who received a 20 jail sentence for shoplifting a piece of bubble-gum from the corner store!”
Do you have an example of this actually happening? In my state, shoplifting less that $100 worth of merchandise is a class C misdemeanor. ORS 164.043. Class C misdemeanors have a maximum penalty of 30 days in jail. ORS 161.615.
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“So… you’d excuse some of Josh Duggar’s childhood indiscretions?”
I thought Josh Duggar was much more than 6 years older than his little sisters when he touched their private parts while they were sleeping.
Ah, James, finally I see the source of our misunderstanding and lack of communication. “Under supervision” or “community supervision” refers only to parole and probation. It is not used to refer to the registry. Parole and probation are part of punishment. The requirement to register is not–in theory nor in law. A judge may inform a defendant who has been found or pled guilty of his obligation to register, but the obligation to register is not part of punishment handed down from the bench. When one is finished with parole/probation, he is no longer under supervision, but if his offense was a sexual one, he will remain on the registry, often until he dies. Some people with sexual offenses do their entire sentence in prison and emerge from prison supervision free and then begin the requirement to register.
Does that help?
@James…..to my knowledge no, there has not been a person who received a 20 year jail sentence for shoplifting a piece of bubble-gum from the corner store. I was just using that as a hypothetical example where the time would be completely disproportionate to the crime but yet there’d be people who felt it was justified. I believe Mr. O’Shea above falls into that category.
“I thought Josh Duggar was much more than 6 years older than his little sisters when he touched their private parts while they were sleeping.”
Was he? I’ll admit to not paying much attention to the story, or anything else concerning any of the Duggars.
So, amend to “would you excuse Josh Duggar if he was molesting one of his sisters or their friends who were less than 6 years younger than he is?”
(Of course, reading that as meaning that BOTH parties have to be post-pubescent still leaves us with the possibility of an 18-year-old and a 12-year-old being presumptively legal.
In contrast, I think the only change needed is to change the irrebuttable presumption that the underage person is incapable of consent, to a rebuttable presumption that the underage person is incapable of consent. Where the person is capable of giving meaningful, informed consent, and has, in fact, given consent, and the defense can prove it, there should be no crime. But I think the burden of proof should still be on the defendant.
“”Under supervision” or “community supervision” refers only to parole and probation.”
If you have to show up at specified times and places, and report your comings and goings, you are being supervised.
“the obligation to register is not part of punishment handed down from the bench.”
Where did it come from, then?
” I believe Mr. O’Shea above falls into that category.”
Mr. O’Shea above is a felon, not a misdemeanant.
Hey Lenore, remember your Sex Offender Brunch? How would you feel about hosting a Sex Offender Halloween Party?
When I was in the Navy, I learned about the Uniform Code of Military Justice. (UCMJ) I didn’t study the laws. However I did see a lot of thing done that were considered as ‘justice’.
When I was going through Machinery Repairman school, we had a random search of the barracks with sniffer dogs. Someone got caught with ¼ ounce of pot. He was sentenced to 7 years of hard labor for this offence. However this wan’t the sickening part.
The part that really made my stomach churn was the newspaper. This was front page news in the Navy Times about how wonderful this captain was to be so tough on drugs. It also praised him for cleaning up the drug problem in the military. His tough stance will really do the trick. The amount of praise that was lashed on this captain was so thick that I thought his face was going to be carved on Mt Rushmore!
TRUE STORY! I wish that I saved it. If you don’t believe me, search back issues of ‘Navy Times’ at around 1989
I remembered that story when I started thinking about the political grandstanding about being tough on sex crime.
James, it came from legislation. First, the Wetterling Act and the Adam Walsh Act, which created the registry as we know it today, and then Megan’s Law, which mandated public notification. Then every state gets to pick and choose which specific crimes fall under the purview of registration. Every year more are added. And out of that, fueled largely by media and myths, grew such things as residency restrictions and Halloween restrictions, a totally fabricated issue.
One interesting side-note here is that Patty Wetterling, mother of Jacob Wetterling, has within the past two or three years denounced the registry and what it has become. Another interesting side-note is that there is no evidence that either Jacob Wetterling nor Adam Walsh, son of John Walsh who built a career out of his son’s death, were victims of sexual predators. Jacob was never found nor anyone arrested for his disappearance, and Adam was the victim of a self-confessed serial killer, not a sex offender. Only Adam’s head was found, and his killer died in prison.
“James, it came from legislation.”
So did all the other things that result from being convicted of a crime.
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“It would be quite absurd to believe in the “You do the crime, you do the time” concept about a person who received a 20 jail sentence for shoplifting a piece of bubble-gum from the corner store!”
The California three strike law is notorious for this.
This article mentions a guy that got life for stealing a dollar worth of change from a parked car.
http://www.nytimes.com/2010/05/23/magazine/23strikes-t.html?_r=0
Most do not receive parole. Generally speaking most do 100% time. Post incarceration a 3-5 year “conditional release begins. This will undoubtedly puzzle most of you … if a plea deal is for 5 years and you complete 100% and then face 5 years conditional release the 5 year plea deal is in essence 10 years not five. So, an individual is released from prison having served 100% and are now on 5 years supervision with threat of imprisonment if it is determined a violation of conditions. Also, understand approximately 85% of re-incarceration is technical violations, not commission of new crimes. Justice for all!
“if a plea deal is for 5 years and you complete 100% and then face 5 years conditional release the 5 year plea deal is in essence 10 years not five.”
It’s not “in essence” ten years. It’s ACTUALLY ten years. If you come out of prison with 5 years of post-prison supervision, you haven’t completed your sentence… just the prison part (and, if you can’t behave, only the FIRST prison part.)
“The California three strike law is notorious for this.”
The California three strike law, like all habitual offender laws, doesn’t send you to prison for life because you committed a crime (of whatever sort). They send you to prison for life because you won’t stop committing new crimes. You get a long prison term because, obviously, the previous shorter ones didn’t do the trick in converting you from lawbreaker to law-abiding citizen.
Wrong … you complete 100% of you 5 year sentence and face 5 years “conditional release” that is a fact. It is not considered probation or parole it is a conditional release.
I get that they want to make the whole list horrible to be on to deter people. The problem is that the list of crimes that land someone on the sex offender list has become so large that crimes that have nothing to do with sex or have no actual offense against someone land a person on the list for life. When the list of crimes keeps expanding, the number of “sex offenders” increases too, which means this idiotic punishments and restrictions aren’t deterring anyone, and of course they do nothing for actual safety. This is my major beef with the registry. If it was restricted to people who were adults convicted of child molestation or actual rape (not these teen-on-teen statutory) where the judge was able to look at the facts on a case-by-case basis and only then sentence someone to be on it, then it would do an actual public service. Instead, public urination gets you on it. How exactly is someone taking a piss on the side of an empty highway in the middle of the night a threat to small children? Did they touch a child? Rape a child? Nope. So why are they being punished like they did?
Clean up the registry, set actual standards of people who are genuine threats, and stop punishing everyone else by acting like they’ve all raped small children!!
“Wrong … you complete 100% of you 5 year sentence and face 5 years “conditional release” that is a fact. It is not considered probation or parole it is a conditional release.”
Source?
I’ll counter with mine:
http://legal-dictionary.thefreedictionary.com/conditional+release
Also, ORS 135.260, titled “Conditional release”, describes letting people out of jail before their trial, not after their conviction. Your jurisdiction may have different terminology.
“I get that they want to make the whole list horrible to be on to deter people.”
I agree with everything you wrote except this leadoff sentence.
I think there is honest stupidity at work, and when legislators (or, sometimes, voters) decide on what restrictions to place on sex offenders, they focus on the very small number of people who are actually dangerous (never mind the even smaller number of people who are dangerous to strangers) and lose sight of the fact that so many people are on the list who are not at all dangerous.
It’s OK to treat convicted sex perverts badly, because, after all, it’s not like they’re PEOPLE. We have to protect the good people from the ANIMALS who live amongst us, preferably by making them go somewhere else. So, OK, this one’s not so much a sex pervert as a person who didn’t think ahead and realize that when the bar closes, you can’t use its indoor plumbing any more, because the bartender wants you out so they can close up and go home. You’re just collateral damage in our never-ending struggle with the sex pervert animals. (Plus, of course, keep in mind that it was only THIS MILLENNIUM that the U.S. Supreme Court told states they couldn’t criminalize homosexuality (yes, less than 15 years ago). Most people, whether they have kids or not, have a strong, visceral reaction to the idea that a person who molested a child lives near them. A substantial number have that same kind of reaction when they consider the possibility that there might be gays living nearby, as well. There remains a sizable population who can’t tell the difference between the two.
Source?
I know the legal definition. I also know ho it is being misapplied. This is not conjecture or speculation.
http://doc.mo.gov/Documents/prob/OrangeBook.pdf
… also … Peterson argues that conditional release is consecutive to supervised release and that the extension of his incarceration beyond the completion of his sentence, based on a supervised-release violation, is unlawful. We agree. – See more at: http://caselaw.findlaw.com/mn-court-of-appeals/1529603.html#sthash.U9wa976d.dpuf
http://caselaw.findlaw.com/mn-court-of-appeals/1529603.html
… also … http://law.justia.com/codes/kentucky/2012/chapter-532/532.043/
As best as I can tell from reading through the MO statutes, all sentences for felonies are required to include both a term of imprisonment and a term of supervised release. (Missouri Revised Statutes, Section 558.011 4(1)) It sounds a lot like what everybody else calls “probation”. Lots of states allow or even mandate that prison sentences be followed by post-prison supervision, aka “probation”. YMMV.
Reforming Sex Offender Laws …
RSOL envisions effective, fact-based sexual offense laws and policies which promote public safety, safeguard civil liberties, honor human dignity, and offer holistic prevention, healing, and restoration.
http://nationalrsol.org/about-us/vision-mission-and-goals/
“Lots of states allow or even mandate that prison sentences be followed by post-prison supervision, aka “probation”.
Probation or parole is not applied to those serving 100% of their sentence. If you and I enter a contract for 5 years upon expiration of said contract are you bound to ten years?
“Probation or parole is not applied to those serving 100% of their sentence.”
If you are sentenced to a term of prison followed by a term of probation, and you haven’t served any of your probation, you haven’t served 100% of your sentence, by definition.
“If you and I enter a contract for 5 years upon expiration of said contract are you bound to ten years?”
Depends on whether I signed a contract for 5 years, or a contract for ten years. A sentence of 5 years imprisonment followed by 5 years of probation is a ten-year sentence, not a five year sentence.
As an example, consider the contract I signed when I enlisted. It called for six years of active service, followed by two years of inactive service. It’s an 8-year contract, even though I only had to serve for six years.
… I also draw attention to the inclusion of parole, probation and conditional release, a clear indication they differ otherwise needless to include all. As you stated earlier and your original argument:
“Conditional release”, describes letting people out of jail before their trial, not after their conviction. Your jurisdiction may have different terminology.”
Clearly as I stated before “conditional release” is misapplied and has been used to further punish sex offenders even after completing 100% of their sentence.
“… consider the contract I signed when I enlisted. It called for six years of active service, followed by two years of inactive service. It’s an 8-year contract, even though I only had to serve for six years.”
I will agree if the “conditional release” is included in the plea agreement and part of “final sentencing” otherwise it is not part of the agreed upon terms.
I also draw attention to the inclusion of parole, probation and conditional release, a clear indication they differ otherwise needless to include all. As you stated earlier and your original argument:”
Note that there isn’t a comma between “probation” and “and”. This indicates that it should be read as (parole) and (probation and conditional release) rather than as (parole), (probation) and (conditional release).
“Clearly as I stated before “conditional release” is misapplied and has been used to further punish sex offenders even after completing 100% of their sentence.”
Clearly, “clearly” does not mean the same thing to you and I, as you’ve proved no such claim. The statutes you’ve referred to (Missouri, Kentucky, and Minnesota) ALL had mandatory post-prison supervision as part of sentencing. You cannot reach 100% before you’ve even started part of your sentence.
“I will agree if the “conditional release” is included in the plea agreement ”
If it’s mandatory, it can’t NOT be included.
Here’s the text of the Missouri statute referred to earlier:
4. (1) Except as otherwise provided, a sentence of imprisonment for a term of years for felonies other than dangerous felonies as defined in section 556.061, and other than sentences of imprisonment which involve the individual’s fourth or subsequent remand to the department of corrections shall consist of a prison term and a conditional release term. The conditional release term of any term imposed under section 557.036 shall be:
(a) One-third for terms of nine years or less;
(b) Three years for terms between nine and fifteen years;
(c) Five years for terms more than fifteen years; and the prison term shall be the remainder of such term.
If you think it is OK to sentence someone to 5 years they complete 5 years and then they are subjected to another five years conditional release that is your position. I do not agree, 5 years is 5 years otherwise make the sentence 10 years.
Furthermore final sentencing is for a purpose the judge makes it clear a person knows what he or she is agreeing to. If conditional release is not part of the plea agreement or final sentencing then it becomes “in essence” double jeopardy. This is my position.
You asked for a source that tells you conditional release applies to more than what your source states and I did. I am demonstrating here, to you and others, the system has twisted something previously intended for one purpose to fit the needs of a modern day witch hunt, that is all.
… did you read Peterson vs. were it states … incarceration beyond the completion of his sentence … is anyone really OK with this?
So you’re seeing him imprisoned on one day out of 365, and asking “why can he be imprisoned?” When the alternative (for the offender) is being imprisoned 365 days a year.
Well, to the best of my knowledge, probation has terms, does it not? They usually state things like the police can search your house at any time, you can’t associate with known criminals, etc. Either “you’ll be imprisoned on Halloween” was included in those terms at the time of the plea or at sentencing, or it wasn’t. If it wasn’t, can it really be imposed later, by a jurisdiction other than the sentencing jurisdiction? It sounds a bit like an ex post facto punishment – perhaps if a person had known of this term, he wouldn’t have taken the plea in the first place.
When it comes to lawmaking, headlines rule the roost. Propaganda is also a huge player. Whenever we try to change the law, the opposition will drag up an extreme example (that makes headlines) to shoot down the proposal.
For example if Joe Blow makes a bill that takes minors off the sex offender list then the headline will say JOE BLOW IS TRYING TO ALLOW CHILD RAPISTS TO GO FREE! (I’m exaggerating but not by much)
This sells papers and increases ratings. Perhaps you buy the paper but see through the story. You still bought the paper. Furthermore you’ll still purchase another the next day. I’m not saying that you personally will do this, I’m saying that the media has done the math and knows that they will make more sales then lose sales from the people that are fed up with this trick. (or feel guilty because they are part of the problem) They will continue to do this until the math says that the number of people that boycott their cheap trick out-way the increase of sales
https://www.youtube.com/watch?v=Z0Ppo2Cdx8w
“If you think it is OK to sentence someone to 5 years they complete 5 years and then they are subjected to another five years conditional release that is your position. I do not agree, 5 years is 5 years otherwise make the sentence 10 years.”
A sentence of 5 years in prison plus 5 years of post-prison supervision IS a sentence of 10 years. Your wish is granted.
“Furthermore final sentencing is for a purpose the judge makes it clear a person knows what he or she is agreeing to.”
You know that a person doesn’t have to agree to a sentence to have it imposed, right? You know that judges are not required to accept the prosecution’s recommendation of sentencing, right?
“did you read Peterson vs. were it states … incarceration beyond the completion of his sentence ”
Did you read, that his sentence was 366 days imprisonment, PLUS ten years post-prison supervision? The department of corrections was arguing that the parole he was on (which he violated) allowed them to hold him beyond his prison term because what he did was ALSO a violation of his post-prison supervision. The court held that he can’t be said to have violated his post-prison supervision before he’s started his post-prison supervision term. The department of corrections was trying to argue that his parole and his probation run both concurrently AND consecutively, and the court slapped that down.
@ Debra
at 15, it has been proven that the brain isn’t fully developed yet. If a girl consents to sex, she isn’t capable of making that decision and therefore it’s rape. However the ‘not yet developed brain’ argument doesn’t work for guys. We should punish them for life instead.
God Bless America
“Well, to the best of my knowledge, probation has terms, does it not?”
Don’t confuse parole with probation. A parolee’s freedoms are much more sharply limited, and include things like surprise inspections, warrantless search, and intensive monitoring. Probation tends to be much less intrusive.
“Either ‘you’ll be imprisoned on Halloween’ was included in those terms at the time of the plea or at sentencing, or it wasn’t.”
It wasn’t. Rather, a much more general term was, along the lines of “if we find it to be in the public interest, you may be be required to be detained at the time and place of our choosing.
“It sounds a bit like an ex post facto punishment — perhaps if a person had known of this term, he wouldn’t have taken the plea in the first place.”
You’re still looking at the wrong comparison. It’s not “you have to be detained on Halloween”, it’s “you get to be out of jail every day except Halloween”. If your choice is “be in jail for the next year” or “Be out of jail, but they’re going to be all up in your business for the next year, and you have to report in on Halloween”… the choice is pretty clear. Having them all up in your business sucks, and most people are going to think it’s better if they’re not all up in your business for the next year, but that option has gone once the prosecutor has enough evidence to convict you.
The job of informing the defendant what they’re choosing is the defense attorney’s. The defendant makes the choice of whether to accept the offered deal or not, the defense attorney is there to make sure he or she understands what’s been offered, and why, and what the ramifications are of choosing to take, or to reject, the offered deal.
Richard – a murder registry. Consider my mind blown.
… Did you read, that his sentence was 366 days imprisonment …
Clearly you are in favor of perpetually incarcerating sex offenders … in regard to comment … You know that a person doesn’t have to agree to a sentence to have it imposed, right? … you miss the point, it was never presented in the plea deal or at final sentencing therefore no opportunity to disagree …
Do not confuse probation, parole and conditional release … I speak form first hand knowledge … at times you sound like an attorney at times not … these real life issues are interesting to talk about but talk is cheap …
James … in a plea deal a person does have to agree it is negotiated between prosecutor, defense attorney with judge approval and the defendant can accept or reject …
“Richard — a murder registry. Consider my mind blown.”
According to Wikipedia, several states do actually have one.
“Clearly you are in favor of perpetually incarcerating sex offenders”
Again, we have this problem of disagreement of what “clearly” means.
“at times you sound like an attorney at times not”
Not a lawyer. I’m an IT professional, and currently, I work in a bank.
“in a plea deal a person does have to agree it is negotiated between prosecutor”
Not quite how it works.
The prosecutor suggests that, in exchange for a guilty plea and forgoing the right of appeal, the prosecutor will make a recommendation to the judge what the sentence should be. If this sounds good to the defendant, they will enter a plea of guilty. At this point, the judge may accept the prosecutor’s recommendation, or they may not. If they don’t, they will usually allow the defendant to change their plea… but not always.
The prosecutor cannot bind the judge. In practice, judges don’t blow up plea deals without a really, really good reason. But the possibility is always there.
It’s a bummer that you’ve experienced this first-hand, and that your lawyer didn’t explain the terms well enough for you. But a sentence that includes a year and a day in jail plus ten years of post-prison supervision isn’t over in 366 days. A sentence that includes 5 years in prison and 5 years of post-prison supervision is not the same thing as a sentence that includes 5 years in prison. One is completed after 5 years (barring new offenses) and the other still has 5 years to run 5 years in.
Does anyone need any more evidence that there is MASS HYSTERIA over child sex abuse? Aren’t the opportunists and profiteers in the sex abuse rescue business to blame? Aren’t our elected government representatives guilty of allowing this insanity to continue?
If your choice is “be in jail for the next year” or “Be out of jail, but they’re going to be all up in your business for the next year, and you have to report in on Halloween”… the choice is pretty clear.
Yes, that would be pretty clear. But what if the choice is “agree to this deal, or go to trial”? I might be willing to go to trial if told that I’ll be detained on Halloween.
However, if the agreement does say “and be detained whenever we feel like” then fine. As a matter of public policy, I think that’s a poor idea, and the few agreements I’ve seen haven’t had clauses like that, but if most do, so be it.
I largely agree with what you’re saying on this thread, by the way (shock, I know). However, what about a person not on probation or parole who is detained on Halloween? Let’s take the most extreme case first – a person who was convicted long before registries existed, who is then ordered, when the registry is created, to register. A municipality then writes a law saying that all registered offenders will be detained on Halloween. How can this one be defended under the 4th amendment? It wasn’t part of the sentence, it was imposed after the fact, and it’s a detention without even reasonable suspicion.
“Yes, that would be pretty clear. But what if the choice is “agree to this deal, or go to trial”?”
Then that would be totally different. What if the choice is “if I do this, I might be convicted of a crime. Should I do it or not?”
“However, if the agreement does say “and be detained whenever we feel like” then fine. As a matter of public policy, I think that’s a poor idea, and the few agreements I’ve seen haven’t had clauses like that, but if most do, so be it.”
You’ve seen agreements that say “you’re going to go to jail, but we’ll let you out on Halloween?”
“I largely agree with what you’re saying on this thread, by the way (shock, I know). However, what about a person not on probation or parole who is detained on Halloween?”
What about it? Why stop there? What about a person who is not on probation or parole who is executed at noon in the public square?
The requirement to register as a sex offender is not part of a criminal sentence. For example, if you look at the statute for rape in my state, you will see no mention whatsoever of the sex offender registry in the portion of the statute that governs the allowed sentence. I don’t believe that the sex offender registry is mentioned at all in the entirety of the criminal code. The requirement for a convicted rapist to register as a sex offender is found in a completely different statute outside the criminal code which says that anyone convicted of rape (and a whole bunch of other things) has to register as a sex offender for life and defines what that means.
The requirement to register as a sex offender is what is referred to as a collateral consequence of a criminal conviction. There are many of them. Someone already mentioned losing the right to possess a firearm. There is also losing the right to vote, being disqualified to sit on a jury, driver’s license suspensions, the inability to be licensed in certain professions, losing your license to practice in certain professions, deportation if you are not a US citizen and others that I can’t think of right now. None of these things are part of the criminal code or a criminal sentence, but are instead part of separate laws governing who can own a gun or vote or drive or live in this country, etc. These are not things can be negotiated as part of a criminal sentence. They just are as a matter of law.
Collateral consequences, because they are not criminal penalties, are not limited by the duration of a sentence. They can be shorter, longer or completely coincidentally the same length. Their purpose is to regulate separate behavior, not to punish for a crime. A criminal is not deported to punish him for committing the crime; he is deported because he is no longer considered a suitable guest. The right to own a gun is not taken away as punishment for committing a crime, but because you are no longer considered a suitable gun owner.
The sex offender registry has been treated the same way. It is not viewed as punishment for a crime, but as a statement that society believes that the person convicted is no longer suitable to engage in the prevented behavior. I don’t agree but that has been the interpretation so far by the higher courts. Some state courts have knocked down certain parts of the laws, but that has mostly been done because those particular parts violated some other right. For example, laws that force sex offenders to move constitute an illegal taking of property.
I think there is a good argument that requiring a sex offender to go to a police station (or wherever) and remain there for a certain period of time is an illegal detention. It would probably only apply to people who entered a plea before that requirement was written into the law though.
Donna, very well explained; thank you. That is why the requirement to register can be imposed retroactively; if it were punishment it could not be as it would be in conflict with constitutional protections.
Incidentally, and you most likely know this and were just using it as an example, not every state imposes the loss of voting rights and some of the others. Each state has its own policy, ranging from no loss to total loss. A couple provide the mechanism for the incarcerated to vote. The loss of gun ownership is, I believe, the only one applied to everyone with a felony record without exception.
” The loss of gun ownership is, I believe, the only one applied to everyone with a felony record without exception.”
Gun possession, not gun ownership.
James, I apologize that I don’t have the energy to try to figure out what your comment has to do with my question.
Donna, thank you for the thorough explanation. I’m still struggling with how to justify the Halloween detention, even for those convicted after it was instituted, though. If forcing sex offenders to move is an illegal taking, and therefore not a permitted collateral consequence, why isn’t locking them up an illegal detention (it’s not even like you can reasonably claim there’s some risk posed)?
I guess what I’m asking is: gun possession, or even voting, strikes me as fundamentally different from “not being locked in a police station all day.” It seems wrong to use “well, your past actions have shown that not jailing you for the day is a bad idea” as a legal justification, whereas it seems to make at least some sense with guns. (I can’t really justify voting, either.) Maybe I’m having trouble finding a legally relevant difference, but I sense that there ought to be one. Maybe it’s something like the deportation example you gave: if an undocumented immigrant commits a crime, they’re not a suitable guest – but jailing the offender on Halloween looks more like deporting a citizen.
Philosophically, it’s a different story (and, in my opinion, a mess), but I don’t want to get into that, just understand the legal side. By the way, as a legal matter, the 8th amendment applies to criminal punishments, right? So there wouldn’t be any constitutional protection against cruel and unusual collateral consequences?
Adding to the Josh Duggar conversation…the horrible thing in his case, wasn’t the age difference…it was the fact that what he did was non consented to by the victims. (Also, it was incest, but i just want to focus on the non consensual part.)
THAT is what makes it so different from two teenagers having consensual sex.
” I’m still struggling with how to justify the Halloween detention”
Because it’s applied to people who are on parole, or on probation… people who’ve already forfeited their rights to do as they please by virtue of their convictions.
We have some two million incarcerated persons in the United States. None of them are free to go and do as they please on Halloween.
No, James; one more time. Halloween detention and special requirements and prohibitions are applied to those on the registry who are NOT on parole or probation at places all over the country. SOME places apply it just to those on parole or probation. SOME places apply it to everyone on the registry regardless. SOME places don’t apply it to anyone at all. And remember–this has been covered. Parole and probation are part of punishment. Registration is not.
“No, James; one more time.”
One more time. Take it up with the original author, who says:
“Some — including parts of Virginia, Georgia, Delaware and Texas — require sex offenders on probation or parole report to designated locations. Others — such as Missouri, Florida and Nevada — direct some offenders to post signs on their doors that say, “No candy or treats at this residence.” Broader restrictions in most states direct people on the registry to keep their lights off to deter trick-or-treaters and stay away from children in costumes in their neighborhood or at the local mall.”
People who are on probation or parole report to designated locations (AKA “are detained”). Others, who are on the registry but are no longer under parole or probation, are not allowed to accept trick-or-treaters (AKA “are not detained”).
So… how do we justify the detainment of some people on Halloween… they are on parole, or on probation, and thus are subject to restrictions that non-convicts are not. Need more help with this?
Also, limits are no use of a cell phone, no ability to access internet, can not live legally in a home that HAS Internet access, meetings with probation officer weekly with no hope of being released permanently, if they feel you are being difficult you can be put on an electronic bracelet and given a curfew, etc…
James, what you said made sense, so I was concluding you were right and then ran across this: “Lights-Out” in Taylor County, TX (largely Abilene) has for years now required that “All registered sex offenders are required to meet at the courthouse from 7:30 p.m. to 9:30 p.m. Halloween night….” Wouldn’t you know it would be Texas?! And what do you want to bet that’s not the only place. There’s certainly a chance this would be found unconstitutional if it were pushed, but that’s not likely to happen. It’s one night a year–at least for now. No one is going to the expense and trouble of attorneys and suits, etc. They’ll just go get locked up for two hours and then wait and see what happens next.
@sexhysteria
“Does anyone need any more evidence that there is MASS HYSTERIA over child sex abuse? Aren’t the opportunists and profiteers in the sex abuse rescue business to blame?”
I agree with you — sort of. They are to blame. However we need to accept some of the blame as well for swallowing the fear hook line and sinker. Not only do we finance them to continue but we help them to distribute the fear. We can jump up and down screaming “I AM A HELPLESS VICTIM BECAUSE THIS FEAR IS TOO ADDICTING FOR ME TO RESIST! In the same way a smoker can put 100% of the blame on tobacco companies because “I’m a helpless victim because the tobacco is too addicting for me to resist”.
“They’ll just go get locked up for two hours and then wait and see what happens next.”
If they’re going to the courthouse, they’re probably not locked up. Most likely, they’re in the big room the jury pool meets in, to see if they’re selected as jurors for a trial.
I think a person could probably ignore the summons if they aren’t on parole or probation (NOT legal advice!) and win if they were subsequently charged with a crime, but… if something DID happen to a child, anywhere in a 100-mile radius, guess who’s suspect number 1, 2 and 3?
if something DID happen to a child, anywhere in a 100-mile radius, guess who’s suspect number 1, 2 and 3?
Depends what happens to the child. If a child gets thrown across a room, together with their desk, I know who I suspect. I wouldn’t call for detaining all police officers to prevent that, though.
” I wouldn’t call for detaining all police officers to prevent that, though.”
Today’s lesson is about the difference between “being detained” and “establishing a solid alibi”.
The prosecutor cannot bind the judge. In practice, judges don’t blow up plea deals without a really, really good reason. But the possibility is always there.
You shouldn’t make blanket statements like this. In some states, this is not true. In my state, a defendant is allowed to withdraw a guilty plea if the judge doesn’t abide by an agreed upon sentence.
Gun possession. Not gun ownership.
This is also not true. I am not really sure what practical use it would be to own something that you could never use or touch, but a felon that owned a firearm that was nowhere near them could be prosecuted.
You shouldn’t make blanket statements like this. In some states, this is not true. In my state, a defendant is allowed to withdraw a guilty plea if the judge doesn’t abide by an agreed upon sentence.”
Maybe you should have quoted the part where I said something about withdrawing the plea. Did I say that the defendant is never allowed to withdraw their plea?
Does the fact that there’s a mechanism provided, so that procedurally there’s something a defendant can do if the judge doesn’t go along with the prosecutor, prove that the judge doesn’t have to go along with the prosecutor? And what is the statement you’re objecting to? “The prosecutor cannot bind the judge.”
So, you call me out for making a blanket statement, then provide evidence that the blanket statement you’re objecting to is true.
“I am not really sure what practical use it would be to own something that you could never use or touch”
Fortunately, our laws are not drawn on your failure of imagination.
“a felon that owned a firearm that was nowhere near them could be prosecuted.”
Under what statute?
“”a felon that owned a firearm that was nowhere near them could be prosecuted.”
Under what statute?”
I’ll go first. The federal law that prohibits possession of a firearm by a felon is 18 USC 922(g).
It covers a lot of people besides felons, and it bans a couple of things besides possession, but it does not ban ownership. (If it did, it would probably be a “taking” under the fifth amendment, and require that payment be made to the felon.)
Ok. I’ll quote the part where you were factually incorrect.
” At this point, the judge may accept the prosecutor’s recommendation, or they may not. If they don’t, they will usually allow the defendant to change their plea… but not always.”
This is not true. In my state, at least, under People v Killebrew, a defendant will ALWAYS be able to withdraw their plea if the judge deviates outside of what the prosecutor has agreed to.
As for the felon gun thing, you quoted the applicable statute. If a felon possesses, actually or constructively, and guns are contraband and would be subject to forfeiture. There are some limited circumstances where a person convicted of a felony would be able to have their guns sold and keep the proceeds. In a sense, this would be ownership, but it is temporary and a convicted felon would not be allowed access to them or purchase any additional guns.
“God Bless America”
They need it most?
“This is not true. In my state, at least”
I’d like to direct you to the federal rules of criminal procedure., in particular, to rule 11(c). What does it say about whether or not the judge is required to adhere to the terms of a negotiated plea agreement?. Well, there’s Rule 11(c)(3)(B)
(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.
Last time I checked, the federal rules of criminal procedure applied in all 50 states.
“As for the felon gun thing, you quoted the applicable statute.”
And that statute criminalizes possessions and attempts to possess. It does not criminalize ownership. Thus, the correction above, quoted in it’s entirety:
“‘ The loss of gun ownership is, I believe, the only one applied to everyone with a felony record without exception.’
Gun possession, not gun ownership.”
You don’t have to possess to own, and you don’t have to own to possess.
James Pollack
25% of these posts are James Pollack “correcting” other posts
How lucky we all are for his public spirited energy in setting us all straight.
Perhaps he can get a shared byline for this site
“25% of these posts are James Pollack “correcting” other posts”
And now we have you “correcting” me. How meta.
Last time I checked, the federal rules of criminal procedure applied in all 50 states.
They do…in federal criminal proceedings. State criminal proceedings are subject to that state’s rules. I practice criminal law in my state. I know the rules.
As for the felon owning a gun, you are still wrong, but it seems clear that you already know this.
“I practice criminal law in my state. I know the rules. ”
Then why did you “correct” me when I’m not wrong?
SteveS,
I will thank you like I have thanked Donna, for b—- slapping James, our resident Google Attorney. Of all his comments and so called corrections, there is nothing that he couldn’t have just browsed for.
It is hilarious watching him flail against those that are currently practicing attorneys.
One question, if you don’t mind. Someone had mentioned that in NJ they impose curfews on Halloween, for those under 18. Do you think there would be any legal grounds to contest these curfews?
James, you were not correct. Michigan and the Feds, in terms of allowing a defendant to withdraw a guilty plea under the circumstances we have been discussing, are not in agreement.
Warren, curfews have been upheld, but I don’t know if they would be allowable under what you have mentioned.
“James, you were not correct. Michigan and the Feds, in terms of allowing a defendant to withdraw a guilty plea under the circumstances we have been discussing, are not in agreement.”
I don’t recall saying that Michigan and the Feds are in agreement.
Or anything at all specific to Michigan in any way. Or even “Michigan” (until just now.)
You originally quoted (and disputed), this statement:
“The prosecutor cannot bind the judge. In practice, judges don’t blow up plea deals without a really, really good reason. But the possibility is always there.”
Even though it is completely true.
You offered as a counter:
” In my state, a defendant is allowed to withdraw a guilty plea if the judge doesn’t abide by an agreed upon sentence. ”
But, in your state, a defendant in federal court may or may not be allowed to withdraw a guilty plea if the judge doesn’t abide by an agreed upon sentence. So… even in your state, a defendant will (rarely) not be given an opportunity to withdraw a guilty plea if the judge doesn’t abide by the agreed-upon sentence.
Then you said that what you REALLY objected to was:
” At this point, the judge may accept the prosecutor’s recommendation, or they may not. If they don’t, they will usually allow the defendant to change their plea… but not always.”
Even though this is also completely true.
“As for the felon owning a gun, you are still wrong, but it seems clear that you already know this.”
Seriously?
If you had a client who was charged under the statute, you’d tell them they could escape conviction by showing that they didn’t own the firearm in question? Or are you going to (correctly) tell them that ownership is immaterial, because the statute criminalizes possession, not ownership?
Warren, I did find that a federal court in NJ overturned a curfew statute. It appears that federal courts are split on curfews. We may see the Supreme Court take it up some time soon.
James, I have already showed you where you were wrong. I don’t see the point in doing it again. Why don’t you run along and let the grown ups have a conversation.
“James, I have already showed you where you were wrong.”
I’m sure that in your imagination, that’s EXACTLY what you did.
“I don’t see the point in doing it again.”
Or ever.
“To argue with a person who has renounced the use of reason is like administering medicine to the dead.”
-Thomas Paine
“”To argue with a person who has renounced the use of reason is like administering medicine to the dead.”
So, to you, reason is “I showed you wrong” = “I said something that didn’t contradict what you said, and was shown to be factually incorrect anyway, and yet I still insist you were the one who was wrong”, and you think I’M the one who’s renouncing reason?
OK. Well, I’m not going to follow you down the rabbithole, but will still be here in the real world, if you’d like to come out of your bubble.
Here, Steve, I’ll make it easy for you, and make it a multiple choice test
1) Which of the following statements is factually incorrect:
A) The prosecutor cannot bind the judge. (A judge may reject any suggested plea deal)
B) In practice, judges don’t blow up plea deals without a really, really good reason.
C) But the possibility is always there.
D) None of the above
2) Did I say that the defendant is never allowed to withdraw their plea?
A) Yes
B) No
3) Which of the following statements is not correct:
A) the judge may accept the prosecutor’s recommendation
B) they may not (accept the prosecutor’s recommendation).
C) If they don’t, they will usually allow the defendant to change their plea
D) but not always
E) None of the above.
4) Did you say that in “your state”, the defendant is always allowed to withdraw their plea (if the judge doesn’t follow the plea deal)?
A) Yes
B) No
5) In “your state”, is the defendant always allowed to withdraw their plea (if the judge doesn’t follow the plea deal)?
A) Yes
B) No
You can self-score.
The correct answers are D, B, E, A, B. How’d you do, Steve?
This isn’t where I parked my car!
And, Steve, here’s an extra credit question for you.
When you couldn’t win an argument by presenting a superior argument, did you resort to condescension, instead?