“Wisconsin has not done nearly enough to combat the spread of COVID-19 in our jails and prisons,” ACLU organizer Sean Wilson said in a statement.
“Wisconsin has repeatedly neglected to release vulnerable people from custody, which has endangered the health of incarcerated people, corrections staff, and members of surrounding communities,” Wilson said. “We encourage the governor and Department of Corrections to take immediate action to release vulnerable people and stop this public health catastrophe.”
“an analysis of the ethics of labeling individuals on the basis of criminal convictions, past behavior or psychological phenomena is presented. It is argued that the use of such labels contradict core ethical principles including beneficence and nonmaleficence, respect for the dignity of all persons, and responsibilities to society. A de-labelling movement for forensic/correctional psychology and related fields is proposed.”
We need to remember what this is implying… and What it is violating… our US constitution!
John Adams once said, “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
We are there folks… the end of our security… Look around stop watching the news and start to look and think for yourselves!!!
While the DOC repeatedly says that they ‘have a plan’ to keep the people that are in their care safe. I am not so sure.
I’d like to speak to any of the followers here that have a loved one in any of the prisons or jails in Wisconsin, please let us know if what we read in the papers is true or is the reality far different?
______________________________________________
Data on the DOC’s website shows 8 DOC employees have tested positive for coronavirus in various facilities, but there are no known positive cases among inmates. If an inmate would get COVID-19, the inmate, along with those who had contact with them, would be quarantined. On the website it says, “Each institution determines the area within their facility most conducive to such isolation procedures. Individuals that are quarantined for any contagious disease are quarantined in separate areas.” According to the DOC, visitations and inmate transfers have been suspended, inmate movement is limited and wellness checks are being carried out on those deemed to be high-risk. If the virus spreads, like the anonymous inmate fears, the DOC says it has a contingency plan in place. It’s activated the Department Emergency Operations Center to help coordinate resources, staffing and medical surveillance agency-wide.
the wording of the amendments a “yes” vote would make to our state constitution, you’d think that people accused of crimes in Wisconsin are somehow over-defended. You’d think that prosecutors were scraping by on impossibly low levels of funding while public defenders enjoyed the full cooperation of cops and routinely pushed the legal and ethical envelope without consequences. You’d think that criminal defendants and their attorneys were constantly dragging victims and their families through lengthy trials, rather than overwhelmingly opting for plea bargains. You’d think what passes for “due process” in a criminal jury trial placed the defense at an advantage, rather than increasing the odds that the defendant will get a tougher sentence or even face more serious charges—what lawyers call the “trial tax.” You’d think that our systems of prosecution, policing, and incarceration were somehow not reckless or vindictive enough.
Wisconsin voters should not only vote no on the ballot question, but also demand accountability from public figures and organizations in Wisconsin who have supported the measure. That includes Democratic and Republic state legislators, Democratic Wisconsin Attorney General Josh Kaul, dozens of sheriffs and DAs, and organizations that otherwise do righteous work, including the Wisconsin Coalition Against Sexual Assault and the Wisconsin Nurses Association. Something incredibly weird has to be going on when such organizations make common cause with entities as profoundly vile as police unions.
The order puts a “moratorium” on prisoner intake for DOC’s prisons and juvenile detention facilities, with the exception of the temporary detention of those on probation, parole or extended supervision. All internal transfers of prisoners within DOC are also suspended except for “essential transfers,” Neal said Saturday.
The DOC secretary has the power to lift the moratorium at any time.
In a statement, Evers and DOC Secretary Kevin Carr said the decision “was made out of an abundance of caution” to mitigate the spread of COVID-19.
Under the order, any defendant who is sentenced to prison will be held in a county jail instead of being transferred to one of DOC’s more than 30 prison facilities across the state.
Neal said most individuals who violate probation and parole rules would also go to the county jails, but some would go to a DOC facility in Milwaukee that is specifically for felons who violate their supervision terms. It is the only such DOC facility.
Pass it on to your friends as you see fit, pass it on to co-workers as you see fit. Pass it on to strangers as you see fit…
It is a long article but it is worth the time and the read…
Hello
All,
I
have not Bcc’d this to people because I want all to know the group I wish to be
better educated and hope that all of you will consider passing on this
“well credentialed Statistician’s description of what is happening.
Some will have already consumed the Kool-Aid and trash this buying into the
“Panic” created. For that I am sorry. Still the best
thing that can be done is 1) Wash your hands, 2) Keep some reasonable distance
between you and others, if possible. 3) Wash your hands (I know I said it
before).
Semper Fi
The Wisconsin Department of Corrections has temporarily suspended all visits to its institutions in effort to help prevent the spread of coronavirus.
This includes volunteer visits.
“We take our responsibility to protect staff and persons in our care very seriously, and out of an abundance of caution are taking actions to minimize the risk of bringing COVID-19 (Coronavirus) into facilities,” reads a statement from the DOC.
The agency says it will be working to expand other methods of communication. That includes phone calls and video visits.
Fresno County was sued over its law and will have to pay a settlement.
The California Supreme Court decided in 2015 that blanket residency restrictions were unconstitutional, because they treated every offender equally — whether they exposed themselves in public once or were a repeat rapist.
“We gave them a couple years notice,” Bellucci said of Fresno County on Wednesday, noting the 2015 court decision. “It took them almost five years to do the right thing.”
During his testimony Halsted pressed the importance of hard evidence showing that increasing penalties will deter such acts. “I don’t see why somebody threatening my child should be charged with a lesser crime than someone who threatens a probation agent’s child,” he said. “Everybody should be equal before the law. I think there should be penalties. People need to be held accountable. But when we start dividing up who’s more important than who or what role they are playing in society and decide that’s how we’re going to punish people, unless we can really show that enhancing penalties does have that desired effect, I really feel like it just makes us feel better to beat people with a bigger stick.”
Sens. Jacque and Van Wanggaard, the committee chair, brushed back Halsted’s arguments. Wanggaard said someone who threatens your child just to threaten them, “that’s different than someone threatening my child because I arrested them, or I arrested one of their family members.” A former law enforcement officer himself, Wanggaard declared, “You bet every time I’m going to go after that individual for whatever that maximum charge is.” Jacque added, “There’s bias in statistics,” dismissing Halsted’s call for evidence.
Sen. Lena Taylor (D-Milwaukee) sparred with Wanggaard over the way the bills continue to steer Wisconsin’s criminal justice system toward longer sentences and more incarceration. “A human being is a human being is a human being is a human being,” said Taylor. She pressed the importance of evidence-based reforms to the system, and the need for legislators to listen to the experts rather than relying on their emotions. “We have a majority that has chosen to have that mindset instead of seeing our problems and actually trying to address it, like the experts are telling us to do!”
Taylor urged her colleagues who are pushing for higher penalties and more incarceration to help the state “change our mindset so we’re not spending more on our criminal justice system than we are on education.” Speaking directly to Wanggaard, Taylor said, “We have a Department of Corrections, not a Department of Punishment.”
….If the Department believes there is reason to believe you violated the terms of your supervision, you will be placed in jail. From there, the Department may seek to revoke your supervision, which means that it is pursuing your removal from the community and placement into the jail or prison. The process is an administrative one that does not occur in a courtroom, and while you are entitled to an evidentiary hearing, you will not have a trial before a jury, a circuit court judge will not hear your case and the Department will not have to prove that you violated your supervision rules beyond a reasonable doubt.
Once you arrive at your hearing, which is not public and occurs within the confines of a jail or prison, you will find that an administrative law judge will be presiding over your case and your supervision agent “prosecuting” the Department’s request for revocation. The rules of evidence also do not apply, and the Department is not required to have witnesses testify about the allegations against you. Under Wis. Admin. Code § HA 2.05(6)(d), hearsay is admissible and for that reason, you can be revoked and sent to jail or prison based on a letter or police summary of the allegations someone else has made against you. The hearing will be short, likely no more than an hour, at which time you must present your case and the reasons why you should not be revoked.
While the rules and procedures controlling a revocation hearing may not be in your favor, you have the right to be represented by an attorney, a right you should absolutely afford. An attorney can and should research treatment options or community-based programs available as alternatives to incarceration. An attorney can call witnesses on your behalf at the hearing, can challenge the allegations against you and even if you violated the rules of supervision, can argue that revocation is not necessary.
If there ever comes a point where you find yourself subject to revocation by the Department, please seek the assistance of counsel before you take any action. An attorney may be the only thing standing between you and a lengthy period of incarceration.
Crime rate didn’t cause a rise in the prison population, researchers say.
Researchers from several studies indicate that the increased prison population is not the result of an increase in crime, but rather policy choices, according to the report by the Columbia University Justice Lab.
The property crime rate in Wisconsin was 27 percent lower than the national average in 2017 and has decreased since 2013. The violent crime rate was also 21 percent lower than the national average but has increased slightly in recent years, the report says. African-Americans are also disproportionately placed under supervision and reincarcerated for supervision violations, according to the Department of Corrections. In Racine County, the numbers bear this out. From 2000 through 2018, 2,338 — or 60 percent — of all revocation-only admissions were black, according to the DOC.
While no issue has the potential to create more anxiety, it is important to note that the recidivism rate among these offenders is only 8.8% and that in a majority of the cases (86%- 94%) were committed by either family members or close acquaintances.
One of the most frequently asked questions I receive when conducting a notification is “Why here?” Many are not aware that there is in fact a state statute requirement that upon discharge from the correctional facility, the offender must return to the county of conviction.
CASPER, Wyo. — House Bill 68 aims to require registered sex offenders to obtain permission from Wyoming school principals or vice principals before they
Seven years after McCurdy was committed, his lawyer, Jim McEntee, was trying to persuade a judge that his client was a low risk to reoffend. If he failed, McCurdy would be confined at the hospital indefinitely. Fortunately, the lawyer had heard of evidence that might tip the scales: a study done at Atascadero itself that could help his client.
McEntee called as a witness Jesus Padilla, one of Atascadero’s psychologists. Padilla was four years into a study of ex-offenders classified as SVPs who had been released on technical grounds. Padilla had tracked them to find out their recidivism rates, which he presumed would be high.
What he discovered would undermine the basic premise of civilly committing people with sex crime records. In his sworn testimony before the judge and an October 10, 2006, memo, Padilla explained that of the 93 ex-offenders he and a colleague had tracked, just six had been rearrested for an alleged sexual crime after about five years in the community.That amounts to an astonishingly low rearrest rate of 6.5 percent. By comparison, a 2018 study by the federal Bureau of Justice Statistics found that 49 percent of all state prisoners were arrested again for the same type of offense within five years of their release.
The recidivism rate that Padilla found for SVPs did not square with the 1995 law that created the program, which had called the people it targeted a “small but extremely dangerous [group of] sexually violent predators.” In short, the study called into question the legitimacy of the entire $270-million-a-year civil commitment program.
Shortly after his testimony, Padilla’s study was abruptly terminated. His records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work. At first he pushed back and even tried to continue on his own. But as he explained in 2009, “It’s too hard to fight the system, you know.” In 2013, Padilla died of stomach cancer, his research unfinished. The whole incident might have been forgotten, if not for the work of law professors Tamara Rice Lave and Franklin Zimring, who excavated Padilla’s work in a 2018 American Criminal Law Review article and brought to light the ways in which the state tried to ensure that knowledge of it would die with him.
A sex offender expert with the Wisconsin Department of Corrections on Monday discouraged the Harmony Town Board from passing an ordinance restricting where sex offenders could live in the town.
The town board later tabled its proposed ordinance again during a lengthy meeting.
The sex offender ordinance was proposed after board members learned that multiple sex offenders were living in the former Pine Tree Inn, 4544 W. Highway 14, which is now operated by the Jessie Crawford Recovery Center.
Sex offender registration specialist Robert Fugate said about 93% of child sex offenders know their victims, and more than three-quarters of adult sex offenders know their victims.
“Stranger-on-stranger incidences are very rare, and they garner a lot more media attention because of how rare they actually are,” he said.
Fugate said he used to work in Walworth County, which has many sex offender ordinances. In communities with such ordinances, the rate of homelessness increases for offenders, he said.
For example, if an offender’s family moves to a town that has a residency ordinance, that offender cannot live there.
“Most likely, they’re going to have to go to another unstable environment for them to reside,” Fugate said.
Without a place to live, the offender might become homeless, he said.
“When you look at a map of where registered sex offenders live, those are addresses that you know where they live,” Fugate said. “You know they live in your neighborhood. You may not like that, but you know where they live.
“When somebody reports to the register that they are homeless, they will not show up on that map because they don’t have a residence that they’re reporting.”
Instead, offenders might move from place to place.
“The other thing to keep in mind is, with an ordinance, that dictates where someone can reside,” Fugate said. “It doesn’t mean that they can’t go to that same address.”
An offender can visit an address for an entire day and not violate the ordinance, he said. He pointed out that those visits will not show up on any sex offender registry map.
“You’re not going to see that that’s the address that they are registered to be living at,” Fugate said. “You don’t know who they are. Sex offenders (who) can live in anonymity and in the shadows are what we do not want, because when you don’t know who somebody is and what they’re about, that’s when your guard comes down.”
If the town board passes an ordinance, he said, “You’re going to see, maybe not right away, but eventually you may start seeing those dots disappear, and you think you’ve got it. They’re gone.
“They’re just not showing up on the map. It doesn’t necessarily mean that they (offenders) are gone. Again, I understand the concern, but in my mind, having that knowledge gives me more information than not knowing where they are.”
Town board Chairman Jeff Klenz replied, “As a board, we’re trying to make sure that everybody’s safe.”
He added: “We also want to keep our property values up there.”
Plotkin hesitates to call SB 60 reform. While it would do away with the state rule, it doesn’t touch the municipal distance restrictions like Waukesha’s that affect many of the 25,000 or so people on the state’s sex-offense registry.
There is always a large number of bills working their way through our Wisconsin government. When I go through the list, I see a lot of wasted time and tax dollars. So I did a little search through these using the keyword ‘sex’, I didn’t put all the results below, since some didn’t apply to WAR, but the relevant ones you’ll find below.
Something that many Wisconsinites may not know is that for every Assembly bill there is a sister Senate Bill and vise versa, all depending on which house presents the legislation first, usually. Some of them didn’t have sister bills and have been presented recently, so likely there hasn’t been time to make a sister bill for the legislation.
There are quite a few of them so this post will be rather long. For each bill I have posted the Legislative Reference Bureau Analysis so you can get an idea of what each bill is about. I encourage any of you that have questions about any of these bills that you ask your local Assemblyman or Senator, have them explain how this is good for Wisconsin and their constituents.
AB55 and SB60– Relating to: applicability of 2017 Wisconsin Act 184; time frame for reports for sexually violent persons petitioning for supervised release; and placement of sexually violent persons on supervised release.
2017 Wisconsin Act 184 modified the procedure for determining the placement of a sexually violent person on supervised release. One change eliminated the ability of the court to choose a county other than the person’s county of residence to prepare a report identifying appropriate residential options for the person. Prior law had allowed the court, with good cause, to choose another county. The effect of this change was that the person could not be placed in a county that was not his or her county of residence. The changes made in 2017 Wisconsin Act 184 applied to any petition for supervised release pending as of March 30, 2018. This bill clarifies that a petition for supervised release was pending if the person had not been physically placed in a residence on supervised release.
This bill also requires the Department of Health Services to identify any person on supervised release whose residence is not in his or her county of residence and who had been physically placed in a residence on supervised release on or after March 30, 2018. If DHS identifies any such person, DHS must notify the court, and the court must revoke the person’s supervised release and order the person’s county of residence to prepare a new report.
Under 2017 Wisconsin Act 184, a county was required to prepare its report for the court within 180 days of the court order if the order was made on or after March 30, 2018, and before April 1, 2019, and within 120 days if the order was made on or after April 1, 2019. If the county failed to prepare its report in that time frame, the county would violate the person’s rights as a patient and would be subject to enforcement and damages for each violation. This bill eliminates the shortening of the time frame beginning on April 1, 2019, so that a county is required to prepare its report for the court within 180 days of the court order. This bill also allows a county,
if it fails to prepare its report within 180 days, to request that the court make a finding that the county is making a good faith effort to prepare the report, and, if the court makes such a finding, the county is not subject to enforcement and damages.
Under current law, when a sexually violent person is placed on supervised release, he or she may not be placed within 1,500 feet of a school, child care facility, place of worship, park, youth center, or other specified places. Under the bill, the county must consider the proximity of the placement to the places specified under current law, but the bill removes the exact distance.
AB 171 & SB104 – Relating to: sexual contact by a law enforcement officer with a person in his or her custody and providing a penalty.
Under this bill, it is a Class C Felony for a law enforcement officer to have sexual contact or sexual intercourse with a person in his or her custody. For the purposes of the crime created in this bill, consent is not an issue. The bill adds the prohibited conduct to the list of activities in current law that constitute second degree sexual assault. Current law does not contain a criminal prohibition on sexual contact between a law enforcement officer and a person in his or her custody.
Under current law, a person may be required to register as a sex offender for certain crimes that are sexually motivated if the judge determines that it would be in the interest of public protection to have the person register. Under this bill, the new offense of sexual contact between a law enforcement officer and a person in his or her custody would be subject to this provision.
Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.
AB152 & SB139 – Relating to: sexual contact with an animal and providing a penalty.
Under this bill, it is a Class H felony to have sexual contact with an animal, to promote or otherwise participate in sexual contact with animals, to create, possess, or distribute obscene material depicting a person engaged in sexual contact with an animal, or to advertise, harbor, transport, provide, or obtain an animal for the purpose of having sexual contact with the animal. In addition, it is a Class F felony to force, coerce, entice, or encourage a child under the age of 13 to engage in sexual contact with an animal or a Class G felony if the child is over the age of 13 but under the age of 18. It is also a Class F felony to have sexual contact with an animal in the
presence of a child under the age of 13 or a Class G felony if the child is over the age of 13 but under the age of 18. In addition, all felony classifications are increased forsecond or subsequent violations.
Under current law, it is a Class A misdemeanor for a person to commit an act of sexual gratification involving his or her sex organ and the sex organ, mouth, or anus of an animal, or involving his or her sex organ, mouth, anus, or other body part
and the sex organ of an animal.
Under current law, a person may be required to register as a sex offender for certain crimes that are sexually motivated if the judge determines that it would be in the interest of public protection to have the person register. Under this bill, the new offense of bestiality would be subject to this provision.
Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.
AB214 & SB200 – Relating to: storage and processing of sexual assault kits and requiring the exercise of rule-making authority.
Under current law, there is no statutory procedure for the collection and processing of sexual assault kits. This bill creates procedures for transmission, processing, and storage of sexual assault kits. Under the bill, a health care professional who collects a sexual assault kit must do one of the following: 1) if the victim wants to report the sexual assault to law enforcement, the health care professional must notify a law enforcement agency within 24 hours of collecting the kit; or 2) if the victim does not want to report the sexual assault to law enforcement, the health care professional must send the kit to the state crime laboratories within 72 hours for storage. Under the bill, if a law enforcement agency has received notification from a health care professional that a kit has been collected, the law enforcement agency must take possession of the kit within 72 hours, and must send the kit to the state crime laboratories for processing within 14 days. If the victim changes his or her mind about wanting to have his or her kit analyzed after it is given to a law enforcement agency but before the agency sends the kit to the state crime laboratories for processing, the agency must send the kit to the state crime laboratories for storage rather than for processing.
Under the bill, once the state crime laboratories takes possession of a sexual assault kit, it must do one of the following: 1) if it has received the kit of a person who has not consented to analysis, securely store the kit for a period of ten years; or 2) if it has received the kit of a person who has consented to analysis, process the kit and then send it to a law enforcement agency to store the kit for a period of 50 years, or until the date of the expiration of the statute of limitations, or until the end of a term of imprisonment or probation of a person convicted in the sexual assault case, whichever is longer.
Under current law, local law enforcement agencies report certain crime statistics to the Department of Justice. This bill requires law enforcement agencies to provide additional data to DOJ regarding sexual assault kits collected and processed in Wisconsin in addition to the data currently being reported. This bill also requires DOJ to publish data on law enforcement agency compliance with DOJ reporting requirements.
For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.
AB289 & SB261 – Relating to: underage sexual activity.
2017 Wisconsin Act 174 created the offense of underage sexual activity. Before Act 174, a person who was convicted of sexual intercourse or sexual contact with a child who was at least 13 but under 16 was guilty of a felony. Under Act 174, the offense of underage sexual activity changed the classification of the crime so that a person who has sexual intercourse with a child who is between 15 and 18, or sexual contact with a child who is 15, is guilty of a Class A misdemeanor if the person is under 19 years old.
This bill allows persons who were convicted of a sex offense against a child that occurred before the effective date of 2017 Wisconsin Act 174 (March 30, 2018) to petition a court to vacate that conviction and enter a conviction for the lesser offense of underage sexual activity if the person could have been convicted of the lesser offense if the violation had occurred after March 30, 2018.
AB352 & SB326 – Relating to: creating a sexual assault victim bill of rights.
This bill creates a sexual assault victim bill of rights. In addition to the rights extended to crime victims under Wisconsin’s basic bill of rights for victims and witnesses, this bill adds the following rights for victims of sexual assault, regardless of whether or not they choose to cooperate with a law enforcement agency: the right to be provided with accurate written information about his or her rights as a sexual assault victim; the right to choose whether or not to undergo a sexual assault forensic examination; the right to bathe immediately following a sexual assault forensic examination; the right to choose whether or not to cooperate with a law enforcement agency; the right to have any examination evidence stored for 50 years or until the end of the prison term of the person convicted of the assault against him or her; and the right to be notified in writing 60 days prior to the destruction of any evidence obtained in a sexual assault forensic examination.
The bill also requires the Department of Justice to test the sexual assault kit of a person who is cooperating with law enforcement within 90 days of collection and requires DOJ to store all sexual assault kits for 50 years or until the end of the term of imprisonment or probation of a person convicted in the sexual assault case.
For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.
Under current law, the time a person has to bring an action (the statute of limitations) for an injury resulting from being sexually assaulted or subject to incest as a child, or from being subject to sexual contact by a member of the clergy as a child, is any time before the injured party reaches the age of 35.
This bill removes the time limit for bringing those actions. In addition, the bill applies this unlimited time period to a broader range of actions. Under the bill, there is no limit on the time a person has to bring an action for injury resulting from being subject, as a child, to any sexual contact by an adult or by an adult member of the clergy. The bill also revives any cause of action that was barred by the present statute of limitations and allows an injured party to bring that action for his or her injury within three years after the effective date of the bill.
Under current law, when a sexually violent person is placed on supervised release, he or she may not be placed within 1,500 feet of a school, child care facility, place of worship, park, or youth center. This bill adds a location in which a home school program is provided to the list of sites from which a sexually violent person’s placement must be at least 1,500 feet.
Under current law, a prosecution for second-degree sexual assault must be commenced within ten years of the commission of the assault. This bill extends the period so that a prosecution for second-degree sexual assault must be commenced within 20 years of the commission of the assault.
The Supreme Court’s recent decisions in Gundy v. United States and Paul v. United States (or, more precisely, Justice Gorsuch’s dissent in Gundy and Justice Kavanaugh’s “statement” in connection with the denial of certiorari in Paul) has triggered a panic among the liberal community that, in the words of one commentator, the Supreme Court is about “to slash agencies’ regulatory power,” “toss out decades of settled law regarding the power of agencies to regulate,” etc. The cause of this panic is that the five conservative justices have all signaled a willingness to reexamine the “nondelegation” doctrine, which is legal-speak for the principle that Congress cannot “delegate” its legislative responsibilities. Since almost all of the modern regulatory state is based on Congress giving agencies the power to regulate, for 85 years the Court has uniformly upheld broad grants of such authority because Congress had provided “an intelligible principle” to guide the agency’s rulemaking, and by which courts can judge whether the agency’s action is within the scope of its authority.
There is no point debating the magnitude of this “threat.” When the Court takes the appropriate case, we will see what these justices have to say. But I think it is important to point out two things: First, while liberals are concerned because Congress frequently delegates in order to give agencies the flexibility to respond to changing circumstances (a good thing), much of the delegation results from Congress’s lack of time and resources to get into the nitty-gritty (a bad thing), from political gridlock (ditto), and from wanting credit for enacting the law (think Clean Air Act)—but passing the buck and avoiding blame for any particular regulation (also a bad thing). Second, when Congress does not have the time or resources to get into the details—or can’t reach agreement on the particulars, or wants someone else to take the heat for the implementing regulations—it throws up its hands about what it wants to achieve and how to achieve it, in effect saying “leave it to the agency and the courts to decide all that.” Any of these bad causes results in situations everyone should be worried about.
Take Gundy, which dealt with the federal sex-offender registry (SORNA). After deciding how to apply it to future offenders, Congress left it to the Attorney General as to how it should apply to previously-convicted offenders. (This is why this was not a “delegate to give flexibility to adapt to changing circumstances” situation, because nothing would be changing about previously-convicted offenders.) As Justice Gorsuch pointed out in his dissent, Congress made it a felony (punishable by up to ten years in prison) for those offenders to fail to register in accordance with the Attorney General’s regulations, and:
[f]or six months after SORNA’s enactment, Attorney General Gonzales left past offenders alone. Then the pendulum swung the other direction when the Department of Justice issued an interim rule requiring pre-Act offenders to follow all the same rules as post-Act offenders. A year later, Attorney General Mukasey issued more new guidelines, this time directing the States to register some but not all past offenders. Three years after that, Attorney General Holder required the States to register only those pre-Act offenders convicted of a new felony after SORNA’s enactment. Various Attorneys General have also taken different positions on whether pre-Act offenders might be entitled to credit for time spent in the community before SORNA was enacted.
In other words, it was quite possible that someone could get 10 years in prison for something that had been legal under a previous Attorney General and was to be legal again under the next one–or legal again under the current one if he were to change his mind the following week. Hands up if you think it is a good idea for Bill Barr’s Justice Department to have the authority to decide what is and is not a felony.
The second thing worth noting is that the nondelegation doctrine is the basis for ongoing litigation against some of the Trump Administration’s worst impulses. For example, in Center for Biological Diversity v. McAleenan, plaintiff environmental organizations sued (unsuccessfully) the Department of Homeland Security after DHS exercised its authority under the Illegal Immigration Reform and Immigrant Responsibility Act and subsequent statutes, which gave DHS the power to waive not only the environmental laws at issue in that case, but all applicable federal laws, whenever DHS deems it necessary to get border walls built. (And, at the same time, Congress limited federal court jurisdiction to review those waivers.)
Apropos of border walls, the nondelegation doctrine is also a central feature in El Paso County v. Trump, where plaintiffs are challenging the President’s hysterical proclamation that there is a National Emergency at the southern border because of drug smuggling and illegal immigrants. (Full disclosure:I am part of the legal team representing El Paso County and the Border Network for Human Rights in that case.) We’re arguing that the National Emergencies Act (NEA) violates the nondelegation doctrine because the “NEA does not define ‘emergency’ or expressly specify any ‘intelligible principle’ to guide the President’s ‘emergency’ determination.” This allows the President to proclaim anything he wants to be an “emergency” and invoke special powers under more than 100 other federal laws, which in this case included pilfering billions of dollars that Congress expressly appropriated for other purposes.*
We should all be concerned about what the Court will do with the nondelegation doctrine. But it is more important to understand that much of the vast regulatory authority that Congress routinely delegates to agencies results from problems with how Congress operates, and that there are instances of delegation that, regardless of political affiliation, we should all be worried about.
*The district court did not rule on this issue, instead holding that the 2019 Consolidated Appropriations Act barred the President from using the pilfered funds, and subsequently enjoining their use for border wall construction.
The narrow scope of Mr. Weinstein’s upcoming criminal trial only heightens the significance of the civil settlement, likely to be the only legal recourse for many of the women who said he abused them. Because some alleged victims have declined to participate in a criminal trial, or have complained of offenses that are not criminal or fall outside the statute of limitations, the court case in New York centers on just two people.
On Oct. 22: A sergeant called a black man “boy.” The man responded by attacking the officer, leaving him “severely beaten.” The facility went on lockdown until Oct 25.
On Oct. 29: Four days after coming off lockdown, another guard provoked another black man by calling him the n-word. He was also assaulted, but less severely. The facility went on lockdown again until Nov 5.
On Nov. 8: A guard was stabbed during program services. The facility has been on lockdown, which means that all of the people inside are deprived of their basic rights and fundamentals of human dignity, from Nov. 8 to the date of this writing (Dec. 8). This is obviously a form of “collective punishment.”
On Nov. 19, Makda Fessahaye, the head of the DOC’s Division of Adult Institutions (DAI), spoke on a panel at Marquette University. After the panel, she told me she was investigating these incidents but had been told that all three staff members “were blindsided.”
However, prisoner advocates insist “nobody is just randomly assaulting staff” and argue that, given Wisconsin DOC’s history of taking abusive guards’ words at face value, however unbelievable, they are demanding thorough investigations. Forum For Understanding Prisons (FFUP), an inmate advocacy organization, has also filed open records requests for shift logs and any “inmate complaints” filed over the last month in an effort to contact the people most directly involved.
This is an exceptional article, with a number of very informative links within it. I know that it isn’t registry related, but it is a concern for anyone with someone incarcerated in Wisconsin. This is some serious stuff they describe here and as we all know, if it is happening here and it is happening in our youth facility it is happening in EVERY SINGLE DOC INSTITUTION IN WISCONSIN.
At the heart of the majority of cases is the latest iteration of the Sexual Offender Registration and Notification Act, or SORNA, which evolved out of the original Megan’s Law. When SORNA took effect at the end of 2012, it greatly expanded the law, increasing the list of offenses subject to registration and notification — including a handful that are not sexual in nature — and imposing more stringent registration and notification rules.
The state’s Megan’s Law registry more than doubled, growing from about 10,000 people to just over 20,000, according to the Pennsylvania State Police, which oversees the registry.
Marcus said that after “decades of trial, mountains of empirical evidence and close to one million people around the country being denied their rights to liberty and their reputation,” no hard evidence exists that the public is any safer or that assaults have been prevented.
One of the most closely-watched cases before the high court deals with requirements under the current law for people classified as “sexually-violent predators,” those who have committed the most serious offenses and who are considered to have a high likelihood to reoffend. They are subject to lifetime registration, as well as lifetime counseling and community notification.
The case centers on whether those rigorous registration, notification and counseling requirements constitute unlawful punishment.
Brought by a Butler County man who pleaded guilty to statutory sexual assault and corruption of minors, the case targets the state’s little-known process for assessing sexual offenders. A board of psychiatrists, psychologists and criminal justice professionals in Pennsylvania make recommendations to the court about whether someone should be classified as a sexually violent predator.
Since 2000, the board has completed 20,260 assessments, according to state officials. In 6,027 of those cases, it has recommended that the offender be classified as a sexually violent predator, although the courts have not always agreed.
“This is the case that will dictate how we operate going forward,” said Meghan Dade, the board’s executive director. “This is a pivotal moment in Pennsylvania.”
