New law makes sex offenders hunker down for Halloween

Post-Halloween Update: Christian County arrests 18 sex offenders for not following Halloween law. Eighteen arrests. It’ll be interesting to see if the prosecutor charges these sex offenders and to see whether anybody challenges the law in these cases.

Update: Judge’s ruling complicates enforcement of new Halloween sex offender law. Part of the law ruled “ambiguous.” This still doesn’t address the issue of whether the law applies to most registered offenders.

Friday is Halloween and registered sex offenders have their marching orders under a new Missouri law.

Senate Bill 714 requires that registered offenders shall henceforth, on Halloween:

  • avoid all Halloween-related contact with children
  • remain inside their residences between 5 and 10:30 p.m. unless there is just cause to leave
  • post a sign stating, “No candy or treats at this residence”, and
  • leave all outside residential lighting off during the evening hours.

There is already a lawsuit filed challenging the law:Cape Girardeau County prosecutor responds to sex offenders’ suit over Halloween activities.

Since we haven’t yet seen a Halloween under this law, no one has yet been charged and no one knows if the federal courts will interfere.

One thing that will eventually be raised is that, when this law went into effect, it could not be enforced against anyone. This is because the Missouri Constitution prohibits what is called a “retrospective law.”  A retrospective law is one which creates a new obligation with respect to things that were done in the past. The State cannot impose a new duty on a person whose offense occurred before the duty was imposed. Doe v. Phillips, 194 S.W.3d 833 (Mo., 2006).

The new Halloween law went into effect on June 30, 2008. This would seem to make the new law unconstitutional because it claims to apply to all registered sex offenders. Under the Missouri Constitution, the new law should only apply to persons whose sex offenses occurred after that date.

Of course, that’s just my opinion.  As a practical matter, there will always be some prosecutors who will try to enforce this new sex offender law, without regard to its constitutionality. Politicians shovel this stuff out and the public eats it like ice scream.  Later on, the courts get to play the villain when they toss out the bad law.

So unless a sex offender wants to chance getting charged, he will need to hide out this halloween, just like the new law says. Until someone fights it and wins, the law is presumed to be constitutional.

Missouri Public Defenders now refusing clients

A number of Missouri Public defender offices–including Jefferson City and Columbia–have began refusing to accept appointments to represent certain poor criminal defendants, because their caseloads are so heavy they cannot provide an effective defense.

This Columbia Missourian story noted that “The first types of clients to go unrepresented will likely be people accused of probation violations or those charged with certain collections and traffic crimes. Private attorneys who can take cases for free may take up some of the slack.”

So far, in Cole County, it seems the first defendants to lose public defender services are persons already convicted of a crime and now accused of probation violations.

The interesting thing is that dumping these probation cases–which often require as little as 5-10 minutes work on the part of a public defender–provides little relief to these overloaded lawyers. The thrust of this effort is therefore bureaucratic: it lowers the numbers of cases the public defender carries, but without actually providing much relief.

The bottom line is that the problem is not solved. First, there is the constitutional requirement to provide representation to persons too poor to hire a criminal lawyer. Under Missouri law, public defenders must provide legal services to poor persons who are detained or charged with a:

  1. Felony, including appeals;
  2. Misdemeanor which will probably result in jail time, including appeals;
  3. Violation of probation or parole; [There are a few exceptions, but that’s basically it]

The legislature could solve the problem in a couple ways. First, they might add some money so the public defender can add attorneys where the caseload demands. A better solution–probably impossible in this age of criminalizing every wrong and increasing punishments–would be to CUT the punishments for certain crimes.

A first offense driving while revoked has mandatory jail time. This means the public defender is flooded with these cases. They could remove the mandatory jail time. They could cut first offense DWI’s to a fine only–nobody goes to jail on the first offense anyway. Many, many misdemeanor punishments could be cut to a fine only, especially for first offenses. Let me suggest a few:

  • littering
  • gambling
  • careless and imprudent driving
  • turn signal violations
  • peace disturbance
  • speeding (or driving too slowly)
  • sale of a motor vehicle on a Sunday
  • failure to return a rented video
  • cockfighting
  • bear wrestling
  • possession of an unregistered monkey
  • impersonating a hairdresser
  • entering a prohibited cave
  • sticking out arms on a roller coaster
  • releasing a swine
  • picking flowers by the roadside, and

If you really want to cut the public defender caseload, a first offense possession of a small amount of marijuana could have a fine only (not necessarily a small one).

Another solution brought up is to have the judges order unpaid private attorneys to take up the slack. [I know, Lincoln freed the slaves, but unless you are being forced to pick cotton, our government has pretty much decided we must do what ever they tell us.]

So setting aside the slavery/involuntary servitude aspects of this solution, it’s hard to imagine most poor defendants coming out ahead on the deal.

The truth is that many Missouri lawyers never see the inside of the court room.  We are divided into specialties and only a small percentage can be said to be trial lawyers. Only a fraction of those are skilled in the practice of criminal law. To give a significant portion of the public defender caseload to the local bar would be a disservice to the client in many cases, unless only experienced criminal defense attorneys are appointed, which also raises obvious fairness issues.

In the end, I am betting my money (and it is MY money) on the legislature doing the easy thing and sending more money over to the public defender office. [Sigh.]