December 27, 2004
Viewing of Publicly-Accessible Government Web Site Criminalized for Sex Offenders.
A couple weeks ago, Cal. Attorney General Bill Lockyer announced the unveiling of the Megan's Law sex offender locator site.
AB 488, as the AG notes, authorized putting photos, home addresses, and partial criminal histories on the Web for the more serious sex offenders. (It was signed by the governor on Sept. 24.) The merits of posting all of this information is debatable. Vigilante-ism comes to mind. The proponents of the bill pointed to an AG report that, as of 2000, "since Megan's Law has been implemented in California, 'there have only been two minor 'vigilante' acts against sex offenders resulting from Megan's Law disclosures reported to the Department of Justice by law enforcement." Of course, now that the information is freely available on the Web and the vigilante doesn't have to call a 900-number or visit the police department, that may change. Anyway, that's not the point of this post. Read on.
AB 488, did other things, including creating new crimes related to misuse of the sex-offender locator Web site. One of those new crimes is subdivision (i) of section 290.46 of the Penal Code, which makes it a misdemeanor for any sex offender registrant to access the Megan's Law Web site:
(i) Any person who is required to register pursuant to Section 290 who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.
Notice that the new crime applies to all sex offender registrants, not just those on the Web site. That means those convicted of such minor crimes as misdemeanor indecent exposure or sexual battery can't access the Web site, even if they committed their crimes many years ago and have never re-offended.
So what's the problem with the new crime? 1. Sex offenders, believe it or not, are people too and they might have children and might want to see where the sexual predators live in their neighborhood. (I realize that might not be sympathy for this position, but think about the teenaged flasher, now grown up, with a clean adult record, kids of his own, etc.) 2. Registrants might want to know whether they are actually on the Web site (I'm assuming the DOJ duty to notify won't be perfect), so they can exercise the necessary caution to protect themselves from vigilantes. 3. Registrants might want to know whether the DOJ has accurate information about them. There's hardly an easier way of checking if their registration is current than looking on the Web. 4. The bill allows registrants to apply to be removed from the Web site. Shouldn't they be able to confirm that they are on the site and see what the site looks like before they apply to be removed?
5. Last, but not least: This is government information which the government is making available to the general public. The government needs a real good reason if it's going to bar one class of citizens from viewing publicly available information. But the value of this new crime is lost on me. Are we worried about sex-offenders who also happen to be hackers are going to delete their entries? They can do that from the Web site and it's already a crime to hack the AG's server. Are we worried about sex offenders learning they're on the list? The bill requires that the DOJ notify sex offenders of their inclusion on the Web site. Do we want sex offenders to be unprepared for vigilantes? I hope not.
Any thoughts from First Amendment experts?
(Note: An earlier version of the bill actually required that "A person visiting the Web site shall be required to enter his or her name and indicate that he or she is not a registered sex offender ....")
Posted by Jonathan Soglin at 09:40 PM | Permalink
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Comments
In addition to an implicit right in the first amendment to be able to receive information (Free speech = freedom to obtain information) it seems to me that this is a scary commentary on "due process." Granted, the incoming head of the DOJ, Alberto Gonzales, is not an advocate of strong 4th amendment rights (he did write the memo sanctioning torture of Guantanamo Bay inmates and was Governor G.W. Bush's guy when it came to allowing executions after all). Yet, whether or not due process rights apply to post-conviction activities, certainly an individual potentially on the list has the right to know he there.
I have a hard time advocating against Megan's list. It has so many great implications. However, California's sex offender registration laws have been on the books for decades, since gay men were being prosecuted for simply walking down the street.
Posted by: Toby | Dec 27, 2004 11:48:19 AM
Good post, Jonathan. As a sometime First Amendment lawyer, I agree with you that subdivision (i) of Penal Code section 290.46 is highly suspect. It interferes with freedom of information for a certain class of persons.
I haven't read the legislative history, but my guess is that, if the provision were challenged, the State would assert that its purpose is to prevent sex offenders from finding each other and forming clubs (such as NAMBLA). And my further guess is that this would not fly with the appellate courts.
I'd be happy for an opportunity to go to bat on this one, but since it's a misdemeanor and I take only felony appeals, it probably won't happen.
(By the way, I notice that the posting clock is eight hours fast. I'm actually posting this on Sunday, 1/2/05 at 4:46 PM.)
Posted by: Marty Kassman | Jan 2, 2005 4:46:33 PM
Hmm. Well, I guess the "posting clock" problem only happens when one is previewing one's post. Right now, once again, the preview shows that I'm going to post this on January 3, 2005 at 12:48 AM. It's actually eight hours earlier.
Posted by: Marty Kassman | Jan 2, 2005 4:49:27 PM
There are many problems with the stricter and stricter 290 code. Those who plead guilty through plea bargain suffer the equivalent have having a balloon payment added to a mortgage though not in the contract. Where else in contract law can a contract tip to one side of the parties so drastically?
And what of the offender who fails to register, and risks a felony conviction, only because he/she has been doing well for years and years and feels the law too draconian and destructive to their progress and now rightfully rehabilitated reputation? This would be especially unconscionable in the case of one who may have won at trial but pled guilty thinking they could leave the past behind. They would have every right to protest the law. And even if guilty and the plea bargain was fair, the defendant may no longer think it fair and might not have pled guilty if the future of the 290 law were known.
If the registration law actually protected potential victims, did not impose a falsely pessimistic view of rehabilitation, and was not applied after the fact, maybe it would be fair and socially acceptable. Not to mention those offenses that can be removed on request are no less serious than some that cannot be removed, hence, an equal protection argument.
More to the point, how many children were actually saved in the almost 50 years of the California 290 law? Any? And what is that number compared to the hopelessness some offenders may experience because they become convinced rehabilitation is impossible, and they then re-offended because they have nothing to lose when they believe the state's pessimism? That would be the offender's responsibility and he/she would deserve any sentence imposed, but that does not help the victim after the fact.
Posted by: Anonymous | Jan 26, 2005 5:12:03 PM
A certain class of person is asked to wear a scarlett letter around with them everyday. And the public who has been led to fear of these so called "monsters," are now forming groups to follow these persons around from place to place because of information obtained via a website. I am a registered pc 290 in the state of California whose was harrassed out of my institution of highly learning as well as my job, because the law leaves open the loophole to allow this sort of harrassment on an individual at all times of the day
Posted by: Norm Johnson | Jan 31, 2005 11:11:28 AM
I too am a PC 290 registrant and deeply regret that I am not eloquent enough to properly convey the level of frustration and anger I have regarding DOJ's web site and the way it has impacted my family. Despite having a single crime and enjoying 10 years of a successful, wonderful life in the real world, the DOJ makes no attempt discriminate between those with a greater potential to reoffend and those whose crimes might have been a one-off.
In order to avoid the site, I moved out of state while my lawyer tries does what he can to alter the requirements for me to register.
Each state is state ha sor wil have some version of the Meagan's law site, but each will be redundant as soon as H.R. 95, Dru's Law, makes it's way into law and a national web site is launched.
I sure miss the good old days when all I had to do was visit the local police station on my birthday each year.
Short of moving to Belize, what can be done to avoid being on these web sites and live normal lives?
Posted by: Octavius Winslow | Feb 18, 2005 4:27:19 PM
I too am a PC 290 registrant and deeply regret that I am not eloquent enough to properly convey the level of frustration and anger I have regarding DOJ's web site and the way it has impacted my family. Despite having a single crime and enjoying 10 years of a successful, wonderful life in the real world, the DOJ makes no attempt discriminate between those with a greater potential to re-offend and those whose crimes might have been a one-off.
In order to avoid the site, I moved out of state while my lawyer tries does what he can to alter the requirements for me to register.
Each state is state has, or will have, some version of a Meagan's law site, but each will be redundant as soon as H.R. 95, Dru's Law, makes it's way into law and a national web site is launched.
I sure miss the good old days when all I had to do was visit the local police station on my birthday each year.
Short of moving to Belize, what can be done to avoid being on these web sites and live normal lives?
Posted by: Octavius Winslow | Feb 18, 2005 4:28:52 PM
I am also on the California 290 HIT LIST! Street, address number and Apartment number. I have a wife and an 18-month-old Son living with me in our apartment. How in the world do I protect my young son from a person from a hate group, a vigilante, or a nut that has no idea a baby is residing here?
It is clear to me that the United states, and California Law is violating my Sons Equal Rights of Protection by providing our Address to the General Public.
Would somebody please help me in preparing an appropriate letter to the proper legislature?
Posted by: Jeff | Apr 24, 2005 2:20:23 AM
I was convicted of forceable rape 25 years ago. I did 3 years in prison over the ordeal. I am self employeed, but business has dropped off since the Megans law thing went on the net. Also, people in the community are passing out flyers. The DOJ site has me listed as a Child Molester...which is not true and is costing me heart ach and money to correct. hat wrights do I have?
Posted by: Cloud | Apr 27, 2005 12:27:41 PM
When my brother was 18, he had consentual sex with a 14yr old girl. The girl did not press charges but NJ state did. He went to jail for 9 months. This happened in 1990. Fast foward to today 6-13-2006 he was charged with failure to registar in the state of florida. He has a wife,a seven year old son and is a 35yr old adult.He was facing 16 months in prison, for this. I guess we could say he got lucky, he is on work-release for one year and probation for 3 years. Here is the best part of this, he has to inform his employer that he is a sexual offender and also has a new felony charge because he failed to registar. He is not a sexual predator he has been living a normal life. What do you think will happen when he tells his employer that a probation officer will be checking in with them for these issues? He will be fired, and how will he get another job to support his family?? They have made this law to be black or white, no gray to explain each situation. He will be put into a pool of real sexual predators, that hurt children repeatly. Those people should be put away and never let out!! If there is anyone else in this situation, please write back I think we should start an advocate group to sort out the gray areas.
Posted by: Lisa | Jun 13, 2005 3:43:56 PM
I to am on the 290 hit list. Not having money enough for a good attorney i was convicted and sent to prison. The state inacted a phony law to stop people from filing an appeal if it does not take place within one year of sentencing. My dump truck attorney never explained any of this. I can and at the time i could prove inadequate assistance of council. Due to this law he saved himself not me.
Posted by: Ron | Jul 6, 2005 11:35:15 AM
hi,
I just wanted to post from what I had learned, I am also on the meagan's website and want to say that I did fill out a form for which I don't want to be on, the crime wasn't in this state, I moved here in 2002, and the crime was a 288 lewed act on a minor, and the police dept said my case wasn't for public access only to be optained from the police dept., because I was considerd not serious as some of the other people,I called the doj office, they never reached me, and I emailed them, never got a responce, my employers knows about this, but since I go to work there, they told me just keep my mouth shut about this from other co workers, now I don't have to say anything, but did tell my employers that the community can now access this info, so i'll have to go on from here what the future holds on this, my crime was back in '93 in which I left that state because they over rated my as a high risk level, and I moved to another area in that state, and the police went around in a one mile radius to inform people of me and where I was living, I thought it was wrong, I know that I'm not serious to the commuinty, I haven't reoffended, and never well, I pleaded guilty and never went to prison, I paid a fine, served jail time and went on a decade of probation, and before meagans law passed, I was finally granted unsupervision from probation.,In 2001, I filled expugement from the court and won, then I moved to calif, six months later my whole world came down on me like a ton of bricks, the judge found a error on ex post factor clause, and my attorney had won an election for the postion to be judge in a differn't county and couldn't help me any more, he said that I would have to hire a differn't attorney and take it up to the supreme court in that state, with all this and moved with all of my expense here, I didn,t have the money to hire a attorney, and as far as here, the attornies says to me that they can't help me, because they don't have jurisdiction in my case because it was out of state offence, so I keep registering by law, untill I save enough to keep fighting for one day all of my rights back, I missed two election terms after some people told me I couldn't vote, well wrong, check your state, if you ARE not in prison, or on parole, meaning you are a exfelon, you can vote, check your state laws at your attorney generals web page, or your local library, don't let people strip your rights away, again,the only rights I don't have is carrying a armed weapon,and can't be employed by the government agency, or be recruit into armed forces, but the regular employment will be the biggest problem to uptain, check your area for jobs at the unemployment angency, don't lie because they will eventually find out the truth and you may be fired, and that goes against you as well, to my knowledge, this crime event well never go away, you turn the tv on,or radio, or read the local news paper and there it is, someone molested a child, and you fined out later the the state offical passed into law more to come to all offenders, then yet we all have to pay for that ones persons crime and to top it all, you fined out that person has just been released from prison,........gold figure,I been trusted to the police dept, and the commuinty, but never will I go alone when I'm around children, simply because your setting your self up, or to be married and have kids, to all of you do, good luck. And last, we do have the first admendment right, FREEDOM OF SPEECH.
Posted by: brown | Aug 11, 2005 3:58:03 AM
Forgot to mention, to any sexoffender who see's your info being placed around the community by spectators other then law enforcemnt acency, find out who they are and turn them in, it is illegel for the people in the commuinty to post photos with info.
Posted by: brown | Aug 11, 2005 4:07:08 AM
Megans Law in California is Unfair!!
Unfair to those of us who are FORCED
to REGISTER as OFFENDER every
single year for the rest of out life?
for 1944 MISDEMEANOR convictions?
The pasadena police refuse to register
manditory registrations ON TIME
now many of us are facing PRISON TIME
for a 30 year old MISDEMEANOR CONVICTION!!
this is totally unfair !!!!!!!!!!!!!
back in the early 1970s i was railroaded into
a false arrest wrongful misdemeanor past conviction
in los angeles county california
in fear for my life or JAILFORCEDRAPE i was
forced to take a guilty plea i was ionnocent!!
in 1996 the state of california made all former
sex convictions from check this out 1944 on to
have to REGISTER at the POLICE / SHERIFFS
stations every year on thier birthday !!!
on or about the year 2003 they finally caught up
with me and i did not know what was going on at
all!!
suddenly i was ARRESTED in rough hard HANDCUFFS
and on my way back to JAIL for failing to REGISTER
form that point on i am FORCED once every year to
go to the pasadena police station only to get
DELAYED and put off and told to go away even
after repeat APPOINTMENTS i am told everytime ...
''the lady who does that is not here'' !!!
and so what usually happens is my regestration s
are always LATE ''the pasadena police''
this last time i was ARRESTED and BOOKED for not
registering HELL I WAS TURNED AWAY FIVE TIMES !!
finally after 4 weeks i finally got to tha' LADY
now i face court AGAIN for something i did not do
back in he early 1970s !!!!!!!!!
WHERE IS THE JUSTICE HERE !! none for black men !!
and none for me !!
i may have to leave california when i become a old
man i do not want to have to do this forever!!
the state of california megans law is wrong!!
it must be reformed completely !!
i have never been charged or even accused of any
nothing like this ever since the 1970s
and i did not do what they said i did then !!
WHY AM I A FORCED REGISTER NOW?
Posted by: lincolnmontana | Mar 30, 2006 10:09:26 AM
In 2001 I got a massage in my apartment from a teenager from a foreign country. I also put lotion on her sunburned skin. For these mistakes I will forever be a convicted sex offender that has to register with the police department every year. I have to register on campus if I take classes. Attorneys lied to me, took my money, but failed to defend me well. At the last minute, after telling him I had no more money to give him, my attorney told me to plead guilty. That in itself should be a crime. This whole ordeal cost me a career, I've spent over $30K paying attorneys, fines, etc., and now nobody will hire me. What good is having a master's degree? If I want to take a vacation, I may only stay four nights in a row without having to relocate, if I don't want to report to the police as a 290 registrant. Fighting depression as a result of this is a constant battle. Yes, I annoyed the minor who agreed to the massages. Yes, I was naked in front of her, even though she said it didn't matter to her. Yes, I should have let her sunburn sizzle without aiding her personally. She should not have been placed in my apartment by the exchange program in the first place. But, I am to blame for everything. Lessons learned. Enough is enough, though. I won't allow myself to be alone in the presence of a minor again. But, now I don't have many rights for the minor wrong I did. After five years of probation are finally over, my plan is to leave this country. It is not my home anymore, even though I was born and raised here, served in the military for four years for this country, voted in every election until I plead guilty, earned two higher degrees, and have paid taxes for the system to operate. None of the good things I have done before or since make a difference, because I am placed in the same category as a child rapist in the eyes of the media. They propagate the opinions of the vast majority who choose not to inform themselves on the big(oted) picture. How absurd this society has become! When I leave, don't try enticing me to return. This is the world capital of throw away societies, and throwing away citizens is no exception to the rule.
Posted by: Another One | Nov 19, 2006 12:58:02 PM
I AM ALSO A PC. 290, IN 11-93, Because of my attorney adviced I pled guilty and waive all my right to the court, and now 2007 since I am a ligal resident now I am facing deportation to my country. I was able to get a case desmeas, a plea of not guilty was entered PC. 1203.4 and is not enought, what should I do?
also here is some info. that I found that maybe can help some one.
Dismissals
If you were convicted of a misdemeanor or a felony and were not sentenced to state prison or under the authority of the California Department of Corrections you can petition for a dismissal. This means you were given county jail time, probation, a fine, or a combination of those three. If you are petitioning for a dismissal, the court upon proper motion, may withdraw your guilty or nolo contendere (no contest) plea, or verdict of guilt if you went to trial, and enter a not guilty plea. Then the court will set aside and dismiss the conviction. From that point forward, you are considered no longer convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.
[ Top of Page ]
Are You Eligible for a Dismissal?
If you were given probation, you have either completed it or obtained early release. If you violated your probation and it was either reinstated or revoked, then the court has discretion whether or not to grant you a dismissal.
If you were not given probation, it has been at least one year since the date of conviction.
You have paid all fines, restitution and reimbursement ordered by the court as part of your sentence.
You are not currently under arraignment for a new criminal offense (charges pending), nor are you on probation for another offense.
[ Top of Page ]
Some Convictions are Not Eligible for Dismissal
If you were convicted of any of the following offenses you are not eligible for a dismissal: Vehicle Code Section 42001(b) which includes sections 2800, 2801 and 2803; Penal Code Section 261.5(d), 286(c), 288, 288a(c), 288.5 and 289(j).
[ Top of Page ]
Diversion
If you were referred to a "diversion" program, you record will already be changed in one of two ways. If you successfully completed all of the diversion program requirements, your record should already be changed to show a dismissal. If you didn't complete your requirements or were not actually given diversion, then the conviction will be on your record.
[ Top of Page ]
Marijuana Possession Offenses
If you were convicted of possession of marijuana for personal use then you do not necessarily need to get a dismissal for the offense. Under California Health and Safety Code Sections 11361.5 and 11361.7 all possession of marijuana for personal use convictions, after January 1, 1976, are erased from your record after two years. BE CAREFUL! The conviction cannot be for cultivation, sales or transportation. If it is, it will be on your record.
[ Top of Page ]
Juvenile Records
Your Juvenile records do appear on your criminal record. Upon your 18th birthday, you are eligible to petition to have your juvenile records sealed. Once sealed, no one can gain access to them and they will be completely destroyed five years from the date of sealing.
Juvenile records are not automatically sealed upon your 18th birthday. You must affirmatively petition the juvenile court to have them sealed. You can do this by filing out a form and filing it with the juvenile court in the county in which you were convicted. Contact the juvenile court in the county you were convicted, and ask them to send you a copy of the form used in that county. Check to see if they have any special filing requirements such as additional photocopies or the need to serve copies of the petition on any government agencies, and get the correct information for filing by mail. Usually, there is no fee.
If you graduated from the Department of Corrections and Rehabilitation, Division of Juvenile Justice , your juvenile conviction(s) will have been dismissed as part of your graduation. If you do not petition to have your juvenile records sealed and destroyed, they will remain on your record until your 38th birthday, then they will be destroyed.
[ Top of Page ]
What Will a Dismissal Do?
Once all of your convictions have been dismissed:
On questions by Private Employers if you are asked if you have every been convicted of a crime, you must respond with "YES-CONVICTION DISMISSED."
On questions by Government Employers or Government Licensing Applications if you are asked if you have ever been convicted of a crime, you MUST respond with "YES-CONVICTION DISMISSED." In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards), will treat you the same as if you had never been convicted of any crime.
You will not be allowed to own or possess a firearm until you would otherwise be able to do so.
Your dismissed conviction(s) can still be used to increase your punishment in future criminal cases.
Your prior conviction(s) can still affect your driving privileges.
If you have been required to register as a sex offender as a result of a conviction, you have to make a different motion to the court in order to be relieved of this requirement. A dismissal will not relieve you of your duty to register as a sex offender.
[ Top of Page ]
Complete and File the Petition(s) and Fee Waiver(s)
If you are filing a petition for reducing a felony or a petition for early release from probation or for a dismissal, you will need to call the Clerk of the Superior Court for the county in which you were convicted, and ask them for the following information:
Have them send you as many copies of their form (if they have one) as you have convictions in that county.
Ask if you need to submit additional photocopies of the petition, and how many?
Ask if their rules of court require you to serve copies of your petition on the district attorney and/or probation department?
Ask what the correct mailing address is for filing by mail?
Remember, you can only dismiss one conviction at a time. This means you will fill out a separate petition for each conviction that you want to dismiss, but you can file them all at the same time. If you are currently on probation, you will need to deal with that conviction first, then you can proceed with the others. Usually there is a fee to file a petition for dismissal with the court. However, fee waivers are available to people who cannot afford to pay. Click here for court fee and waiver information.
[ Top of Page ]
File Your Petition(s) and Fee Waiver(s) With the Court(s)
If you are filing a petition for reducing a felony or a petition for early release from probation or a dismissal, you will need to mail (or deliver in person) your filing materials to the Clerk of the Superior Court for the county of your conviction(s).
Be sure to include any supportive materials such as letters of support, school diplomas and/or transcripts, and if applying for early release from probation, include a letter to the judge explaining why you feel you should be released from probation early. At the time you file your papers, the clerk will set a hearing date.
If required in your county, be sure to serve the district attorney and/or probation department.
You will be required to attend the hearing, although for 1203.4 and 1203.4a petitions you may not have to appear. If you are required to attend the hearing BE SURE TO ATTEND. Be on time, and dress for conservatively If you petition is granted, make sure to put the order in a safe place for your records.
Posted by: Ramon | Feb 19, 2007 2:53:29 PM
Remember these words. Due Process Violations.
Forget Ex-post Facto, forget everything but due proces of law under the 4th amendemnt.
Civil Rights Violations can be presented to
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202)514-3204
Posted by: Civil Rights | May 22, 2007 10:30:37 PM
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