By Mark David Blum, Esq.
For doing nothing more than being stranded half way between South Carolina and New York, specifically for doing nothing more than being at your mother’s house for more than a week until she could find the funds to get you the rest of the way home, you are going to jail for six months and are put on probation for five years. “Ack, that’s nuts”, you say. Tis the facts indeed.
Here in New York, a man who at the age of 23 engaged in sexual acts with a female then age 16. Not a pretty sight by my imagination, but I have an unusual imagination. Found guilty of the sex crime, the man became a mandatory registrant of New York State’s Sexual Offender Registration Act (SORA). Nothing happened to the female beyond her orgasm. First, the man was listed as the lowest level offender on the SORA registry. Secondly, the crime itself for which he was convicted back in 2005 was a misdemeanor. Now, for the additional offense on not registering a new address within ten days because of being stranded, our hero gets six months in jail and five years of parole.
Blinded by lust for [re-]election, Legislators stood upon the backs of the current fashionable whipping dog – the pedophile – and used his existence in society to strip down the constitution. “Look who we can attack and appear to be tough on crime.” They beat the drums of fear and the electorate danced blindly along giving birth to SORA. Boiled down to its gravy, SORA requires annual registration of every person convicted of certain sex crimes. Depending on the nature of the crime, there are various levels of offender based on a perceived risk of re-offending. A level one is considered the lowest risk. Levels 3 and above are considered the highest.
The Act requires those convicted to register for extensive periods of years. For example, the lowest risk offender is required to register as a sex offender for a period of 20 years. Every other offender is required to register for life (with the possibility of a Level 2 offender being able get off the list after 30 years). Being a registered sex offender is about the ugliest label you can put on a person. Once that label is affixed, there is no escape and registration and identification and labeling is forever.
I am by no means an expert on this subject and have only confronted the statute a few times in context of cases. Based on that limited exposure and on conversations with prosecutors and defense attorneys, I conclude the SORA is the wrong response to a serious problem.
By way of example: Like the once-upon-a-time mandatory sentencing guidelines enacted by Congress, SORA has little wiggle room for individual human conditions. Everybody is branded and handled the same way regardless of who they are or what was their sin.
Obnoxious and unenforceable laws were passed; this time requiring the potential for indeterminate incarceration AFTER a criminal has served their sentence. As Judge Tormey points out, the costs of this masturbatory legislation is going to break the back of the Court system. Calling it a “nightmare”, he said the cost is so high and projected to grow exponentially, that Hon. James Tormey, Supervising Judge, Fifth Judicial District, could not even put a price tag on it.
This is just another disgusting chapter in America’s newest war on sex. Politicians seeking re-election and who have no merit to their candidacy, continue to turn their attentions to America’s newest boogiemen … the convicted sexual predator. ‘Drug dealers’ are so ‘90’s. Sexual offender laws are getting more abusive. Governments are taking great privilege with liberty and privacy. In the end, as with every other such policy, the innocent are getting swept up and the policy is an ultimate failure.
It all started locally with Cicero Town Councilor, Jim Corl who this year is up for re-election. He introduced and got passed legislation that restricted where a convicted sex offender can live in his town. It mattered not to Corl that the person had served their sentence and paid their debt to society. Similarly, it mattered not that murderers and other violent felons and drug dealers live freely in his town. Just sex offenders were the target of his law.
Corl’s law is part of the new Republican playbook. Straight from the cookie cutter politics of Karl Rove; we find politicians creating an enemy who scares us all, and in defense of whom, few if any will rise. Unbelievably, the State of Ohio wants convicted sex offenders to drive around with florescent green license plates. Why not scarlet? The City of Auburn is now discussing passing such a law; as are municipalities across the nation.
It doesn’t end there as Governor Spitzer signed the most fascist bill ever to come out of a State Legislature. Now, it is untested but it is the law that a person who has been tried and convicted and served their sentence, can still be held in custody “forever” on the assumption that they are just too dangerous to be in public. Again, this law only applies to sex offenders; not drunk drivers, murderers, robbers, or other violent felons. Nobody seems to care if they are returned to society and move in across the street from the nearest school.
That Bill is the one about the break the back of the fiscal health of the Court system. It is the law about which Judge Tormey raises his voice. Again and again, with the passage of each of these laws, we see blowback that is more devastating than any prevention we may realize.
Compare the recent trial in Oswego of the former Parks Commissioner with a case I have pending here in Onondaga County. In Oswego, the allegation was the Commissioner had sent immoral sexual chats via the internet to young girls. He was not accused of touching, making plans to meet, or engaging in any act that threatened anybody. Notwithstanding his recent acquittal, prior thereto we still had to have the discussion about SORA and his place in it. By using their mathematical formula, that client would have come out between a level one and level two. A hearing would have been required to determine his status and then shoo him off to a lifetime of being branded with the scarlet letter.
Here in Onondaga County, there is a case where a 22 year old is alleged to have had sexual relations with a female under the age of 16. Though not resolved, if this case ends in a conviction, that 22 year old man will be nearly 60 before he may come off the registration list. Whom among us is at 22 as we are at 60? Those who are have wasted 40 years of their life.
But being 22 and a labeled level 1 or 2 sex offender will taint and end this young man’s chance at life. In addition to registration, he will be constantly monitored, restricted in where he can live and work, be chased away from churches, schools, and Halloween, and never be able to come out from under the cloud. He is not accused of homicide, arson, or kidnapping.
In a recent hallway conversation with Donald Dodd, Esq., District Attorney for Oswego County, we talked about SORA and the sorry state of legal affairs that go with it. SORA prevented me from negotiating a plea deal in Oswego and will prevent me from doing so here in Onondaga County. The fear to the client is not the sentence as in neither fact pattern is there a significant risk of incarceration. In both cases, the registration and branding effects are monumental. Mr. Dodd and I both agreed that the only way the Legislature has left prosecutors and defense attorneys to resolve sex cases is to take every one of them to trial.
Each case has to be taken to trial because if the government is going to take your life away from you and brand you for life with the scarlet letter of sex offender, there is no downside to a trial. In fact, there is a tremendous upside because proving a sex case; especially a statutory rape case, is exceedingly difficult on a good day. Fighting the case and requiring the 15 year old girl to come in and give detailed embarrassing testimony is a shameful blight on our court system. Prosecutors and defense attorneys cannot negotiate a disposition that meets the ends of justice. Instead, no deals and no negotiations are going to become the norm and the victimization will continue.
Sex offenders are dangers to society. They pose no more or less of a threat than a murderer, a street thug, a drunk driver, or a burglar. Isolating them as targets during election season is easy as finding someone to defend an accused sexual predator is nearly impossible. How do you oppose a candidate and say, “you are wrong, sex offenders are OK people or at least no different than any other criminal.” Being Americans and coming from the most sexually repressive society in the modern world, it is understandable why people succumb to the hypothetical threat of sexual predators lurking behind every keyboard and bush.
Of course, this whole concept of legislating against people we are mad at instead of protecting ourselves from people who threaten us is a colossal failure. Nothing stops a predator from driving a few extra feet to snatch a strange child. Laws do not respond to non threatening situations like the 17 year old boy engaging in sexual exploration with his 16 year old girlfriend, the man who urinates in public, or the adult who engages in chatting online with a minor.
Police and several State governments are learning the lessons and backing off of these laws. The practical application and unintended consequences of residency laws that have led some sex offenders to go underground, or not register with local police, or give fake addresses. Many complain they cannot find a place to live legally. There is also a strong push to ease residency restrictions from victims' advocates, prosecutors and police. Chief among their complaints is they spend too much time investigating potential violations.
Judges, police, and other experts in the criminal justice system are already complaining about SORA and other identical laws in other states. Because of registration requirements, finding homes is nearly impossible so most registered offenders simply drop off radar. They move, don’t register, and remix into society. Or, they end up homeless and without work or a future and we, the taxpayers, end up supporting them for life. Worse still is that the Courts and police are being used to monitor and track these offenders; to the detriment of current crimes in progress and an already clogged criminal calendar.
Whether you are caught up in the frenzy of the sexual offender or are a rational adult who sees that offender in context of other crimes, you have to see that SORA is not the solution. SORA does nothing to prevent a predator from reoffending. The Act does nothing to bring speedier justice to wrongdoers. Our Legislature has made the normal process of enabling a wrongdoer to come forward and take responsibility for his actions nearly impossible. The impact upon the criminal justice system is only now being felt. In the end, we all suffer.
As the father of a nearly 16 year old child, the same age as the alleged victims in the two cases cited herein, I would probably be blowing fuses should such acts happen to my daughter. But I also have to keep reminding myself that she is a sexual being and like the rest of us, will slowly learn and grown into her sexuality. I don’t relish the thought and in fact, I don’t want to think about it at all. But it will happen no matter what I do to prevent it. Even Carrie’s mom couldn’t stop it.
My discomfort as a father should not be the gold standard by which laws are made. Men have real issues with males and young females whereas when the involved is an older female and younger male, we cheer. This is about sexual bias in the law and the need for men to “protect” their women. Such was the rationale behind our laws that keep women from combat and which serves as the basis for the glass ceiling.
Seems to me that the greater harm to society is not that people are having sex or engaging in acts of violence. Instead, the real danger lurks in how we are making momentary lapses of judgment lifetime sentences and punishment. “Justice” is not being served and society is not one bit safer. In fact, the more we focus on the sexual predator, we take away our attention from murderers, terrorists, and thugs. If the quality of life means anything, it should mean that every American is entitled to a life. SORA does nothing to further that aim. Instead, it gives our politicians a punching bag for their next campaign.
As a member of this community and citizen of the United States, I am more fearful of legislators whose election platforms are built on the backs of children than I am of convicted offenders living within so many feet of a library. We are not building a society of children nor for children. Children are nothing but soon to be adults and adults-in-training who one day will have to assume the responsibility of their own lives. Dumbing us down and restricting the lives of adults to chase ghosts is a waste of time and money. It is an insult to our Founders and the very concept of this nation. Tearing another shred off the Constitution does nobody any good.
It is indeed a sad commentary on the state of political affairs when we have to defend criminals from the lynch mob mentality. So long as people are hungry, homeless, uneducated, without medical care, and shoulder substantial tax debt, it is unconscionable for a legislator to waste a moment of his time in office or a dime of the People’s money on any other issue.
I wait for the day a real savior arrives on scene; one who can run for office on the merits, who can take a stand against unjust laws, and is not afraid to look you in the eye and say “freedom means risk”. Live free or die a slave.