Desperately Smearing Amy Coney Barrett

Slate has started a new series, “Trump Bench,” in which Mark Joseph Stern profiles the records of prominent Trump judicial nominees. In his latest installment for this series, Stern examines the “appalling record” of Judge Amy Coney Barrett, and it’s a mess. To be clear, the mess is not Barrett’s record, but Stern’s treatment of it. Stern’s account is misleading and inaccuarate, and not remotely fair-minded.

I was going to detail some of the many problems with Stern’s piece, but Ed Whelan beat me to it. In two posts, here and here, Whelan catalogs the numerous instances in which Stern omits relevant context, mischaracterizes cases, and seeks to unjustly smear Barrett at every turn. Taken as a whole, the critique is fairly devastating.

If Stern responds to Whelan’s critique, I’ll post a link, but based upon my familiarity with several of the cases under discussion, and Barrett’s record more broadly, I doubt there’s much of a defense to make.

In the meantime, for those who want a fairer picture of Judge Barrett, I’d suggest going straight to the source, reading her opinions and law review articles, and perhaps watching this lecture that she gave at the Case Western Reserve University School of Law last year.

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Unanimous 5-Judge Federal Circuit Court Opinion

From U.S. v. Alcantara (2d Cir. 2005):

Before: WALKER, Chief Judge, CARDAMONE, WINTER, STRAUB, and LAY,[*] Circuit Judges.

[*] The Honorable Donald P. Lay, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.

Five judges? How did that happen? Federal courts of appeal generally sit in three-judge panels; sometimes only two judges are listed, for instance if one of the judges couldn’t participate; some opinions are one-judge decisions on certain motions; and of course there are en bancs that generally include all the judges in the circuit (except in the Ninth Circuit, where those generally have only 11 of the judges), but this isn’t an en banc.

Post your answer in the comments, without peeking at the opinion. Or, if you just want to learn the answer for yourself, see here and here. I imagine this must have happened before, but it’s the first time I’ve seen it.

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The Return of the “Faithless Elector”

As I predicted here, on Friday the Supreme Court granted certiorari in two consolidated cases (Chiafalo v. Washington (10th Cir.) and Colorado v. Baca (CO Supreme Court)) raising a significant question of constitutional law that the Court has never squarely addressed before: whether the Constitution, which expressly grants plenary power to the individual States to appoint presidential electors (Art. II sec. 1), permits those States to direct presidential electors to vote for a specific presidential candidate and to enforce those directions via ex post punishment, or whether, conversely, electors have a constitutionally-guaranteed right to use their discretion in deciding who to vote for.

Historian Michael Rosin and I, ably assisted by Michael Donofrio and Bridget Asay of the Stris & Maher law firm in Montpelier VT, submitted an amicus brief urging the Court to grant cert [available here], as well as amicus briefs on the merits in both of the cases at the appellate stage [available here].

So I’m naturally delighted that the Court agreed to take on the two cases.  With the presidential election of 2020 looming just over the horizon, and given all of the attention, good and bad, that the Electoral College scheme has gotten over the past few years, it is, clearly, a question of some importance.

Our briefs have focused on a single, narrow point: that while we all have come to regard presidential electors as performing a purely formal, ministerial function—a “kabuki democracy”-style ceremonial ratification of the results of the presidential election—it is hard to deny that the Framers had something very different in mind. As Justice Jackson put it (in dicta) some time ago:

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, is that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation’s highest offices.” Ray v. Blair, 343 US 214, 232 (1952).

Hamilton’s Federalist No. 68 is the primary, though hardly the only, support for this view of the “original expectation” of the Framers. Hamilton stressed the importance of having the president elected by “men most capable of analyzing the qualities adapted to the station,” noting that a “small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.”

The original scheme, in short, contemplated that presidential electors would actually elect the president—not merely ratify the results of an election by others. This was part of the Constitution’s remarkable, and remarkably ingenious, method of diffusing and diffracting the power to select officers of the new federal government by distributing that power to different bodies of electors: The “People of the several States” would choose Members of the House of Representatives (Art. I Sec. 2); the members of the State legislatures would choose Senators (Art. I Sec. 3); and a third body, composed of presidential electors who would be appointed by each State “in such Manner as the Legislature thereof may direct,” would choose the President and Vice-President (Art. II Sec. 1 and Amend. XII).

That scheme has been altered, of course, by express constitutional amendment: the 17th Amendment, providing for popular election of Senators. But no such modification has altered the express terms of the presidential election scheme.

I’ve never been particularly skilled at predicting how Justices will vote on particular matters, and I’ll spare you my predictions here.  One of the fascinating aspects of these cases is how difficult it is to situate the issue presented on some simplistic left-right spectrum. There’s an originalism/living constitutionalism axis; strict originalists at the Court may find the evidence of the historical understanding of the electors’ role persuasive, or even dispositive, while others more on the steady evolution over time of practices derogating from the original scheme. And there’s a federalism axis; some Justices might be receptive to the argument, which has roots in John Marshall’s opinion in the seminal case of McCullough v. Maryland, that because electors are performing a federal function, the Supremacy Clause disables the States from interfering with their performance of those functions, which others may believe that it is important to buttress the states’ role in the presidential electoral process.

And if the Court were to follow the 10th Circuit’s lead (and mine!) and uphold the principle of State non-interference in elector actions, what then? Will it actually change the manner in which we elect our presidents?

I’ll have more to say about all that as we get closer to a decision.

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Vice President Pence’s Profile in Cowardice

On Thursday, Vice President Mike Pence had an op-ed in the Wall Street Journal praising the “courage” of Republican Senator Edmund G. Ross of Kansas, who broke with his party during the impeachment trial of President Andrew Johnson. Drawing heavily on President John F. Kennedy’s profile of Senator Ross in Profiles in Courage, Pence praises the willingness of a Senator to oppose a “partisan impeachment.”

Yet as Gerard Magliocca explains at Balkinization, there was nothing particularly courageous about Senator Ross’ vote. Rather, Magliocca explains, Ross was something of a “coward.”

The real profiles in courage were the House impeachment managers, led by John Bingham, who fought body and soul for the Fourteenth Amendment against President Johnson’s determined opposition. (Go and read Bingham’s closing argument in the trial to see real courage.) Saying this in 1957, when Profiles in Courage was published, would have been highly controversial, so JFK took the easy way out. (He was also running for President and wanted the support of segregationist Democrats.)

Could a person of principle have voted for President Johnson’s acquittal in 1868? Probably. Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single out, one of those men? Definitely not. He was bribed for his not guilty vote. Ross was promised lots of federal patronage if he voted in favor of the President. Word of this got out after the trial ended and Bingham wanted the House of Representatives to investigate. Realistically, though, there was nothing that the House could do short of impeaching Johnson a second time, which was impractical at that point.

There are serious arguments that most of the charges upon which the House impeached President Johnson were mistaken, particularly insofar as they centered on Johnson’s violation of the (almost certainly unconstitutional) Tenure in Office Act, which purported to prevent the President from removing certain government officers without Senate approval. Yet there is little reason to believe a principled concern for protecting executive power motivated Senator Ross, and there were many sound reasons to urge President Johnson’s impeachment, particularly his efforts to undermine Reconstruction.

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Chefs in Ireland Are Fighting a Mandatory Menu Calorie Count Law

Some of Ireland’s leading chefs are protesting a proposed mandatory restaurant calorie labeling law, with several of the country’s top chefs saying they’ll defy the law should it take effect.

Ireland’s health ministry has toyed with the idea of menu calorie labeling for some time. But reports last week indicated the government would press on with legislation after reviewing public comments on its proposal (which the government also did in 2015).

“I’ll pay whatever fine I have to, but I will never put calories on my menu,” chef Wade Murphy—whose award-winning restaurant 1826 Adare serves sumptuous and authentically Irish dishes such as Cured and Marinated Organic Irish Salmon and Wild Irish Venisontold the Irish Times last week. “Never.”

The Times reports other “chefs and restaurateurs across the country” are outraged. “We won’t be doing it, as stated many times before, we will NEVER put calories on the menus,” famed Dublin chef Eamon O’Reilly, holder of two Michelin stars, said in a tweet that also dubbed the plan “nonsensical, ridiculous & totally impractical.

The lead lobbyist for pub owners in Ireland, Donall O’Keefe, warns the proposal is an “administrative nightmare…. [that] will add to costs.”

The leading Irish restaurant lobby, the Restaurants Association of Ireland (RAI), has opposed plans for mandatory calorie labeling on restaurant menus for years. The RAI says testing menu items and revising menus will cost the average restaurant around $10,000.

Adrian Cummins, head of RAI, says the group’s members are “totally opposed” to the plan. He details the reasons behind RAI’s position here. They include dramatic compliance costs, a shortage of Irish chefs, and the fact calories counts alone, without context, “are not a good measure of healthy menus.”

Cummins calls the calorie mandate “nanny-statism at its best” and says his members will leave the country if forced to comply with the law.

Leading Dublin chef Gaz Smith, also an award winner, penned a spectacular op-ed last week in the Irish Daily Mail blasting the proposal.

“This seems like another Nanny State box-ticking exercise by the government with no real thought on genuine implementation, the realities of the costs and time of getting it accurate, and the burden it will place on smaller independent restaurants and cafes that are already swamped in regulations, legislation, VAT increases, and the ever-soaring insurance costs,” Smith writes.

As the Irish Times notes, Smith has had a little fun with the proposed mandate by placing a warning on his menus that each dish he crafts contains somewhere between one and 1,000,000 calories.

While that latter figure is a joke, the Irish are indeed among the world’s top consumers of calories. Many are obese. The government’s plan is intended to combat that problem.

But research consistently shows menu calorie labeling is not an effective tool for combating obesity. If menu labeling rules are “grounded in science,” I wrote in 2017, “that science is shoddy.” As I detailed in a 2014 column, “research show[s] mandatory menu-labeling doesn’t work—and may even be counterproductive.”

Last week’s Irish Times report suggests the calorie-labeling scheme is supported by research, citing a study that purportedly found “people order less and consume fewer calories when information on calorie content is included on menus.” That study, by researchers from Dublin’s Economic & Social Research Institute (ESRI), concluded what some others have found: Consumers who noticed calories printed after a menu item “ordered and ate fewer calories.”

But ESRI isn’t a neutral observer. Reports last year indicated ESRI had been “drafted in to help with the legislation” on calorie counts. What’s more, while the study details I reviewed don’t include data about what percentage of people who took part in the study actually noticed the calorie counts, the study’s results appear to track closely with thoroughly unconvincing earlier research I debunked in a 2016 column: “Contradictory studies that have touted menu labeling tend to be filled with qualifiers, along the lines of a small percentage of the small percentage of consumers who self-reported that they noticed calorie information on restaurant menus reduced their calorie intake by a small amount.” (To be fair, the Irish study was based on actual research observations rather than consumer self-reporting.)

Last year Simon Harris, Ireland’s health minister, said the government would soon push for calorie labeling. “I would hope that businesses across the country will, by their own initiative, lead on this issue,” Harris said at the time. Irish businesses are doing just that—though probably not in the way Harris intended. Good for them.

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Sex Offender Laws Are Broken. These Women Are Working To Fix Them.

Sandy Rozek is the polar opposite of what comes to mind when you hear the word activist. A 78-year-old great-grandmother and retired high school English teacher who lives in Houston, Rozek is not woke, doesn’t post on Twitter, and spearheads a movement you’ve probably never heard of.

Rozek works with the National Association for Rational Sexual Offense Laws (NARSOL). She is one of several women who lead an effort to oppose the unjust, irrational, and ineffective laws that continue to punish sex offenders long after they have served their time.

All 50 states have sex offender registries, and the U.S. Justice Department combines them in a single national database. The information, which is available online to the general public, covers nearly 1 million people, whose crimes run the gamut from streaking to rape. In addition to the stigma imposed by that electronic pillory, registration comes with a panoply of restrictions that dictate where people can live and work, when and where they are allowed to travel, and even whether they’re allowed to pick up their own children from school or take them to the park.

Reform organizations cite four major reasons for scaling back or eliminating the registry. They say it’s unconstitutional, imposing ex post facto penalties that deprive registrants of rights everyone else enjoys; it’s unscientific, relying on discredited beliefs about the danger that registrants pose; it’s unforgiving, disrupting people’s lives decades after they’ve completed their sentences; and it’s undiscriminating, burdening not just the registrants themselves but their families and communities.

In this #MeToo moment, when everyone seems focused on holding men accountable for their sexual crimes, the civil rights of people who have committed such offenses tend to get short shrift. But both movements are spearheaded by women who are determined to change the national narrative about sex crimes.

Most of the registry reformers are in their 60s or 70s, with grown children and grandchildren. Unlike the founders of the #MeToo movement, they have not been featured in glossy magazine articles lauding their courage. But make no mistake: These women are brave. Many have been shunned by their friends and family because of their stances. Speaking out against the registry means aligning yourself with modern-day lepers, people who are viewed with fear and disgust by the vast majority of Americans.

Never-Ending Punishment

Like many others in the movement, Rozek became a registry reformer because of a personal connection. About a decade ago, one of her friends was convicted of having an inappropriate sexual relationship. While it didn’t put her on the registry, she served a term of probation and had to complete a treatment program. “I really got started with it because of the treatment angle,” Rozek says. “In Texas, sex offender treatment is a joke. They don’t treat. They monitor. They intimidate.”

When Rozek started volunteering at NARSOL, she was 65. Her first task: scouring the internet for articles on sex offenders and using the comment sections to post corrections. She also penned the occasional op-ed. Eventually she became NARSOL’s communications director, writing for the website, helping to run its committees, and organizing its conferences. She spends up to eight hours a day on the work, all unpaid.

As a Christian, Rozek “just cannot accept that people cannot be forgiven.” If a sex offender has “served his time, and if he’s trying his best to be a decent human being now and wants to be a law-abiding citizen,” Rozek says, “we need to not throw roadblocks in his path….If it was 30 years ago, and the person did everything required, has fulfilled every legal obligation, has been free and clear of any involvement with law enforcement for 30 years, has established a family, has been living with this family for years now, and then all of a sudden he cannot live with them anymore [because of residence restrictions ], that is a horrible destruction to families.”

Although most of the people on the registry are men, most of the people running the reform movement are women. Nobody really knows why, but there are a few theories.

“Women, in our culture, pull together the families,” says Emily Horowitz, a professor of sociology at St. Francis College who is an expert on sex offender registries. “That’s a lot of the reason why women fight so hard. I think men are somewhat hesitant to weigh in on something that’s about sexual violence, because it could be viewed as like, ‘Oh, you’re defending men who hurt women.'”

NARSOL, which was founded in 2007 and has branches in 19 states, is the oldest and largest sex offender law reform organization. It is joined by three other national groups, all led by women, most of whom have a friend, son, or husband on the registry.

The crimes that will land someone on the list vary by state, but they include not just assaultive crimes such as rape and child molestation but also nonpredatory offenses such as public urination, promotion of prostitution, and possession of child pornography. Children as young as 9 have to register in some places. A handful of states require people convicted of any sex offense to register for life—and even after death.

In many states, registration comes with residence restrictions. Under those local and state laws, registrants typically are banned from living within 1,000 or 2,000 feet of schools, parks, churches, or day care centers. The practical impact of such exclusion zones can be so dramatic that registrants end up homeless. In Miami, dozens of them live under a bridge.

Several states also prohibit registrants from visiting locations such as parks, schools, community pools, and day care centers. Sometimes they even restrict where people can work. In Alabama, registrants are not allowed to be employed within 500 feet of “a playground, park, athletic field or facility, or child-focused business or facility.” Such rules compound the problems registrants already face in finding jobs. Many businesses don’t want to hire them, especially since some states require that employers of sex offenders also be listed in the registry.

‘The Key Word Is Rational

The national sex offender registry was created in 1994 by a law named after Jacob Wetterling, an 11-year-old Minnesota boy who was kidnapped and murdered in 1989. That law required states to create registries listing people convicted of sexually violent offenses or crimes against children. Unlike today’s databases, this registry was visible only to law enforcement agencies.

Two years later, the law was expanded after 7-year-old Megan Kanka was brutally murdered by a sex offender in New Jersey. Megan’s Law, passed in 1996, made registries accessible to the general public as part of a community notification mandate. In the 2003 case Smith v. Doe, the U.S. Supreme Court upheld sex offender registration, deeming it a form of civil regulation rather than criminal punishment.

That decision encouraged the expansion and proliferation of laws targeting sex offenders. “I call them sex offense registration laws on steroids,” says Southwestern University law professor Catherine Carpenter. “We’re dealing with laws that have no bounds, because the Supreme Court said that they were civil regulations.” From 2003 to 2012, Carpenter says, the number of covered offenses increased “dramatically,” and so did the length of registration. Those changes, she notes, were accompanied by “egregious collateral consequences,” such as residence restrictions.

In 2006, the Sex Offender Registration and Notification Act (SORNA) further tightened restrictions on sex offenders, requiring some to register for life and mandating that they keep their addresses up to date or face felony charges. Today all states require adults convicted of sex crimes to register, and 38 states require some children to register as well. When “we literally started putting kids on the public registry,” Horowitz says, that showed “it’s not really about protecting children.”

The official goal of registering sex offenders is preventing sexual assault, but experts don’t think it does that. “The premise of adult registration is you’ve demonstrated your dangerousness, and we think that means you’re going to be a future danger,” Carpenter says. “The empirical evidence does not support that.”

The idea that sex offenders are especially likely to reoffend is a myth. A 2012 meta-analysis of sex offender recidivism rates published in Criminal Justice and Behavior found that most offenders’ likelihood of committing another sexual offense over a five-year period was around 7 percent. A study of sex offender recidivism in Connecticut found an even lower rate: 3.6 percent. “People who commit sex offenses have the lowest recidivism rate of almost any crime besides murder,” Horowitz says. A 2003 study found that in Illinois, about 37 percent of those convicted of nonsexual assault will be arrested for the same offense within five years, while only 6.5 percent of sex offenders and 5.7 percent of murderers will be rearrested for the same offenses.

Not only that, but data from the Justice Department’s National Crime Victimization Survey indicate that more than 90 percent of sex offenders are people known to the victim, such as relatives, friends, and coaches. And according to a 2008 study of sex offenders in New York, around 95 percent of people arrested for sex offenses do not have prior records for this sort of crime, meaning they would not be listed in a registry.

“The registry wasn’t developed out of research,” Horowitz says. “It was developed out of emotion and fear, which is a recipe for disaster in public policy.”

Rozek and other leaders of the registry reform movement want the laws to be grounded in science. “It’s the National Association for Rational Sexual Offense Laws,” Rozek says, “and the key word is rational. Something that is rational is based on science, based on fact, based on evidence. The registry isn’t, and certainly none of the laws coming out of the registry are based on any evidence or any science.”

‘What Would Atticus Do?’

While Rozek became a reformer after her friend was convicted of a sex crime, it was a chance encounter that led Janice Bellucci to the movement. One day in 2011, Bellucci, a 67-year-old California attorney who spent most of her career in aerospace law, was talking to Frank Lindsay, a water treatment specialist who was fixing her home’s reverse osmosis system, when he mentioned that he had written a book. “Quite frankly,” she says, “reading his book changed my life.”

Bellucci found out that in 1979 Lindsay had committed a sex crime against a child under the age of 14, a crime for which he spent a year in jail, nearly all of it on weekends, thanks to a work furlough program. More than three decades later, he had not reoffended, but he was still subject to legal restrictions and potentially deadly threats. “A stranger broke into his home and tried to murder him because he was on the Megan’s Law website,” Bellucci says. “He escaped from his own house after being hit a couple times with a hammer. I just couldn’t believe that any group of people in our country today [was] being treated that way.”

On a sabbatical from her work at a California nonprofit, Bellucci couldn’t get the sex registry out of her mind. “This issue kept popping up, kind of like a jack-in-the-box,” she says. “And finally I sat down with myself, and I said, ‘Why did I go to law school?’ It was the movie To Kill a Mockingbird, and the character Atticus Finch. I’m like, ‘What would Atticus do?'” The answer seemed obvious to her.

Bellucci initially tried to interest the American Civil Liberties Union of California in the issue. “They basically said [they couldn’t help] because they’re afraid that if they became known as sex offender attorneys, their funding would disappear, which I think is a very cowardly position,” she says.

Bellucci’s children were adults, she was unmarried, and she decided she could “do anything I want to do.” So she founded the Alliance for Constitutional Sex Offender Laws (ACSOL). To this day, a needlepoint of “What Would Atticus Do?” sits on her desk, next to a Ruth Bader Ginsburg action figure.

Like many in the movement, Bellucci believes sex offender restrictions are unconstitutional. As a lawyer, she could do something about that, but she did not have a lot of resources. So she and the few early members of ACSOL decided to go after “low-hanging fruit”: Halloween-related restrictions in California.

In Simi Valley, Bellucci learned, sex offenders were required to post signs on their front doors during Halloween, alerting neighbors that they were on the registry and warning trick-or-treaters to stay away. She sued the city, arguing that the requirement was a form of compelled speech prohibited by the First Amendment. She won.

The Halloween signs are a good example of sex offender policies that have no basis in fact. A 2009 analysis of 67,000 sex crimes against children committed by people other than their relatives, reported in the journal Sexual Abuse, found “no increased rate on or just before Halloween.” The researchers concluded that “these findings raise questions about the wisdom of diverting law enforcement resources to attend to a problem that does not appear to exist.”

From the beginning, it was difficult for Bellucci to convince people that sex offenders were a group worth fighting for. But one way to make them more sympathetic was to show the impact that laws aimed at them had on their families.

Bellucci tells me about a young father on the registry who was not allowed to see his sick baby in the hospital. “This infant possibly was going to die within 24 hours,” she says, “and they were going to have this big meeting at the hospital to come up with some plans for how they were going to treat the little boy. And they’re like, ‘You can’t come to the meeting, because the meeting is going to be held at the hospital.'” After some legal maneuvering, Bellucci managed to get the meeting moved so the father could participate.

‘This Is a Labor of Love’

Small victories like that one motivate Bellucci to work 50 to 60 hours a week. “The alliance pays me a whopping $1,000 a month,” she says. “So this is a labor of love.”

In 2016, Bellucci moved from Los Angeles to Sacramento to be close to the state capitol. “For a very long period of time, they kept passing new sex offender laws,” she says. “And guess what? Nobody was there to oppose them. But about six years ago, we started showing up for hearings, and we’re saying, ‘No, this is unconstitutional, and these are the seven reasons why.'”

The Halloween lawsuit was only the beginning of Bellucci’s fight. She began going after California’s so-called proximity restrictions, local ordinances that prevented sex offenders from doing ordinary things like visiting dog parks or picking up their kids from school. Those rules “really had this chilling effect,” Bellucci says, “because the restrictions were different from one city to another, and they were never posted. It might be OK to go to a dog park in one city, but it’s not OK in another city, and there were no signs to tell you.”

The crazy quilt of restrictions made people worry about “missing Thanksgiving dinner with Aunt Sally,” Bellucci says. “They were afraid to travel from one city to the next. People felt like rats getting tested. No matter what you did, you were going to get an electric shock. So many people just stay in the same place and shiver and hope nobody will zap them with electricity.”

Bellucci says lawsuits are a last resort. Her organization usually writes letters first, telling a city its sex offender law is unconstitutional or warning that another city has been successfully sued over the same kind of law. Sometimes the letters work. But when they don’t, Bellucci sues. When she wins a lawsuit, she uses her share of the damages to fund other cases.

Like Rozek, Bellucci wants the registry to be based on science and reason. But that’s hard to accomplish, she says, because when people “hear the term sex offenders, they just panic. They’re thinking of the worst sexual assault that you can ever think of.” It is therefore difficult for them “to absorb new information or to analyze the information that’s in their brain.”

To combat that emotional response, Bellucci assures people that “we believe all children should be safe. We’re not here to unleash a bunch of sexual predators on the public.” Her message, she says, is that “the registry gives people a false sense of security,” because “they’re looking in the wrong direction,” given that “more than 90 percent of the perpetrators are not on the registry.”

‘I Know I’m Not the Only One’

Bellucci is admired by other reformers because she didn’t join the movement to defend her brother or father or child; she did it because she saw an injustice. “The fact that she doesn’t have what we call ‘skin in the game’ [makes her] more amazing,” says Vicki Henry, president of Women Against the Registry (WAR). In contrast, Henry, 71, became an activist because her son is on the registry for downloading and distributing child pornography. He was in the Marines when he was caught in 2007. A military psychologist tied his use of child pornography to sexual abuse by his father.

“I thought I was losing my mind,” Henry says. “When I got my feet back under me a little bit, [I thought] there’s got to be other people that have gone through this. I know I’m not the only one.”

Henry found Daily Strength, an online support group that hosted a subgroup called Families of Registrants, and then found NARSOL. She joined Women Against the Registry, which was a part of NARSOL at the time, and became its president in 2011. Around that time, WAR broke off —it wanted to do more protesting than NARSOL was comfortable with. Now Henry says she volunteers about 12 hours a day, seven days a week.

“I was pretty much raised in church,” says Henry, a Southern Baptist. “My kids were raised in church. We were taught to help other people.”

Henry describes WAR as more aggressive than NARSOL. “We’re more challenging, in your face, the ground pounders,” she says. “We protest. They don’t.”

WAR’s slogan is “fighting the destruction of families,” and Henry is speaking from firsthand experience. Like many on the registry, Henry’s son faces harassment and employment problems. Recently his girlfriend’s mother found out he was on the registry and called his employer. The next day, while he was filling out paperwork in the office, he overheard one of his bosses talking vividly about shooting him in the head with a 9 mm pistol. When Henry’s son confronted him, the supervisor said he was just joking. After he filed a complaint with the human resources department, Henry says, he was suspended for three days because of a minor mistake he had made on the job.

Soon after that incident, Henry’s son had to move out of the home he shared with his girlfriend and his children because of a restraining order that her ex-boyfriend obtained against him. Distraught, he moved back into his mother’s house, where he was caught with child pornography again and rearrested.

“He feels guilty,” Henry says. “He feels like I’m giving up my life because of him. And it’s like, ‘No, no, no, you have to understand. You were abused. I didn’t know that. You were sick.'”

‘Let Them Live in Peace’

Henry spends much of her time talking to lawmakers, describing the deleterious effects that registration has on families. In 2019, Henry traveled to Jefferson City, Missouri, accompanied by a registrant and WAR member named Sarah, to speak to legislators. Henry coached Sarah to be as open as possible about the registry’s impact on her family.

Together, Sarah and Henry went to Missouri state representative Tony Luetkemeyer’s office. After chatting for a few minutes, Henry told Sarah to pull up her pant leg, revealing her GPS ankle monitor. “She said, ‘I’ve worn this for 10 years,'” Henry recalls. “‘I have a family. I have a 5-year-old son and [an older] son. And I’m not able to go swimming with them. I’m not able to get in the boat with [them].’ And he just sat and stared at her, like, ‘Oh, my gosh.'” At the time, the Missouri legislature was considering a bill that would have prohibited some sex offenders from “being near athletic facilities used primarily by children.” As a result of that encounter, Henry says, “the bill was killed.”

Registries are all about ostracism, Henry argues, and GPS monitors are a prime example. “We’re not saying that people shouldn’t be adjudicated,” she says. “But once they’ve been adjudicated [and] paid their debt to society, let them live in peace with their families. Don’t put so many barriers in front of them.”

Henry is not the only registry reformer who joined the movement because her son was caught with child pornography. Rita, who did not want her last name to be used, had a similar experience. Eleven years ago, Rita was having dinner with her husband and 26-year-old son, who was acting strangely. “I knew there was something wrong,” she says. “I just kept asking him and asking him, and then he finally said it.”

Rita’s son told her that a few weeks before, around 1 a.m., he had heard banging on his apartment door. When he opened the door, he was face to face with multiple FBI agents. “He didn’t know what they were looking for,” Rita says. They were serving a search warrant based on evidence that he had downloaded child pornography on a peer-to-peer network.

As he told his mother this story, “he was shaking,” she says. “I almost passed out….I couldn’t believe that you could go to prison for what you look at.” She and her husband sat there stunned. Their son said he had seen a lawyer, and he was facing time in federal prison. He ended up serving a little more than six years.

“It was just extremely difficult to get through those days,” Rita says. “I knew in my heart I had two choices: Do I lie down and die, or do I do something? And in my mind, something was better than nothing. We decided we would get involved, just to try and bring some reason to these laws.”

Rita’s husband searched online and discovered the organization that eventually became NARSOL. In 2009, they traveled from the small New York town where they live to Boston for their first meeting. “It was life-changing for me to meet other people who understood the overwhelming shame and punishment that we were looking at,” Rita says. “And those people are still my dearest friends.”

A few years later, Rita founded Caution Click, an organization that focuses on the legal treatment of people arrested for viewing child pornography. She strives to raise awareness among teenagers and their families so they don’t become sex offenders by sexting or looking at something they’re not supposed to.

‘I’d Still Have a Normal Life’

Another Caution Click member is the mother of Alyssa, a 26-year-old woman who is on the registry for having what she says was consensual sex with a 15-year-old boy when she was 19. At the time, Alyssa, who did not want her last name to be used, was a teenaged mother attending high school in a small town in New York. After a few encounters with the boy, she broke off the relationship and blocked him on social media.

Soon afterward, the father of Alyssa’s son sued for custody, citing her relationship with the 15-year-old as evidence that she was an unfit mother. Alyssa was convicted of misdemeanor sexual misconduct. She didn’t have to serve jail time, but the conviction put her on the registry for life.

“I have a lot of remorse for what I did,” Alyssa says. “I cry about it [and] think about it constantly. I wish I could take it back every single day, because maybe if this didn’t happen, I’d still have a normal life.”

Alyssa struggled to find work and a place to live. “I was diagnosed with severe depression,” she says. “I have anxiety issues, major mood swings. One minute I’m happy, the next minute I’m crying, sometimes not knowing why I’m sad or upset.” Sometimes she thinks about killing herself. “I’m literally in a category with people that really, really seriously abuse children, from babies and up,” she says, even though “I legit couldn’t hurt a fly.”

In 2019, Alyssa managed to find a good full-time job in Pennsylvania and a home in a trailer park. She planted flowers in her yard. “I made a whole garden,” she says. “That took a lot of money and a lot of effort and sweat, and it came out so beautiful. I’d wake up and go out on my porch, and I’d just sit there and look at my flowers and breathe in the fresh air. [It was] like being in Pennsylvania, it was a different kind of air. It wasn’t toxic. It wasn’t filled with anything negative.”

The idyll did not last. One day, another resident of the trailer park called the property manager to complain that a sex offender was living there. Alyssa was given three days to leave. “I sat in the car, and I was punching the heck out of my steering wheel, and I was screaming,” she says. “[You’re] doing something good with your life finally, and then you get ripped away from it. So I completely had a mental breakdown.” She packed clothing in garbage bags and took her kids back to New York to live with her mom.

Alyssa hasn’t been able to find a job in New York, and she can’t move out of her parents’ house because, as a sex offender, she does not qualify for low-income housing. She isn’t even legally allowed to take her children to the playground. “Sometimes I risk it,” she says. “I bring [my son] to the park anyways. Listen, if you want to arrest me, that’s fine, but just know I wasn’t doing anything. I wasn’t looking at nobody. I wasn’t touching nobody. I’m just trying to let my kids live their lives.”

What Would Jesus Do?

Of all the reform organizations, ACSOL probably has had the most legislative impact. Through lawsuits and warning letters, Bellucci and her volunteers have managed to eliminate nearly all of California’s local ordinances making certain places, such as parks and schools, off-limits to sex offenders. They have also filed 31 lawsuits challenging local ordinances that limit where offenders can live. Nearly all of them have been successful.

Bellucci’s biggest accomplishment so far is helping to create a tiered registry system in California, scheduled to be implemented in 2021. Instead of treating all sex offenders, regardless of their crimes, as equally dangerous, the tiered registry will divide them into three risk categories. It also will do away with lifetime registration for most offenders.

NARSOL, Rozek’s group, has filed successful lawsuits against sex offender restrictions in Maryland and North Carolina. It recently won a victory in Butts County, Georgia, where it sued Sheriff Gary Long for requiring sex offenders to place warning signs in their front yards during Halloween. “Warning!” the signs said. “No Trick or Treat at This Address.” Last October, a federal judge ruled that Long’s signs were unconstitutional, based on the same First Amendment argument that Bellucci had deployed in Simi Valley. NARSOL also filed an amicus brief in Packingham v. North Carolina, the 2017 case in which the U.S. Supreme Court unanimously overturned a state law barring sex offenders from social media.

WAR and Caution Click have fewer legislative goals and focus more on education, so their accomplishments are harder to quantify. But all of the organizations are trying to change the way we talk about sex offenses. When you speak to enough reformers, you notice how they’ve subtly changed the language used in such conversations: Sex offender registry is shortened to the registrychild pornography becomes illicit images or C.P.; sex offenders are registrants. Reformers want people to recognize that individuals on the registry encompass a wide range of offenses, many of which are nonviolent.

Activists argue that changing the language around the registry can reduce the stigma associated with it, one of its greatest harms. Sandralea, a WAR member in Florida who did not want her last name to be used, says her adult son was put on the registry after he was convicted of exposing himself to a 2-year-old—a charge she says was false. The church she’d raised him in, where she had been a member for 23 years, didn’t want him to come back until the pastor had ministered to him and said that it was OK for him to attend again.

“As a Christian, I find Christians are the worst,” says Sandralea. “I feel like [members of] the Christian community who sit there and profess to be of Christ are the most unforgiving people I’ve ever seen in my life.” She changed churches and started a Facebook newsletter ministry for sex offenders. “I want them to see that they are valued by the Lord,” she says.

I ask Sandralea how she thinks Jesus Christ would have reacted to sex offender laws. “I think that he would find them horrendous, because it’s unforgiving,” she says. “He went and sat with the sinners. He cleaned the lepers. Hello! Sex offenders are the lepers of society today. Jesus would have never treated them the way the Christian community does.”

Bellucci, who is a nondenominational Christian, likewise has found that Christians do not necessarily follow Christ’s example. “I’m really careful who I tell [at] church,” she says. “Some people find out what I do, and they just make sure they don’t sit anywhere near me. They don’t want to talk to me. And you know, at my age, I just let that roll off my back.”

When it comes to family members, Bellucci says, “it’s a little harder.” When she first told her older daughter about her plans for ACSOL, she says, “the first thing out of her mouth was, ‘How could you?’ I just explained it as gently and lovingly as I could: ‘This is what I’m doing. I’m not asking your permission. So it’s up to you. You either accept it or you don’t accept it.’ Over the years—and now it’s been eight years—she’s starting to understand better.”

Henry also sometimes worries about discussing her advocacy. “I put a huge target on my back for being the person I am,” she says. “One guy told me online he would kill me and sodomize my corpse.”

At a recent high school reunion that Henry attended with trepidation, a classmate asked her what she does. “I said, ‘Some of you may not like it, but here’s what I do: My son is on the registry. I advocate for the families.’ I thought, ‘Hey, if you like me after that, it’s fine. If you don’t, I’m not running for homecoming queen or Ms. Senior America. I don’t care.'” The woman who’d asked Henry the question walked over to her and gave her a hug. “You know,” she said, “those people need that.”

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No More Pandemics?

Remember SARS? Back in 2003, this deadly coronavirus had jumped the species barrier (probably from bats) into human beings and was spreading across the world. People could pass along the virus via coughs and sneezes. Some 8,000 cases and 774 deaths occurred before public health measures quelled its spread.

SARS evidently broke out in November 2002 and began to spread through China’s coastal province of Guangdong. By January 2003, a team of Chinese health experts had identified the cause of these new cases of pneumonia as a virus, but that information was kept as a state secret from the public and international health authorities. Effective public health measures were not implemented until April. The epidemic ultimately affected 26 countries, including 8 known cases in the United States.

At the time, I marveled that once samples had been sent to a lab in Canada it took researchers only 6 days to sequence the virus completely. Not only that, but researchers in Hong Kong devised a diagnostic test for the virus in less than two weeks.

What was a breakneck pace of discovery in 2003 now seems quaint in 2020.

Chinese health officials announced on January 2 (just two weeks ago!) that they had identified several cases of pneumonia in December caused by infections from a new SARS-like coronavirus. By January 10, Chinese researchers had posted the fully sequenced genome of the new virus at virological.org, a hub for prepublication data designed to assist with public health activities and research. On January 16, German researchers announced that they had developed and were releasing a diagnostic test to detect infections of the new virus.

So far, 41 people in the Chinese city of Wuhan have been infected; two of them have died. In addition, three cases among travelers to Wuhan have been identified in Japan and Thailand. But the swift implementation of effective public health measures in Wuhan may already have corralled this outbreak.

During the bird flu panic of 2005, I predicted that “as humanity’s biotechnical prowess increases, we may never suffer through another pandemic again.” The rapid response to this outbreak provides some heartening evidence for that claim.

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Gun Rights Groups Sue Over Virginia Governor’s ‘Emergency’ Ban

Virginia Gov. Ralph Northam has issued an emergency executive order barring the bearing of arms in the area where a gun rights rally is scheduled for Monday. The state’s Democratic-controlled legislature is pushing a series of bills restricting gun owners’ rights; among other things, the proposed laws would expand background checks for private gun sales, give localities the power to bar guns from public events, and restrict gun purchases to one a month. The rally—part of a larger “Lobby Day” in which interest groups gather to communicate with the state government—is intended to protest the proposals.

The Virginia Citizens Defense League, Gun Owners of America, and various citizen plaintiffs sued yesterday to prevent the enforcement of this order.

The suit, which notes that open carry has occurred without incident at past Lobby Day events, argues that the order violates marchers’ right to bear arms and right to peaceably assemble. Since carrying weapons has a specific expressive political purpose when one is lobbying against gun laws, the suit also argues that the order violates the First Amendment. And it points to a 2012 Virginia law meant “specifically to prevent and prohibit the governor from in any way limiting or prohibiting the possession of carrying of firearms pursuant to a declaration of a state of emergency.”

That last law includes an exception for orders necessary “to ensure public safety in any place or facility designated or used by the Governor,” and you might expect Judge Joi Taylor of Richmond Circuit Court to have cited that when she rejected the request for an injunction against the ban. Instead, she simply ignored the fact that Virginia has a law specifically designed to prevent an emergency order from doing what this emergency order does. She merely asserts, without arguing specifically why, that in her judgment that 2012 law grants the governor “sufficient deference” to ignore its language about prohibiting firearm possession in a state of emergency.

As the Baltimore Sun reports, Taylor also “cited rulings from the U.S. Supreme Court and other courts that found the Second Amendment right to bear arms is not unlimited. Because of that, she wrote, the gun-rights groups would not ‘suffer an irreparable harm’ sufficient to justify the injunction.”

Northam is using the arrest of three people who were allegedly planning violence at the rally as evidence that his order will prevent violence. For its part, the Virginia Citizens Defense League is claiming that Democrats “want to portray this peaceful assembly of law-abiding gun owners in the worst possible way. They would love for it to degenerate to ‘violence, rioting, and insurrection’ in order to smear gun owners. Has the Democrat leadership actually invited violent groups to attend for the purpose of disrupting our peaceful assembly?”

The plaintiffs have appealed their case to the state’s Supreme Court.

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