ATSA is sympathetic but recommends more of the same for registrants

The Association for the Treatment of Sexual Abusers (ATSA) recently published recommendations that registry laws be based on current research. The registry community is rightly excited to hear that because we know that the data are on our side: the registry makes no one safer. We know that the incidence of sexual offenses has neither stopped nor slowed since the introduction of publishing registries online.

Under Conclusions and Recommendations, ATSA tells us what we already know:

The research to date on SORN has not identified significant reductions in the incidence of sexual abuse or sexual offense recidivism as a result of this policy. This fact leads to the conclusion that SORN, as currently implemented within the United States, does not achieve the intended goals of preventing sexual abuse, protecting society, or effectively managing the risk of individuals convicted of sexual crimes. Current practices additionally have numerous unintended consequences which actually potentially increase, rather than decrease, risk factors for individuals required to register. If the goals of these laws are the prevention of sexual abuse and reducing recidivism risk, meaningful legislative reforms will be required.

If ATSA is paying attention to current research, that has to be good. If only they had stopped there but ATSA continues:

Based upon current knowledge and research, ATSA offers the following recommendations for evidence-based registration reforms:

• Discontinue one-size-fits all approaches for the registration and notification of individuals convicted of sexual crimes;

• Individualize registration and notification requirements based upon empirically validated risk assessment tools and similar methods;

They are correct that one size fits all is not a good approach. Swapping that practice for individual assessments, though, is going to open the door to peddlers of assessment tools and to law enforcement adopting a single assessment tool to evaluate all registrants. Assessments will be used to put people on the registry, not to release them. Am I jumping to conclusions here? Yes, but prove me wrong. In states that use individual assessments, how many people are released from the registry based on those assessments? 

• Develop avenues and criteria for relief from registration which incorporates the desistance literature and recognizes the importance of treatment and supervision interventions for reducing recidivism risk, facilitating desistance and strengthening protective factors;

ATSA notes that housing, employment, and relationships all help with desistance. So why is ATSA not recommending that sex offense registries--the reason registrants have trouble finding housing, employment and building relationships--be ended altogether?

• Limit public community notification practices to the highest risk registrants, decrease broad-based dissemination of registrant information and/or re-establish law enforcement only registration practices coupled with allowing public inquiry about specific individuals;

How do we identify the highest risk registrants? The study used in the ATSA document used the Static 99R to pick them out. This is the same Static 99R that has come under heavy criticism for inadequacies in predicting future risk of an individual and for scoring that doesn't reflect how a person has changed, among other concerns. No matter which assessment tool is used, there is a risk in getting it wrong. When getting it wrong affects a person's liberty interest--will he be stuck on the registry for 15 years or for life?--an inadequate assessment tool cannot be trusted. 

• Remove adjunct policies, such as residence restrictions, from SORN laws as they do not work and are one of the primary drivers for legal challenges. Adjunct policies also undermine protective factors and create unnecessary barriers for community reintegration;

If only the rest of the recommendations were so clearly spoken, right? But if residence restrictions create unnecessary barriers for community reintegration, what does ATSA think the registry itself does? Is there such a thing as necessary barriers to reentry?

• Recognize that a national one-size-fits all approach to SORN laws does not work within the U.S. and allow states to make adjustments to their registries based on individual needs without incurring any financial penalty;

This is a solid recommendation. 

• Utilize registration as part of a larger management scheme for adults convicted of sexual crimes, with greater collaboration and focus on rehabilitative and reintegration efforts;

And we're back to looking at this group of people--those convicted of sex crimes--as people who need management. The group with a very low rate of re-offense is not a group that needs management.

• Enhance SORN information for law enforcement purposes, including steps to ensure the accuracy of the information and strengthening tracking of registrants moving between jurisdictions; and 

Why? Does research show that registrants who move between jurisdictions commit more sex offenses? Ensuring the accuracy of information on a registry will not make it better. If ensuring accuracy means more people are arrested for registry violations, that is not an improvement.

• Strengthen partnerships between law enforcement and sexual offense specific management professionals, including treatment professionals.

Treatment professionals who have strong partnerships with law enforcement are likely to find themselves distrusted by the very group they hope to...to what? What does ATSA hope for? 

Does it want to keep registrants coming back for therapy? Good therapy would be the answer for that, not keeping registrants subject to a regime that mandates therapy provided by therapists (ATSA members?) answerable to probation or parole instead of to the registrants themselves. 

Does ATSA want to keep registrants under the thumb of law enforcement even though re-offense rates are very low? The registry keeps registrants vulnerable to arrest for violating laws that apply only to those on the registry. Does ATSA hope that more registrants will return to prison for forgetting to notify law enforcement that, for example, they bought or sold a car?

Does it want to keep that group under the thumb of law enforcement even though re-offense rates are very low and were very low even before we had registries?

Remember that ATSA said, 

The research to date on SORN has not identified significant reductions in the incidence of sexual abuse or sexual offense recidivism as a result of this policy. This fact leads to the conclusion that SORN, as currently implemented within the United States, does not achieve the intended goals of preventing sexual abuse, protecting society, or effectively managing the risk of individuals convicted of sexual crimes. Current practices additionally have numerous unintended consequences which actually potentially increase, rather than decrease, risk factors for individuals required to register. If the goals of these laws are the prevention of sexual abuse and reducing recidivism risk, meaningful legislative reforms will be required. 

...and yet ATSA wants to keep the registry in place. Why?

ATSA needs courage to do what it recommends: Heed the current research. Keeping the registry in place is not meaningful legislative reform.

Abolish the registry.

In 2013, I wrote about protecting the integrity of psychiatry.

suggestions for comments on the SORNA rule changes

Go here to comment on the changes to the SORNA rules proposed by Attorney General Barr. Comments can be submitted until midnight ET, October 13, 2020. See my earlier analysis of the changes here.

When composing your comments, address the proposed changes specifically. Consider the suggestions below.

1. States vs. Federal Government
The changes will be used to push states into full compliance with SORNA. In our comments, we can respond to the suggestion to bypass state legislatures in the push to increase federal involvement in registry violations. Federal bureaucrats, accountable to no one, should not be able to foist changes on state laws, especially when the new regulations create new ways to deprive people of their liberty.

2. Public Safety
Because the proposal pretends to be concerned about public safety, respond to that. What do these changes have to do with public safety? If the Attorney General used evidence-based studies about the behavior of registrants when writing the new rules, the studies are not mentioned in 93-page document. 

3. Additional Reporting Requirements
The changes would add to the list of items SORNA requires to be reported within three days (remote communication identifiers, temporary lodging--being away from your registered home address for more than seven days, vehicle sale/purchase), so we can respond to that. Remember that for many, if not most, registrants, traveling to the registry office requires taking time off work. If current reporting requirements cause problems for registrants, additional requirements will not help. If current reporting requirements have no effect on public safety and no effect on the incidence of sex crimes, additional requirements will not help.

72.7(e) Reporting of changes in information relating to remote communication identifiers, temporary lodging, and vehicles. A sex offender must report within three business days to his residence jurisdiction (by whatever means the jurisdiction allows) any change in remote communication identifier information, as described in § 72.6(b), temporary lodging information, as described in § 72.6(c)(2), and any change in vehicle information, as described in § 72.6(f).

Reporting those additional items--in any time frame--have nothing to do with public safety and everything to do with controlling a group of people who lead law-abiding lives. 

4. Reasons behind Changing the Rules
Target the reasons for the changes. The reasons come down to because sex offenders might do something (use telephones to lure victims, for example), not because they have evidence that this is something that happens with any frequency. 

The rule governing International Megan's Law uses despicable reasoning like this to justify the DOJ reporting a person's international travel plans to INTERPOL and to other foreign law enforcement agencies: 

... for a sex offender disposed to reoffend, it may be attractive to travel to foreign countries where law enforcement is weaker (or perceived to be weaker), where sexually trafficked children or other vulnerable victims may be more readily available

It is unacceptable for the US government to put US citizens in danger by identifying them as suspect individuals to foreign governments when wild imagination is the only reason to suspect an intended crime. Comment on the awfulness of IML if you'd like but a more effective comment will focus on the specious reasoning throughout the proposed rules change document.

Imagining that people on the registry are plotting to commit more sex crimes does not make it true.

The document is weighted down with paragraph after paragraph explaining why the AG has the authority to impose these rules. Those explanations can be summed up as "we are doing this because we can." Because this court decision said it isn't punishment, the government can do what it wants. Because another court decision said it isn't bad to require email addresses, the government can do what it wants. There is nothing in the proposed rule document that refers to research on the effectiveness of registration. No research was used in building that document other than finding court cases that say the government can do this. 

Watching this process underlines how easily the government can devise new ways to put our liberty at risk. Remember that the next time you think we should put the government in charge of something.

More analysis of the proposed changes:

• Alliance for Constitutional Sex Offense Laws
• Florida Action Committee
• Pennsylvania Association for Rational Sexual Offense Laws

changes proposed for SORNA rules

On Twitter, @CrimeADay estimates that it will take hundreds of years to tweet one federal crime each day. That estimate does not include any additional crimes that are being added and will continue to be added to the federal code.

Today, @CrimeADay has tweeted one federal crime every day for five years. In 1790, it would have taken under a month to count them all at that rate. It's going to take just a little bit longer today, but I'm getting there: pic.twitter.com/rc9i4hxxYH

— A Crime a Day (@CrimeADay) July 18, 2019

Federal government bureaucracies are the powerful but quiet engine behind federal laws. Those bureaucracies can--and do--create laws without going through the arduous legislative process in which our elected Senators and Congressmen serve as our voice. We have no voice in the bureaucratic process except for an opportunity to comment on proposed changes.

You can comment on the proposed SORNA rules changes until midnight ET October 13, 2020. Instructions on that webpage (starting here) provide information about the comment process. It is important to read those instructions before leaving a comment. 

At the time this blogpost was written, only 370 comments had been submitted. Given the nearly million people on sex offense registries across the country and the serious effect these federal rules may have on their states, more comments are necessary. To see the proposed rules as well as current laws, rules and guidelines, the links to resources at the bottom of this post may be helpful.

Registry laws vary from state to state and none of the state laws match SORNA exactly. Some of the registry laws in your state may be better or worse than what SORNA laid out for us but your state laws are still the laws that you need to follow. 

The proposed changes raise questions about why the Attorney General thought it necessary to expand federal rules expressed in 400 words to a much more detailed 3000 words, especially since those federal rules don't apply in the states. 

What problem is the AG trying to solve? Have registrants across the country been committing the lion's share of sex offenses? No. The vast majority of sex offenses are still, as always, committed by people not on the registry. The Attorney General and the Department of Justice know this fact as well as we do, even if they prefer to ignore it and drum up fear of registrants.

To drum up unreasoning fear, proposed changes include crazy talk based on the idea that registrants are some kind of otherworldly monsters:

...because sex offenders may, for example, provide false date of birth information in seeking employment that would provide access to children or other potential victims. (link)

...because sex offenders may, for example, attempt to use false Social Security numbers in seeking employment that would provide access to children or other potential victims. (link)

...addressing the potential use of telephonic communication by sex offenders in efforts to contact or lure potential victims (link)

...because sex offenders may reoffend at locations away from the places in which they have a permanent or long-term presence... (link)

The phrase "public safety" appears 13 times in the 93-page proposal document. If that sounds like the AG is focusing on public safety, consider that the word "authority" appears 77 times.

The phrase "Attorney General" appears 134 times. 

This makes it clear that public safety is but an afterthought. That has always been the case with registry laws. The data show that registration has no effect on public safety, no effect on reducing the incidence of sex crimes, and yet here we are with an AG trying to make registration requirements even more onerous for people who are unlikely to commit another sex offense.

Is the AG trying to encourage states to come into full compliance with SORNA? From the proposed rule changes:

For example, SORNA requires registration based on conviction for child pornography possession offenses, see 34 U.S.C. 20911(7)(G), but some states that have not fully implemented SORNA's requirements in their registration programs may be unwilling to register a sex offender on the basis of such an offense. Section 2250(c)'s excuse of the failure to register terminates if the state subsequently becomes willing to register the sex offender, because the circumstance preventing compliance with SORNA no longer exists. 

In this passage, notice the sly suggestion that a state can become willing to register someone for a SORNA requirement even if the state doesn't have the same requirement. If that sounds underhanded to you, that's because it is. Providing a 'roundabout way to lay failure-to-register traps for registrants who are unaware of federal requirements is not a plan that comes from concern for public safety. Failure to register laws have nothing to do with public safety.

Is the AG trying to lay out a plan for larger federal involvement in failure-to-register cases? From the proposed rule changes:

The rule will facilitate enforcement of SORNA's registration requirements through prosecution of non-compliant sex offenders under 18 U.S.C. 2250.

See the list of qualifying convictions according to the 2017 Legal Analysis of 18 U.S.C. §2250 (Failure to Register as a Sex Offender) provided by the Congressional Research Service.

Is the AG outlining a defense against future legal challenges to registry law? The proposed rules are veritably stuffed with explanations about how the AG has the authority to make and change the rules.

What kind of comment will be useful? Comments that demand the registry be shut down (a sensible demand for another day) will be ignored because the proposed rule changes do not control the existence of the registry. Comments that include specifics about a person's case and complaints of unfairness will be ignored because they are not requesting information about case details.

Starting on page 62 of the current SORNA Guidelines, you can read a summary of comments that were submitted in 2008 before those Guidelines were published. As you read that summary, you will start to see how comments are understood and why some are ignored and some result in change. To give you an idea of what will be needed for them to understand reasonable objections to the proposed changes, read the beginning of the summary:

Approximately 275 comments were received on the proposed guidelines. The Department of Justice appreciates the interest and insight reflected in the many submissions and communications, and has considered them carefully. In general, the comments did not show a need to change the overall character of the guidelines, but in some areas the commenters provided persuasive reasons to change the proposed guidelines’ treatment of significant issues, or pointed to a need to provide further clarification about them. 

The initial portion of this summary reviews the most significant and most common issues raised in the comments, and identifies changes made in the final guidelines relating to these issues. The remainder of the summary thereafter runs through the provisions of the guidelines in the order in which they appear, and discusses in greater detail the comments on each topical area in the guidelines and changes made (or not made) on the basis of public comments

They will pay attention to persuasive reasons related to the changes the Attorney General wants to make. We need to show a need. 

The rules open the door to new reporting requirements for people who consistently demonstrate they are unlikely to commit a new sex offense. Why the Attorney General wants to flex his muscles to make life more difficult for law-abiding people is a mystery.

Eternal vigilance is the price of liberty is a quote often (wrongly?) attributed to Thomas Jefferson.

When it comes to life on the registry, eternal vigilance is exactly what is necessary, especially when Congress routinely turns regulatory authority over to bureaucrats who answer to no one. Bureaucrats thrive on power.

Your comment on the proposed rule changes is vital. 

Resources to help you sort out what the changes will do:

• Proposed changes to the rules  
• The federal Sex Offender Registration and Notification Act (SORNA) 
• The current SORNA rules, published by the DOJ. 
• SORNA Guidelines from the SMART office
• This document shows how the proposed rules will change existing rules.  

Also see my additional suggestions for comments for the SORNA rule changes.

Christianity Today wonders if churches should welcome registrants

Megan Fowler, in a Christianity Today article titled, Sex Offenders Can Find Hope in Christ But Not Necessarily a Place at Church, begins: 

Churches that suspended in-person gatherings during the pandemic have pledged not to welcome their congregations back until they’re sure they can be safe.

The pandemic is on the minds of everyone who wants to return to in-person worship but that is not what she wants to talk about. Not at all.

While the risk of coronavirus spread is the major concern right now, LifeWay Christian Resources is urging leaders to use their reopening plans as a chance to also revisit their policies to prevent sexual abuse.  

Who is LifeWay Christian Resources? Why do they want churches to look again at sexual abuse policies? Why now? Good questions.

Fowler tells the story of a church that makes sure to "pay attention to new faces." That sounds friendly, doesn't it? They noticed a new face, learned his name, looked him up and found him on the registry.

The church had a plan in place for cases like his, developed based on conversations with the local alderman, police officials, and other church leaders. Tony Silker, an associate pastor at the Christian and Missionary Alliance congregation, had a conversation with the man on his next visit, explaining what they found. Silker said he could not return; if he did, the staff would call the police. [My emphasis...but the church seems happy to emphasize this, too.]

So much for "friendly." 

Silker gave the man information about another church in the neighborhood that ministers to people struggling with sexual addiction and urged him to get the support he needed.

The staff at Family Empowerment Center are trained to interact with registered sex offenders because they expect sex offenders to enter their church.

Remember that interact with means to tell them not to come back to church. 

The church works with the homeless and other vulnerable populations in the high-crime crevices of the neighborhood.

Does the church leadership ever wonder why they regularly find registrants among the homeless? Do they realize that government statutes and ordinances are what drive registrants into homelessness? Do they care enough to demand changes so that this vulnerable population--a population they seem to pay attention to--can find decent housing? 

Fowler writes:

Boz Tchividjian, a lawyer and the founder of Godly Response to Abuse in a Christian Environment (GRACE), suggests obtaining the offender’s court file, talking to the parole officer assigned to the case, and verifying whatever the sex offender tells the church leadership.

Not just a lawyer; a former prosecutor. (I wrote about him and his advice here.) 

The Godly Response not to Abuse in a Christian Environment but to someone who wants to attend church is to obtain the court file...just like Jesus always did?

Tchividjian said the way sex offenders talk about the crimes they committed can reveal the state of their heart and if they are ready to participate in worship or ministry.

“If they marginalize and minimize their behavior, [the sex offender is] not in a position to even be served,” he said.

Not even to be served? Oh, my God. They know not what they do.

“If you get to the point where the person is sorry and an open book, that’s a different story. They are teachable.”

They are teachable...as long as they talk about their past in a way that is acceptable to someone who insists on ignoring all the evidence that people on the registry rarely reoffend with another sex offense.

The Christianity Today article has more stories about churches who turn away registrants. Fowler quotes Rob Showers, a church law advisor for a different CT publication:

“Only the churches that can delve in and get good legal counsel that walks through this should undertake it,” Showers said. “It’s a wonderful ministry that can go wrong in so many ways.”

Boy, isn't that the truth? Reaching out to people yearning for connection with church is a wonderful ministry. The part that goes wrong in so many ways is the refusal of churches to look at the wealth of research available that could help them welcome people to their congregation.

If Megan Fowler had done just the tiniest bit of research, she would have found that people on the registry are not the ones committing sex crimes in churches. No, those crimes are committed by people who are not on the registry. Are there exceptions? Of course. Those are the stories that make the big headlines precisely because they are so rare.

The other part that goes wrong in so many ways is illustrated by Fowler's article: lots and lots of talk about keeping registrants away from church but not a word about preventing sexual abuse.

By focusing on registrants, attention is taken away from those people who are molesting or assaulting people. 

Oh, yes...those questions about LifeWay. Who are they and what is their interest?

LifeWay sells background checks. They sell a lot of background checks, according to their own website:

From 2009 to 2019, more than 20,000 customers have conducted more than 416,000 screenings through the program, according to Jennie Morris of LifeWay. “On average, we add 150 customers a month,” she said.

Businesses across the country are permanently closing because the pandemic has reduced their business so drastically. The pandemic probably has a similar effect on a business that sells background checks to churches at a time when churches are no longer meeting in person.

A good guess is that LifeWay is tired of losing business and is spreading fear of people sexually abusing kids at church, now that churches are beginning to open up again. 

While child sexual abuse at churches and schools has certainly been reduced by eliminating in-person activities, sexual abuse is still occurring where it has always occurred most often: in the home. 

__________

I have written previously about how churches treat people on the sex offender registry:

March 29, 2017 - advice about how a church should treat registered citizens

November 25, 2016 - what's the harm in a background check?

October 6, 2016 - who does Jesus look like?

August 26, 2015 - arrested for attending church

February 4, 2015 - "...we don't ever see Jesus rejecting. Ever."

August 7, 2014 - how a congregation should respond to sex offenders among them

August 6, 2014 - a church welcomes registered sex offenders

October 18, 2013 - persecution leads to suicides

added--a list of resources

Notes from the Handbasket now offers a list of resources that may be useful to those traversing the rough territory of the registry. On your mobile device, click the arrow to the right of Home and select NEW! Resources, an Incomplete List. On your computer, under Pages to the right, click the Resources link.

As the page title says, this is an incomplete list. You are welcome to add other resources in the comments below or in the comments for the Resources page.

Black Lives Matter

Black lives matter. Absolutely. People of color are disproportionately represented at all phases of the criminal justice system: interactions with law enforcement, arrests, jail, prison, probation and parole. Recognizing that truth ought to lead us to make changes that will result in fair, proportional treatment.

We’ve known that truth for decades and yet here we are, mourning another death of another black man at the hands of police.

So why have we not seen reforms?

The simplistic response is to blame racism but racism alone doesn’t make it possible for cops to kill a man in broad daylight, with the death recorded and seen around the world, and not face consequences. 

Racism with power is the explanation.

Without the power to act with impunity, law enforcement officers would be much less likely to treat people with such aggression and hostility. The racists we encounter in our daily lives--neighbors, co-workers, family--are extremely unlikely to kill someone just because of skin color. Racism can show itself in other damaging ways but most racists cannot kill without being held accountable.

Law enforcement officers can. What gives them that power? The doctrine of qualified immunity, for one.

An article in The Appeal explains:

That doctrine has become one of the chief ways in which law enforcement avoids accountability for misconduct and…even proven constitutional violations. Ordinary people—whether they’re doctors, lawyers, or construction workers—are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.

Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year.

Qualified immunity permits law enforcement and other government officials to violate people’s constitutional rights with virtual impunity. Today, we hear about police shooting after police shooting where officers are rarely if ever held accountable by the criminal legal system, either because prosecutors decline to charge, because grand juries decline to indict, or because juries decline to convict.

In Minneapolis, the four police officers involved in George Floyd's death were all fired the same day Floyd was killed. At first glance, that looks like progress...a police department that has had enough of overly aggressive cops.

History, though, shows us that firing bad cops is not a sure thing.

In Omaha NE, June 2017, Zachary BearHeels, in the midst of a mental health crisis, was tasered a dozen times by one of the police officers who were called to help him. Another officer punched BearHeels 13 times in 15 seconds. Bearheels died after those assaults. 

There was video, and Omaha Police Chief Todd Schmaderer fired the four cops involved in BearHeels' death. The city breathed a sigh of relief and gratitude that Schmaderer saw things clearly.

Three years later? Three of those cops are back on the force, thanks to efforts by the Omaha Police Officers’ Association, the police union. The Omaha World-Herald reports,

All three will receive back pay since they were fired, minus any income they may have earned in that time, in den Bosch said. Those amounts have not been calculated yet. McClarty’s payment will have 20 days — the length of the suspension period imposed by the arbitrators — taken out of his back pay.

In a statement, Schmaderer said it is time to move forward.

“Omaha police officers have a very difficult job and my focus is on keeping my officers safe in the coronavirus environment while simultaneously protecting the city,” he said.

Tony Conner, the president of the police union, said the process was fair and that “every American citizen has the right to due process, including any police officer.”

In addition to qualified immunity, law enforcement officers have powerful unions to protect their jobs. In a USA Today opinion piece, former union official Benjamin Sachs explains:

Among the many outrages in the death of George Floyd is this one: Derek Chauvin, the police officer who killed Floyd, had been the subject of at least 17 misconduct complaints and yet he remained an armed member of the Minneapolis Police Department. How does that happen? Part of the answer is the collective bargaining agreement reached between the police department and Chauvin’s union.

Like other such police agreements, the one in Minneapolis gives cops extraordinary protection from discipline for violent conduct. It mandates a 48-hour waiting period before any officer accused of such conduct can be interviewed, a common delay and a luxury not afforded even to criminal suspects and one that allows officers time to develop a strategy to avoid accountability.

Like many police contracts, including those in Baltimore, Chicago and Washington, D.C., the Minneapolis agreement also requires the expungement of police disciplinary records after a certain amount of time.

When people call for an end to police unions or a limit to their bargaining power, this is why.

There are other elements that lead to overly aggressive and violent policing, including the militarization of America's police as detailed in the Radley Balko book, The Rise of the Warrior Cop. Look at the armored vehicles used against protesters in the current demonstrations and riots across the country. Look at the riot gear. Look at how those military tools are used against young protesters.

Something is wrong with policing in this country. Police assume a warrior attitude of cops vs citizen, even though they are sworn to protect and serve the community.

Until we make changes that will hold law enforcement officers accountable to their communities, the vulnerable in our communities will pay for our lack of will to push for change.

The cry to "defund the police" is one that puzzles some people--generally people who work from the assumption that the cops are here to deal with criminals for us. Defunding police departments--or reducing the law enforcement budget--would  force those departments to rework their priorities. Can they do more with less? Can they do without spending money on ever more advanced riot gear? Can they operate without flashy surveillance equipment? 

The combination of over-criminalization and over-policing is not found in every neighborhood. Some of us live where police officers come to the block party carrying beer. Others live where cops cruise the neighborhood waiting to arrest someone. Big difference.

Until people can see that some communities suffer from over-policing, they will continue to think that those communities have more criminals and that's why so many of those families have a loved one who is incarcerated. 

And that is where racism shows up: the willingness to believe that people of that race or that neighborhood are inherently worse than we are. 

When the power of the state is brought to bear against an individual like George Floyd, a list of people convicted of a certain category of crime, a neighborhood or a demonstration, we had better make sure that we have a way to fight that power. When the state puts policies in place that prevent us from holding the state--law enforcement--responsible for its crimes and misdeeds, the power of the state is magnified. Magnified power is hard to destroy.

We must demand change to reduce that power.

Yes. Black lives matter. They matter enough this time to cause riots. Are we listening? Are we watching? Are we demanding changes that will decrease the power of law enforcement? 

 

Omaha registrant murdered

Edited May 23. After a conversation in which I was critical of people jumping to conclusions when, really, very little is known in the Condoluci case, I went back to check my own earlier assumptions. In this blog post, I wrote as if I knew for sure that Fairbanks had written the email even though I don't know that for a fact.

Every defendant is presumed innocent until proven guilty. Those of us who have seen the criminal justice system in action understand clearly that mistakes are made too frequently for comfort. We must demand a scrupulous adherence to due process in this case because that is what we would demand for ourselves.

I left the blog post as originally written, with this note to explain my error. I did change the title from Omaha man murdered because he was on the registry to Omaha registrant murdered.

***

This is a big story, not just because reporters must love having something other than the coronavirus to talk about, but because it illuminates the truth about the sex offense registry: It puts registrants and their families in danger and protects no one. It didn't protect Matt Condoluci's 5-year-old victim because Condoluci was not on the registry when he committed that 1994 crime. It didn't protect another victim when Condoluci was on the registry in 2007.

You know who else it didn't protect? Matt Condoluci. From everything we think we know now, he was murdered because he was listed on the registry.

I'm going to recap (with links!) for people who were listening to great music or reading a book instead of following the news over the last couple of days.

Saturday, May 16, 64-year-old Matt Condoluci's body was found at his home at 43rd and Pinkney Street in Omaha NE. Monday, we learned that someone had emailed news outlets claiming to have killed Condoluci because he learned that Condoluci was on the sex offense registry for raping children.

https://www.ketv.com/article/anonymous-e-mailer-claims-to-have-killed-convicted-sex-offender-found-shot-dead-in-omaha/32587366 

Tuesday, James Fairbanks turned himself in to the police for the murder and stories started flying. Fairbanks' ex-wife said he confessed to her that he had done it; she said he is such a great guy, even the part about him murdering a stranger isn't too bad.
https://www.ketv.com/article/ex-wife-says-suspect-told-her-he-killed-sex-offender-calls-him-protector-who-cared-for-victimized-kids/32598125

The ex-wife, Kelly Tamayo, a psychologist, explained that in Fairbanks' work as a corrections officer, he...

...may have been driven to kill by working with pedophiles while he was employed by the prison system. ... I think he reflected on his experiences working with them as just bothersome and upsetting because they are repeat offenders, we know them to be people who, you know, who repeatedly act out their intent or they act on their wishes that are to harm children." https://metro.co.uk/2020/05/19/vigilante-shot-child-sex-predator-dead-saw-leering-children-12729140 

To be fair, Tamayo's work is in weight loss and  mental fitness, not in therapy for those who committed sex offenses. She ought to be forgiven for not knowing that repeat offenses are very rare among those on the registry.

Condoluci's daughter was interviewed and she said kids are safer now that her dad is dead.

https://www.kearneyhub.com/news/state/omaha-police-make-arrest-in-homicide-of-convicted-sex-offender/article_e65fe0d9-d2e8-511c-9be8-f2a875a4f206.html 

Reporters did a little work and found that Fairbanks' ex-wife who gave such a glowing report of him had actually taken out two protection orders on him while they were going through a divorce. There is also a report of him threatening to kill a family friend.

https://www.omaha.com/news/crime/ex-wife-omaha-man-arrested-in-killing-of-registered-sex-offender-fearful-man-would-offend/article_ca281537-18e6-5e9f-8bd6-3cee4499b939.html

Reporters also found Condoluci's son, who said his dad's crimes were a long time ago and his dad had changed since then. He said that Fairbanks didn't know his dad and his dad should not have died the way he did.

https://www.ketv.com/article/i-thought-it-was-all-a-dream-omaha-schools-employee-accused-of-killing-sex-offender/32603770 

In his confession [see my May 23 note above] as represented on the Omaha Scanner webpage, Fairbanks said he "stumbled across" Condoluci's registry information; he agonized about it for days, and came back to kill him. He said he agonized because Condoluci was a child rapist. Never mind that the registry did not report any rape convictions for Condoluci.

https://www.nossmedia.com/post/man-on-omaha-scanner-facebook-page-claims-to-be-killer-in-north-omaha-homicide?fbclid=IwAR2sLnXE78WqFvqC6o0uQBvIEkI3KjTm13fWaqRQUdTxn0XGYSfQ7To6Eu0  

Fairbanks goes on to say that he "researched him more" and learned that Condoluci had molested kids in several states. Then he mentions the mother of the 1994 victim and her Facebook group dedicated to letting the world know that Condoluci was a bad, bad man. In a post in the Facebook group, she says, "This preditor preys on single mother's to get his hands on her children. He moves from state to state. He must be stopped." 

https://www.nossmedia.com/post/man-on-omaha-scanner-facebook-page-claims-to-be-killer-in-north-omaha-homicide?fbclid=IwAR2sLnXE78WqFvqC6o0uQBvIEkI3KjTm13fWaqRQUdTxn0XGYSfQ7To6Eu0 

The Facebook group was called Matt Condoluci (preditor). 

At least, that is what it was called until she renamed it Free James Fairbanks today.

She seems to feel quite strongly about James Fairbanks. On the Free James Fairbanks Facebook page, she says,

I do not believe James was acting as a vigilante. I believe he had seen enough of the wreckage sexual abuse causes and may have felt helpless and "snapped" when he saw what he saw. He is as much a victim as my son and the other children he is not a vigilante. I don't know him but from what I am seening of him he is a good man and may be suffering from PTSD though I'm not a Dr. This man deserves our support. 

This mother endured the death of her son (the 1994 victim) from a drug overdose in 2017 and held Condoluci responsible for that death because of the early molestation. We can certainly sympathize with any parent who endures the death of a child.

Perhaps the fact that both her son and Fairbanks were corrections officers has something to do with her strong support of a man she never met. Perhaps it was just that she wanted Condoluci dead and Fairbanks made that happen. Who knows?

It is surprising that in the area where Fairbanks was looking for an apartment, 96 registrants live within a one mile radius around Condoluci's home, yet Fairbanks picks out the one guy who has a Facebook group dedicated to calling him out as a child molester. 

This story has many twists in it and the news media is making the most of it. News reports love to show the playground equipment in Condoluci's backyard as if it says anything about the man's intentions...as if none of us have rented a home with something in the backyard that is more trouble to move than to leave in place. They like to repeat Fairbanks' fantasy about what Condoluci was thinking while he watched children play. 

They like to explore Condoluci's criminal background as if it has any bearing on why he was murdered by a stranger.

Under all the twists and the lurid imaginings, though, is the truth:
The registry was used to target a law-abiding man for murder.

It is beyond time to acknowledge what the registry does--put people in danger--and abolish the registry.

County Attorney has a chance to slow the spread of the coronavirus

Nebraska's Douglas County Prosecutor's office is faced with the opportunity to model good public health practices.

From a March 30 KETV story:

A prosecutor in the Douglas County Attorney's Office has tested positive for COVID-19, according to Douglas County Attorney Don Kleine....

Friday, the prosecutor got a call ... saying someone he was working closely with had tested positive. [The prosecutor] been at work for more than a week. Kleine said the prosecutor had contact with at least 25 people in the office. He'd also been in courtrooms on nearly every floor of the courthouse. 

"Defense attorneys, bailiffs, judges, even defendants that might have been in the courtroom while he was there are all being notified,” Kleine said.

Even defendants. Um...thanks for noticing?

March 12, the Nebraska Supreme Court Chief Justice announced  that courts will continue to operate as usual and even though Governor Ricketts limited gatherings to ten or fewer, courts were excluded from the 10-person limit.

From an Omaha World-Herald article:

Courthouse crowds became more sparse as presiding judges of a few counties, including Douglas, imposed more restrictions than the chief justice had, delaying jury trials and encouraging attorneys and litigants to either delay hearings or appear by video or teleconference. 

Even so, the Douglas County Courthouse, while quiet by normal standards, has been brimming with dozens of attorneys, litigants, clerks, sheriff’s deputies and security personnel who have to check all courthouse-goers. 

Sounds like a great way to spread the coronavirus.

Crowds, small or large, at a courthouse are not a static group. People come in and out of the courthouse all day. Some leave to go home, others are taken to prison or jail. The comings and goings are excellent vectors for the virus.

An assisted living facility in nearby Blair NE closed for a deep cleaning after ten residents tested positive for the virus, reminding us how easily the virus spreads in environments where people are close together.

Like the courthouse. Like jails and prisons.

The World-Herald continues,

“When it starts hitting close to home, it really makes a difference,” Kleine said. “We’re obviously thinking of him. And we’re going to work with the Health Department to track every place that he’s been in the courthouse as we try to make sure everyone’s fears are allayed.”

But will he delay prosecutions to make sure everyone's fears are allayed? Or will he continue to require people to appear at the courthouse?

Will he continue to send people to prison? Remember how quickly the virus spread among the residents at the Blair assisted living facility and think how much more quickly it would spread in Nebraska's overcrowded prisons.

That's the big question. Did Douglas County Attorney Kleine learn enough when it started hitting close to home?

Is his home confined to the prosecutor's office or is his home the community?

Sex Offense Litigation and Policy Resource Center statement on COVID-19

The Offense Litigation and Policy Resource Center (SOLPRC) at Mitchell Hamline School of Law issued a statement March 28 about sex offense registries at a time when social distancing is essential to slow the spread of COVID-19.

The information in this statement can be used to craft your own letter to your governor, attorney general, legislators, law enforcement agencies--anyone who needs to understand the issues here.

From the statement:

Suspend in-person registration requirements. Registration requires frequent in-person visits to police stations or jails, where dozens of people commonly congregate in waiting rooms or bullpens, multiplying the risk of transmission of COVID-19. Following the lead of Oregon and other jurisdictions, this process should be modified. 

People on the registry are not immune to this virus. If they contract the virus because of registry laws, they will carry the virus everywhere they go, no matter how clear the need is to employ social distancing, no matter how badly registrants themselves want to avoid contracting or carrying the virus.

Waive or suspend housing banishment laws and other housing restrictions. People experiencing homelessness need emergency housing in order to comply with stay-at-home orders or self-quarantine. But many people listed on “homeless registries” have places they could otherwise reside: housing restrictions alone caused their homelessness. Likewise, prisons have backlogs of people incarcerated past their release dates, or who would be released on parole or probation supervision, if so much housing were not barred. Suspending these restrictions will allow cities to house people more efficiently, conserve emergency beds, and give prison officials the flexibility to place people in homes they already have available. This will protect their populations from the heightened risk of contagion created by needless incarceration and homeless encampments when there are safe available homes for people on the registries. 

Using the imagined danger of registrants living too close to children, legislators passed laws forbidding registrants from living in some areas. Those laws create a disadvantage for the whole community, keeping shelters full when there is a need to put more people in homeless shelters--during bitter winter storms, blazing summer heat, or when it is necessary to slow the spread of a virus. Legislators created this problem.

Waive or suspend arrests and prosecutions for failure-to-comply offenses. “Failure to comply” charges are the result of a missed deadline to reregister or update registration. Akin to technical parole violations, these are often hyper-technicalities that stem from the difficulty of following so many onerous reporting requirements, and have no reported correlation to public safety. Despite this, they contribute to jail and prison churn, risking increased transmission of the virus.

When over-incarceration is clearly something that burdens the United States, incarcerating people because they did not report to law enforcement that their address and employment and vehicles have not changed is ridiculous. At a time when the world is trying to slow the spread of a new virus, is is dangerous to add to overcrowded prisons.

Suspend fees for registration. Economists are projecting 14%-20% GDP contraction for this quarter and unemployment in double-digit rates. Many people have already lost their incomes as a result of the shutdowns. People with past convictions are far more likely to be poor, with reduced job prospects. Non-payment of these fees can result in failure-to-comply charges; during this crisis registration fees should be suspended.

Siphoning money from the pockets of the poor is outrageous. When the response to that statement is that those people committed sex crimes so they deserve it, it becomes abundantly clear--again--that the registry is commonly considered to be punishment, no matter how often courts deny that fact.

Suspend in-person address verifications. Routine police visits to the addresses of people listed on registries, for the sole purpose of an address check, should be suspended. These visits are widespread, and number in the tens of thousands. At a time when even 911 calls are under stress, law enforcement should be able to redirect their resources as needed. 

Sending cops door-to-door to make sure registrants live where they claim to live is a bizarre choice even when there is no threat of carrying a new virus door-to-door. When these compliance checks make headlines in the evening news broadcast, look around to see if there is a reason law enforcement agencies are trying to look pro-active. Using law-abiding people as props in an attempt to buff up the image of law enforcement or the tough-on-crime image of and elected official is despicable.

Suspend Internet access restrictions. Some people who are on probation or parole are forbidden from accessing wide swaths of the Internet, and some states have laws limiting Internet access for people listed on a conviction registry. During this crisis, access to the Internet has become even more critical: nearly everyone must rely on Internet access for work, news, homeschooling, services, and family connections. Individual safety, as well as public health compliance, requires timely online access to crucial information about social and health services, as well as access to medical services that are moving online. 

Because news about the virus and public health recommendations can change so quickly, no one should be forbidden to stay current with news and health guidance.

“Step down” people in civil commitment. More than 6,000 people are locked post-sentence in prison-like state civil commitment facilities, that pose the same coronavirus dangers to staff and detainees as jails and prisons. States should speed up “step-down” procedures and move people into supervised community settings.

People in civil commitment facilities have lost their liberty without due process. To leave them where they are essentially defenseless against a fast-spreading illness is cruel.

The registry does not protect anyone and it puts registrants and their families at risk of public humiliation, increased contact with law enforcement, and now, COVID-19. Write to anyone who can influence how registry laws are implemented and let them know the many reasons they should make changes during emergencies.

If you quote from the SOLPRC statement, make sure to include a link to the statement itself (https://mitchellhamline.edu/sex-offense-litigation-policy/wp-content/uploads/sites/61/2020/03/SOLPRC-COVID-19-Guidance-March-28-1.pdf).

reducing the spread of COVID-19 in federal prisons

Attorney General William Barr in a press conference and an interview with ABC News, talked about the fears of COVID-19 spreading inside federal prisons. The fears are warranted. We have already seen the virus moving quickly through other closely-housed populations such as nursing homes.

"You want to make sure that our institutions don't become petri dishes and it spreads rapidly through a particular institution," Barr said on Thursday. "But we have the protocols that are designed to stop it and we are using all the tools we have to protect the inmates."

Having "all the protocols" is meant to reassure us that the Bureau of Prisons is on top of this threat to community health. Are prison staff and their families are reassured by that? The unions for correctional officers are worried.

ABC News continues:

He added that "one of the those tools will be identifying vulnerable prisoners who would make more sense to allow to go home to finish their confinement."

Home confinement for vulnerable prisoners does make sense. The BOP already has a way to release those who are elderly or have a terminal illness: compassionate release. Why not release inmates to their families and reduce the prison population, slowing the spread of the virus?

Barr said that of the 146,000 inmates currently serving time in federal prison facilities, one third are believed to have pre-existing medical conditions and roughly 10,000 are over the age of 60 years old.

Would the BOP actually release 10,000 inmates? Until the 2018 First Step Act increased the number to around 100, an average of a dozen inmates were granted compassionate release each year, so it doesn't seem likely.

ABC News:

...Barr stressed that there would be significant limits on what would make prisoners eligible for release to home confinement, noting that they could not be convicted of violent crimes or sex offenses -- which makes up roughly 40% of the over-60 population.

What is he doing here? Is he talking about reducing the spread of the virus or not? The virus spreads as easily to those convicted of violent crimes or sex offenses, and just as easily from those people to the prison staff and back out to the community.

In response to some local and state prisons across the U.S. who have opted to release inmates in prisons and jails in large numbers, Barr said he was concerned about those using the coronavirus simply as a vehicle to de-populate prisons around the U.S.

He isn't talking about the virus here. He responds to questions about the virus by talking about protecting the prison system.

In the meantime, we continue paying to incarcerate 146,000 people in federal prison, including the increasing costs of health care for elderly inmates.

Only time will tell.