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The Sex Offender Registry: A Gorilla on the Basketball Court

By Michael M . . . Why does the public ignore the obvious unconstitutionality and overt cruelty of a sex offender registry that not only fails to accomplish its stated purpose – keeping our communities safer – but also condemns hundreds of thousands of registrants and their family members to a lifetime of humiliation, harassment, and the very real possibilities of unemployment, homelessness, and vigilantism?  It would be easy to assume that this apathy and inattentiveness by the public is simply the result of hatred, bias, or ignorance, but there may be something else at work here, something that scientists have dubbed “inattentional blindness.”

In 1999, psychologists Daniel Simons and Christopher Chabris conducted an experiment that became world famous and was the subject of their 2010 book entitled, “The Invisible Gorilla.”  In their experiment, test subjects were shown a video of a basketball game after being asked to count the number of times the basketball is passed by players wearing white shirts.  During the game, a person in a gorilla suit strolls to the center of the screen, pauses to beat on his chest, and then wanders off.  After viewing the video, as many as 70% of the test subjects had no recollection whatsoever of a gorilla being in the video.

This study has become the cornerstone of various theories and further experimentation centered on the phenomenon which became known as “inattentional blindness.”  The legal community took further notice of this topic when an undercover police officer named Kenny Conley was convicted of perjury and obstruction of justice in 1995 for claiming that he did not see a fellow officer beating a suspect as he ran by in pursuit of another suspect.  The jury simply did not believe that it was possible to miss something that obvious and convicted Officer Conley of lying to protect his colleague.

Simons, Chabris, and others decided to conduct a test to see if it was indeed possible that Officer Conley hadn’t seen the incident.  They set up a similar scenario and asked test subjects to chase a suspect and count the number of times the suspect touched his head while running. The route took the test subjects right past an on-going fist-fight, yet afterwards, as many as 72% of the test subjects had no recollection of seeing the fight, which clearly had occurred right in front of them.  As a result, Officer Conley was exonerated in July 2000.  The results of this study were published in 2011 under the title, “You do not talk about Fight Club if you do not notice Fight Club: Inattentional blindness for a simulated real-world assault.”

The conclusion of this and other similar studies is rather straightforward and simple.  Our brains pay attention to what we think is important or, equally significant, what others tell us is important.  Everything else is subconsciously categorized as being irrelevant and is discarded before having any effect on cognition or thought. As a result, we are literally blind to it; we simply don’t see it.

The mainstream media tells us daily what we should be paying attention to.  Their laser-like focus is invariably trained on sex offender registrants, prominent people labeled as “pedophiles,” and sex-traffickers.  The constant drum-beat and warnings of “stranger danger” not only stoke our natural anxieties as parents but also blind us to the potential dangers that may exist right under our noses.

97% of the sexual assaults against juveniles are perpetrated by someone the victim knows.  59% are committed by acquaintances; 34% by family members.  Less than 7% of sexual assaults against juveniles are committed by strangers, and an even smaller fraction of that number is attributable to known sex offenders.  “Stranger danger” is largely a myth.  Targeting registered sex offenders as your primary focus of fear and loathing is not only irrational, it is dangerous.

As for America’s “epidemic of missing children,” over 91% of them are runaways. 5% are the victims of family abduction. Less than 1% of the missing children were abducted by strangers, and most of those were not registrants.  Again, the conspicuous focus on registered sex offenders makes the public blind to the real dangers that abound in our society.

Bu what about sex trafficking?  Surely, that is an issue we can all agree needs more attention and aggressive prosecution.  Yet, according to the National Center for Missing and Exploited Children, an astonishing 88% of the children who end up being sex-trafficked became victims after going missing from government social services and foster homes!  It isn’t some creepy guy at the park who is responsible for snatching children from their homes and turning them into chattel; it is the very same government that is fueling your unwarranted fears of “stranger danger” and those on sex offender registries.

Inattentional blindness causes the great majority of Americans to overlook the unconstitutionality and cruelty of a sex offender registry that makes our communities less safe by focusing your attention where it is least needed and accomplishes absolutely nothing.  It is a classic case of misdirection, blinding you to the political incompetence, law enforcement impotence, and contemptible court decisions that are so pervasive in the realm of sexual offense laws and policies.

It’s time we “just said no” to the media hysterics and political grandstanding about sexual offenses and start paying attention to the (now) painfully obvious gorilla on the basketball court.

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Michael M.

Michael M. is the published author of several non-fiction books, a writer/researcher for NARSOL, and the executive editor of The Registry Report. He also assists NARSOL in marketing, social media, and podcasting.

This topic contains 19 replies, has 2 voices, and was last updated by  Glen 3 months ago.

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  • #44426 Reply

    Deb Mrugala

    I whole heartly agree with this story. Another thing we are trying to bring to the top of the list is parents being able to become a part in solution when it comes to the so called “treatment” – when an offender is released generally it is the parents who are with that person nearlly 24/7 yet we are kept in the dark when it comes to what they can do and not, how their treatment is going, if there is an issue the parents should possibly be brought in for after all once they leave counseling for the week the family can keep the person honest. If the parents should have a question they should feel free to contact the appropriate person without fear of getting their love one in trouble- if something is starting from go off kilter having that avenue could possibly keep the person in question from making a mistake wiping all positive achievments made. As we all know when an addict is questioned and I consider a person with a “non-violent” offense as having an addiction not always do they approach the truth, that is why I feel that the parents/counselors/parole officers work in tantrum that way the offender will learn there would be no place to hide. I’m hoping what I wrote makes sense and that possibly I will get some response to this.

  • #44429 Reply

    Deb Mrugala

    I so agree with this article on many levels – the government it seems are the only ones without question see the “gorilla” and refuses not to see the person who is trying to get their life back in order once their sentenced is satisfied (well at least as far as the “bars” are concerned) such as what my son is going through. He was arrested over 10 years ago for child pornography, served I believe seven years, stayed six months at a half-way residency where after that he moved into his brother’s home which met all criterias, that was in 2016 and in May 2018 he was able to (with the help from us) he was able to take on a mortgage on a house that once again checked all the correct boxes, so we, the parents, felt we were on the road of positive and that he wouldn’t do anything to jeopardize his good fortune – here he was with a house, a car, a full time job, attending school at night and being able to build a safe social life – well that’s what we thought anyway. A few weeks after he had moved to his house a friend of his gave him a used desk top that had been “cleaned” because this friend knew of my son’s past and didn’t want anything of question on it that could possibly get him into trouble. When my son moved from his brother’s house to his own it met he left one jurisdiction for another which meant a new parole officer – when he made the transfer the new PO was on medical leave and he never met her for at least a month and a half. Before my son took the desk top he went to his original PO seeking his permission and all he got was I can’t tell you since you are no longer in my care and not knowing when his new PO would return he took the computer. The one thing he did not do was connect to the internet because he knew that was not allowed so all he was using it for was for the word doc placing such things on it as his budget, his resume, letters of resumes and a list of who he sent to along with school work. Finally his second PO made a house call, she noticed the computer (he had it in the living room never hidden) and questioned him about it – he told her what he was using it for, showed her that and also the fact that there was no internet connection – she left without saying anything. About six weeks later another house visit was made and this time she told him that he had to either get rid of the system or get internet where they could then place the monitoring program on it – he truly didn’t want to do that because he knew that both expenses would come out of his pocket and making a bit over minimum wage that would be an expense that he didn’t want to take on but not wanting to lose the system he reluctantly did as requested, that was in September 2017 and then February 2018 the world fell apart – a very early house call was made and this time the PO was not alone, she brought two police officers and the three of them went through his house and when they left the computer went also. Fast forward to end of May 2018 and my son was ambushed – he had a scheduled meeting with his PO and when he walked into her office he was arrested for what they said was a parole violation – what that was they never said other than it was a violation. Two weeks later I called up his PO questioning this and also questioning if anything had come about from the forensic search on his computer – was told no (remember the system was taken in February and now this was June when I inquired). Another week went by and I then contacted his lawyer asking what was going on and again inquiring about the computer – he replied that he had nothing to tell me because he didn’t have any results either which I found rather strange but I felt there was nothing I could do. Now it’s mid July and my husband and I were finally able to meet with our son’s attorney and we were shown what was allowed of what “violations” was placed against our son, I will say that the “violations” surprised us yet at the same time it was something that could have been prevented and this is what my husband and I are trying to get action on. My son, was given a set of “rules” when he initially met with his original PO, that he had to follow, one of them that he was not to view or have in his possession anything that was sexual in content whether it be with minors or an adult video – nothing – period. They did find that he had down loaded videos with that type of content and that’s what got him in this jam. When we read this, we knew if we had been made aware of what the “rules” were there could have been a good possibility we could have prevented it – my husband is a computer geek so he knows his way around a computer so our son couldn’t have kept this hidden. We proposed that if we could work in tandem with his counselors and PO many problems could possibly have been avoided – my thoughts are that anyone with an addiction (and I consider what he got himself into an addiction) tend not to tell the truth when confronted and that’s what my son was doing, he was telling us one thing, telling the same story to the counselor or PO but changing parts of it to fit what he wanted, but if the group of us had an open avenue of conversation he soon would have learned that there was no where to hide and that telling the truth and facing the issue was the only avenue he had. We would like to see parents get involved, especially if they are very willing to do so, after all once the offender leaves the counselor or PO office it’s the parents that are dealing with the offender almost on a 24/7 basis and if they were able to have a connection without fear of getting their loved on in trouble, if they were to see or feel something was not sitting right they could possibly prevent it from happening – sometimes a quick intervention is all it takes and waiting to see the counselor could possibly be too late. It can’t just be the counselor or PO to make a positive it also needs the help of the family, especially the parents. What my son did was “possibly” wrong but he did no harm to anyone, none of the videos were of what I consider true minors (under the age of 14 or 15), they were videos that any adult male would have viewed but because he’s not to have any sexual anything they arrested them but if we, his parents, had been able to talk to his counselors if there were any concerns on either side we would have been more aware of his surroundings and would have question but that was taken out of our hands. I’m hoping my story makes sense to you out there and I’m also hoping I get some sort of reply to what I wrote. We, as parents, can’t afford to just sit on the side line taking the word of the counselor and parole officer as the truth and learning what we did, certainly can’t take the words our son speaks as the truth either but with all working together we can come to the point where he won’t be afraid to speak knowing there will be someone there to help him along to the road of positive.

    • #44530 Reply

      Maestro

      Deb,

      You’re feeding right into what the “thought police” push on you and want you to feed into.
      It’s normal human nature to be sexual. It’s also normal human nature to want to be ‘turned on’.
      So ask yourself this question since you seem to agree with the P.O.’s rules about porn:

      “If a person with a sex offense CAN be in a relationship while being on probation/parole, OBVIOUSLY they’re going to SEE their partner NAKED, right? So then what the hell does it matter if they see OTHER ADULTS naked?”

      Just ask yourself that as you seem to partially applaud their “rules” and refer to your son as having an “addiction”. Sorry to burst your bubble but we don’t all just have sex when it’s “mating season”. Ah…because humans don’t have a mating season like other animals do. 😂

  • #44454 Reply

    Tim L

    It fails precisely because the motive was distorted. Why would a constitutional state Congress NEED OR CHOOSE to issue a preamble to the Act that was not contained in the originating federal act OMNIBUS 94? Why would Congress NEED a preamble to justify an act to protect our kids? They didn’t need it unless they knew they were violating the plain words. The preamble itself passed on to the States by Janet Reno, U.S.A.G.via special instructions contained in the 94OMNIBUS.

    Why…to obfuscate the actual purpose. Justification for certain uses of a machine a database by government actors. Congress brought back indentured servitude as described in the 13th and the general warrant via the regime. Man was first made subservient to machines by the act and there is little more destructive and abhorrent to individual liberty than indenture.. Mr. Stevens made it a point to state, “that Congress had opted to include ‘them and only them’ [child molesters &child rapist]… is the proof enough of state’s intent.” He was trusting his gut!

    Without doubt registrants are forced to maintain the state property. The commodity being information data. The people now use it- the electronic database – to banish, bar or otherwise impose affirmative disability outside of the reasonable. Therefore, that must have the motive to begin with.
    Just like the man who brings a gun to a store to scare the attendant into giving over the cash but ends up shooting the attendant, culpability sticks.

    Let us pray we can hold them all accountable, them who knowingly passed prohibited law an ex post facto law.

    • #44465 Reply

      Glen

      “Without doubt registrants are forced to maintain the state property. The commodity being information data.”

      I think that’s a great point that you mention; the fact that the state is mandated to have a registry, but that the data required on the registry by the state is provided only by way of “indentured servitude” with the penalties being imprisonment…. Any idea if that angle has ever been presented to a court? Just curious.

  • #44456 Reply

    Glen Gibson

    Since it’s clearly constitutional, non-punitive, and the intent is to protect the public…perhaps a “National Police Abuse/Misconduct Registry” is in order? It might contain officers full name and picture, department where they work, home address, charges and complaints filed against them, etc. And, perhaps some randomly assigned tier level assessment of their risk to the public…

    I’m being sarcastic of course, because I don’t feel there should be any such registry applied to anyone after having paid your debt; but, can you imagine how law enforcement would feel toward such a registry? I’m sure they would argue it a violation of their constitutional rights, privacy, an embarrassing shaming tool without any due process, and such a registry could potentially damage their future employment….

    • #45355 Reply

      Tim Lawver

      Glen,
      Dirtycops.org? I found dirty prosecutor site some time bac k, but my recent search didn’t turn it up. Oddly enough when I tried to find BREYER admission on Hendricks case on cspan the vid was broke. My Tin foil hat is given me trouble.

  • #44470 Reply

    Glen

    Speaking of the experiment mentioned here, it reminds me of the story out in Iowa regarding the Mollie Tibbetts disapearance which is now into its 3rd week. Several of the storys I’ve seen indicate law enforcement is looking at the registry; or that many comments from the public suggest police should be. So, here it is again….the notion of “Stranger Danger”, and the inclination that it must have been a registered person involved.

    Meanwhile, as we all know, (1) statistics show these kind of things are more likely to involve someone known to her or an acquaintance. And, (2) the recidivism rate for registered people is quite low.

    Now, that’s not to say, that once this situation is solved it could be that it involved someone on the registry. But, it’s unlikely. Additionally, the registry has so many on it that it would be difficult to identify anyone that may have some involvement. The registry needs revamped if it is to be an effective tool for police. You would think law enforcement would be for an effective registry, if their intent is to use it to solve crimes.

    But again, LE are so focused on counting the number of times the ball is thrown, that they don’t see the gorilla walking through the room. When you throw so many on the registry regardless of low risk threat levels that it becomes so massive, how can such a tool have any benefit to law enforcement?

  • #44468 Reply

    Saddles

    Michael, I’m beginning to like your writings more and more and I can see the inspiration ina lot of it that you do for NARSOL. Now I’m sure people on here that have good responses to these articles with their comments and views. that NARSOL takes note of. Yes, your articles have been pretty positive and a fresh view on all this. I commend you as well as some of the others

    I even enjoyed Debra’s comment about her son and the perdicament with her son. That was an inspiring story. Sure we can all get a bit down on all this ordeal about this sex offender or abuse issue. I even get a bit down on myself to even read some of this stuff on here that is going on with government gone bad, if you want to say that. Her story has a lot of meaning in it if one listens well is very impressive. I wonder if he just had a playboy magazine would they of violate him or even a hustler magazine. Believe it or not government approved both of them. Matter of fact we all should be glad for NARSOL’s grassroots efforts in all this type endeavor. and helping others is what its all about.
    If you want to go a bit father they could of even planted that and it always amazes me that some will go to those extremes. Nobody’s perfect.
    I know get to the point. I grew up in the mid to late sixties. Sure the civil rights movement was in swing. Their were speakers like Malcom X, Dr. Martain Luther King, and JFK and those days were interesting. Someone look that up for me as I was about 9 or 10 at the time. Sure everybody wanted freedom and true justice. See when injustice takes on a different form than one has to stand up. Sure man can be ordained to serve the people but even we all could use a pharase from ” Working class people” John Lennon. And yes a lot of people were against goverrnment at that time. Look at some of the Vietnam stuff.

    All that Beettle stuff aside for right now, Government is actually going above measure. I liked one of the comments on here about the “National Police Abuse/misconduct registry. I could of said is this guy on acid or wigged out by all this, but actually made good since. Yes a lot of you all make good sense on here.
    Now I’m a nobody at times but even with my measure of faith and I’ sure your alls also we are somebody and if we don’t use the measure of faith we can lose it. Sure some of these registry things are wrong. Even the lady mentioned about the computer. yes they confistated mine alss and they said it was clean. Believe it or not I get I have gotten message’s since my offense when was back in 2012, I never open them but I do have a separate file and will bring all this up when its time. If police can dupe a person once they will do it again if you let them so one has to be on guard.

    True Justice is in the hands of the Creator, and good people that help like NARSOL and yes Michael I do enjoy these articles.Even NARSOL has enough challenges as it is I’m sure but this will all be straighten out soon and true liberty should shine again. I hope we all are not bank robers but I’m sure with all the money we have put out in fines or violations or just whatever even with time served in jail plus our liberties, I wonder who the bank robber is. People do have morals and a conscious but when someone inflames a conscious than that isn’t too good.

    So where is the rehiblitation in all this, I guess its thru man’s wisdom.

    • #44481 Reply

      Glen

      Saddles,

      I’m not on acid, but I do confess to being “Wigged-out” on all this on occasion lol. Probably alot actually…

      And, while I’m really not in support of a “National Police Abuse/Misconduct Registry”, my thought when mentioning that was that most people don’t get it until abuses apply to them. Police often are quoted that the registry is a good tool for them and that it protects the public. The same argument could be made against Police abuses in my view. In theory, it could be applied to many groups. So far it hasnt. But imagine if it were to happen…it’s likely they would share the same arguments against it as we do. Many folks often don’t understand “Unconstitutional denial of protected rights” until it actually affects them…then they are like “Wait, hold up!…that’s not fair!”

    • #44550 Reply

      WC_TN

      Yes, a “Playboy” or “Hustler” would be the grounds for any registered citizen on state or federal supervision to be found in violation of the terms of their supervision. However, that rule is so very vague “sexually explicit” or “sexually stimulating” can involve anything from child pornography to hard-core adult pornography to books containing pictures of masterpiece paintings that include nudity. I would say that for those registrants with charges against minors, an old Sears & Roebuck or J.C. Penny’s catalog could be considered a violation of that rule since those old catalogs had pages of little boys and girls modeling underwear. Also, “National Geographic” has published multiple issues with pictures of fully naked prepubescent children showing EVERYTHING.

      In fact, in some jurisdictions those terms “sexually explicit” or “sexually stimulating have been overturned because they are so vague and open to a wide range of interpretation.

      Exerpt from United States v. Lawrence Antelope (9th Circuit)

      III. THE PROHIBITION ON “ANY PORNOGRAPHIC MATERIALS”

       Antelope also challenges as unconstitutionally vague the provision of his supervised release prohibiting him from possessing “any pornographic, sexually oriented or sexually stimulating materials.”   In United States v. Guagliardo, 278 F.3d 868 (9th Cir.2002), we held impermissibly vague a similar supervised release term.   Guagliardo was prohibited from possessing “ ‘any pornography,’ including legal adult pornography.”  Id. at 872.   Because “a probationer cannot reasonably understand what is encompassed by a blanket prohibition on ‘pornography,’ ” we remanded for clarification.  Id. We do the same here.   The condition imposed on Antelope is indistinguishable from the one imposed on Guagliardo.   Here, instead of “any pornography,” we have “any pornographic ․ materials.”

      The government contends that “sexually oriented or sexually stimulating” should be read to define “pornographic.”   We decline to adopt this grammatically unnatural reading.   The release term explicitly lists three types of materials that Antelope may not possess:  “any pornographic, sexually oriented or sexually stimulating materials.”   Because the condition imposed on Antelope suffers from the same defect as the one struck down in Guagliardo, we vacate and remand for clarification.

      United States of America, Plaintiff-appellee, v. Thomas Luke Guagliardo, Defendant-appellant, 278 F.3d 868 (9th Cir. 2002)
      Annotate this Case
      US Court of Appeals for the Ninth Circuit – 278 F.3d 868 (9th Cir. 2002)
      Argued and Submitted October 17, 2001
      Filed January 17, 2002
      COPYRIGHT MATERIAL OMITTED Maria A. Stratton, Federal Public Defender, James H. Locklin, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.

      James S. Gordon, United States Attorney, Ronald L. Cheng, Assistant United States Attorney, Curtis A. Kin, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

      Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CR-99-00139-DOC.

      Before: BROWNING, FERNANDEZ, and FISHER, Circuit Judges.

      PER CURIAM:

      Thomas L. Guagliardo challenges his conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a) (5) (B), and three conditions attached to his supervised release. We affirm the conviction but remand for resentencing.

      On July 1, 1997, Guagliardo “conversed” in an Internet chat room with an undercover police detective. Guagliardo claimed to have a collection of 7,500 images and 105 movies of pre-teen child pornography. Later, Guagliardo met with another undercover officer and gave him three computer disks containing pornographic images of preadolescent girls.

      Guagliardo was charged with one count of violating 18 U.S.C. § 2252A(a) (5) (B), which at that time made it a crime to

      knowingly possess [ ] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains 3 or more images of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.1

      Guagliardo was convicted after a bench trial. He was sentenced to 15 months’ imprisonment followed by three years of supervised release.

      Guagliardo argues that there was insufficient evidence of a connection to interstate or foreign commerce to satisfy the statutory requirement. Although there may have been insufficient evidence that his images had been “transported” in interstate commerce, we affirm the conviction because Guagliardo “produced” the images with materials from interstate commerce when he copied them onto computer disks.

      The government proved that Guagliardo copied his images onto computer disks that had been manufactured abroad.2 Guagliardo, however, compares a computer disk to an empty filing cabinet that passively stores information, and thus argues that the disks did not “produce” the images. The analogy, however, is strained. When the file containing the image is copied onto a disk, the original is left intact and a new copy of the image is created, so the process “produces” an image. See United States v. Lacy, 119 F.3d 742 (9th Cir. 1997) (holding that images were “produced” when they were downloaded onto a computer); see also United States v. Angle, 234 F.3d 326, 341 (7th Cir. 2000) (holding that visual depictions “are `produced’ when computer equipment, including computer diskettes, are used to copy the depictions onto the diskettes”), cert. denied, 533 U.S. 932, 121 S. Ct. 2556, 150 L. Ed. 2d 722 (2001).3 Thus, Guagliardo “produced” images of child pornography with materials from foreign commerce when he copied the images onto the disks.

      To prove that Guagliardo’s images were of actual children, rather than computer-edited images of adults, Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted, 531 U.S. 1124, 121 S. Ct. 876, 148 L. Ed. 2d 788 (2001), the government introduced evidence that Guagliardo’s images had been published in magazines dating from the 1970s and 1980s, before computer “morphing” technology was available. A government witness, William Siebert, testified that he had worked as a mail inspector for the Customs Service during the mid-1980s and that he had personally encountered magazines that contained copies of Guagliardo’s images. He also stated that he might have written investigative reports about those magazines. The district court denied Guagliardo’s request under the Jencks Act to require the government to produce those reports.

      We review for abuse of discretion a district court’s denial of a discovery motion made pursuant to the Jencks Act. See United States v. Nash, 115 F.3d 1431, 1440 (9th Cir. 1997). We need not decide whether the district court abused its discretion, however, because any error would be harmless. See United States v. Brumel-Alvarez, 991 F.2d 1452, 1456 (9th Cir. 1992). Independent of Siebert’s testimony, the district court also found that a sufficient number of the magazines bore copyright dates from the 1970s, which proved that they had been in circulation prior to the development of morphing technology. Consequently, even if Seibert’s reports were available and somehow discredited his factual testimony, there would be sufficient independent evidence to sustain the judgment.

      Finally, Guagliardo disputes three conditions attached to his supervised release. First, he challenges a condition that he not possess “any pornography,” including legal adult pornography. In United States v. Bee, 162 F.3d 1232 (9th Cir. 1998), we recognized that a probationer does not have an unqualified First Amendment right to “sexually stimulating or sexually oriented materials.” A probationer, however, has a separate due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct will result in his being returned to prison. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (“we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly”); United States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999).

      As the Third Circuit recognized in United States v. Loy, 237 F.3d 251, 263 (3d Cir. 2001), a probationer cannot reasonably understand what is encompassed by a blanket prohibition on “pornography.” The term itself is entirely subjective; unlike “obscenity,” for example, it lacks any recognized legal definition. The district court here could not itself define the term, stating only that “The Court won’t have any trouble defining it if [Guagliardo] violates it.” This after-the-fact definition, however, leaves Guagliardo in the untenable position of “discover [ing] the meaning of his supervised release condition only under continual threat of reimprisonment, in sequential hearings before the court.” Loy, 237 F.3d at 258.

      The government asserts that any vagueness is cured by the probation officer’s authority to interpret the restriction. This delegation, however, creates “a real danger that the prohibition on pornography may ultimately translate to a prohibition on whatever the officer personally finds titillating.” Id. at 266. A probation officer could well interpret the term more strictly than intended by the court or understood by Guagliardo. In Farrell v. Burke, No. 97 Civ. 5708, 1998 WL 751695 (S.D.N.Y. Oct. 28, 1998), for example, the parolee had been returned to prison for possessing two books of non-obscene gay erotica and a periodical that contained “satirical articles on gay political activity, art and culture” — materials that the parolee did not consider pornographic. The parole officer, however, had interpreted the prohibition on “pornography” to include any nude depiction whatsoever, whether “Playboy Magazine or a photograph of Michelangelo’s sculpture, David.” Id. at *6.

      Reasonable minds can differ greatly about what is encompassed by “pornography.” Given this inherent vagueness, Guagliardo cannot determine how broadly his condition will extend. Further, we cannot determine whether the condition is otherwise reasonable under 18 U.S.C. § 3583(d). We remand for the district court to impose a condition with greater specificity.

      Second, Guagliardo challenges a condition that he not reside in “close proximity” to places frequented by children. In Bee, 162 F.3d at 1235, we upheld a condition that the defendant not “loiter within 100 feet” of areas frequented by children. Guagliardo’s condition, however, is vague because it leaves “close proximity” undefined. We remand for the court to specify a precise distance limitation for Guagliardo’s residency restriction.

      Third, he argues that a condition that requires him to submit to any search by law enforcement or probation officers is overbroad under United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en banc). In United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001), however, the Supreme Court recently affirmed the validity of a search pursuant to a probation term that authorized a warrantless search at any time “by any probation officer or law enforcement officer,” as long as the search was supported by reasonable suspicion. Consequently, we affirm this condition.

      CONCLUSION

      For the foregoing reasons, we AFFIRM the conviction but REMAND for resentencing.

      • #45357 Reply

        Tim Lawver

        WC,
        After reading this post all the way through only one thing pops out at me. RENO V FREE SPEECH!
        While she most certainly wasn’t attractive she was vindictive. Maybe she had the right. Her special instructions in 94OMNIBUS laid out the necessary and sufficient preamble. Some time later PACKINGHAM! We are full circle as evidenced by Janices’ doings lately in CA. Speech and vote participation threatened by database.
        Maybe that is the only way to run a country with our large debt?

  • #44480 Reply

    Glen

    Perhaps another example of “Inattentional blindness” and not seeing the forest for the trees, is the recent case regarding Bill Cosby. Dont get me wrong, I’m not defending what he’s been convicted of. Im merely pointing out one aspect of the hypocrisy of the registry as it appears it will be applied to him.

    At 81 years old, blind (and needing help to even walk), it appears likely he will be placed on the registry for life, and classified as “A Sexual Violent Predator” – as determined by a state assessment board. Truth is whether youre a Cosby supporter or not, it seems thats clear evidence that illustrates the fact the registry is being used in a punitive way.

    Again, I’m not defending Cosby’s crime or disputing that punishment is due. But, if the intent of the registry is to protect the public, how is placing an 81 year old blind man- who can’t even walk on his own-on the registry, and declaring him a sexual violent predator protecting anyone? I mean, how much of a threat to the public is he now? Or is this really just an additional punitive measure to enhance his pending sentence?

    Cosby’s attorney is fighting the case and has stated they will appeal all the way to the supreme court. Could be some interesting decisions come out of his case….

    In my view, it’s a good example of the registry being clearly applied in a punitive way.

  • #44495 Reply

    Saddles

    Actually Glen I did think that abuse registry thing was amusing. Sure we have all did something abusive to others and it doesn’t have to be of a legal nature. One of the reason’s I went and took college courses was to one day become a probation officer but I lost interest after so long.
    Even my instructor which was a police officer I knew him. I even went to school with some of his sons. Now I know the remark was in jest but still amusing, but actually it has a lot of meaning in this country today. I would even think Brenda and Robin would thank that also.
    The sex offender matter is just one view but look at the whole gamit of society today. Look at the President and his little bit of hot water. Sure a bit of punishment or reprimand is good but forgivness is better, it can go too far even with any type of people that are not in any type of trouble I went to court for a violation because at the time I said if I can’t vote I can do telemarketing for Donald Trump. I had a polagraph test around that time and I mentioned that on the test and I was violated for wanting to campaign for the President At least I didn’t lie about it.

    Sometimes I have to think I’m wigged out on all this and have to clear my thoughts but Maestro keeps me in running gear on here. And believe it or not this sex offender issue not only effects us but everything else that is discriminatory. Why do you think Lincoln freed the slaves in the earlier days. I wonder if we are all freed indeed today when government wants to challange others. Ali would knock em out I’m sure. either him or Howard Cosell and Cosell was in a different decade but I still have respect for both Ali and Cosell and their views.

  • #44498 Reply

    Mike

    apes are the most fascinated with sex. Most apes if given the chance to vote, would rather know that a violent home invader was living next to them, but they would rather talk about sex. We are all just dumb apes pretending to be civilized. The legal age when Lincoln was president was around 10 yrs old and delaware was actually 7 yrs old. People were more honest back then. People love to crucify sex offenders because of their own short comings and they are an easy target…most are just real wimpy. Murderers and home invaders are a little more tough and they are scared to pick on them as much

  • #44552 Reply

    Glen

    Excellent video from the NY times…

    *****Link Changed by Moderator****

    Breaking the ‘frightening and high’ myth

     

  • #44571 Reply

    Saddles

    Mike one of the reason’s I got involved into all this as we all at times have a monkey on our back, and sometimes it can be in one’s own family. You see I wanted to use a Christian principal to help in all this plus learn a bit about myself and strive to help others in some of this undue debauchrous ordeal. Now from what I have gathered on here from seeing NARSOL’s in action and listening and reading some of the comments on here. Everybody is hurting.

    We can either “Erase the Hate” or just let it build up and blind us all in this concrect jungle of justice the sex offender one is living under. So who’s got the more “Burden of proof” or the Burden of truth”? Sure I am interested in this too just like a lot of people on here, even Glen. See man wants to show their burden of proof.

    Now I’m not sure who brought up Lincoln but we have all brought up things on here. Sure I liked my criminology classes but I’m in my 60’s today and I’m sure we all have seen a lot of injustice in life.
    Lincoln used principal and it was biblical and it also helped end the Civil War.

    The key is word is “Civil” just like civil Justice. Believe it or not a lot of court systems make christiany null and void in todays’ legal Justice. Now watching Paul’s argument in the Doe vs Cooper it was like watching a civil war or a Cosell and Ali fight in the courtroom ( Sorry Paul) when one party want’s to be right and another party wanting to be right about these restrictions in area’s where one can and cannot be in. Believe it or not Cosel was jewish so who’s the boxing odd couple today in a lot of this sex offense ordeal?

    Now we all can be silent in these situation or use a bit of understanding and Lincoln did just that. Just from what I have gathered NARSOL made a good decison with Paul but each state I’m afraid has its own battle.
    Hey believe it or not at one time I remember when people wanted to clean up Television but that didn’t come to much or motion pictures with the PG rating. Just a rating, wow.Now their are two things people can do. They can either make a choice or make a decision.When that detective told me well you made a choice to come down here. I said wait a minute I made a decision and both have different meanings. So principals at times can be vain by governments vanity.
    We all could go back to the day’s of Joe Kennedy with the boot leg wiskey which might be a bit conflicting to some. We could even talk about government scandles or conspiricy’s but are those myths or are the part of American history.
    Mike, Maestro said if he was condemned by smoking cigerettes than he would be locked up. Yes I would be to as I have a bad habit of smoking cigs myself but at times we can all have dirty mouths. We could even talk about govermental abuse but I hope government doesn’t go that far in this sexcapade ordeal that is inflicting those of a lot of their rights for true justice.

  • #44608 Reply

    Glen

    Saddles,

    Regarding Doe vs Cooper, it’s my understanding the court ruled parts of the restrictions unconstitutional and vague. Almost immediately after the court decision, it appears the legislators revised and clarified some things in an effort to combat the courts verdict. In doing so, and unless a clear order by the courts, it seems we are stuck in a virtual infinite “Ground hog day”.

    It seems to me that as long as the courts and legislators continue to “Play hot patato” with the laws, we aren’t going to resolve much. That’s not a criticism at all against our efforts to continue to present unjust cases to the court; I just mean we desperately need a decision from the court like Colorado and Michigan that throws a couple more judicial circuits in limbo. In doing so, the big court -SCOTUS- may finally see they will have no choice but to settle this matter; and this time using valid research and evidence.

    I think we may be on the cusp of the possibility of change here in NC due to the recent cases filed here by NARSOL. I feel the courts are going to grow tired soon of the “pass the buck” decisions. And, the courts seem to be waking up to the fact that the 2003 SCOTUS decision was based on some “Frightening and High” horse malarky…

    That evidence, and given the fact the states merely took the SCOTUS verdict in 2003 as a greenlight to expand on many more unconstitutional restrictions has actually helped our arguement in my opinion; and, it seems logical to me that we are heading back to revisit the Alaska decision of 2003. It’s similar to Plessy vs. Ferguson and the later Brown vs Board of education. I think its just a matter of time and getting the right cases before judicial review.

    Ultimately, there’s only a few ways this can play out….1) An ammendment to the constitution – which I feel is very unlikely, 2)SCOTUS will declare specifically some aspects of the registry unconstitutional absent individual assesments based on risk not offense (Which would be very costly and should require correcting the registry to something that’s effective)- I feel this is likely, or…3) SCOTUS rules everything the way it is currently is just fine and dandy – unlikely IMO, and they know such a decision will just ontinue to flood the lower courts with more litigation.

    This thing is going to have to be settled, justified, and clarified. At that moment, I do pray we get the perfect case to present.

  • #44655 Reply

    Saddles

    Glen I’m afraid your right on a lot of this issue. This SCOTUS, this megan’s law, and these other laws are a bit of a “ground hog shadow” for a lot involved in all this. Now when I was growing up, sure my grandmother took me a few times to those so called “fire & brimstone” preachings. Sure thats the way some preachers strived to get things across.
    Sandy was right when she said Brenda Jones doesn’t want religion in any of this and Brenda is right but it’s more than just religion, is about honesty. Look at the way this nation is since the 60’s. Some have even said the Civil war never ended its just been compromised or appealed in strange ways to make way for a new nation.
    I wonder how even some of these kids’ survive in schools today. So yes Glen there has to be principals but also the right kind and not the USA corrupted kind. in a lot of this monitoring off limits type ordeals. Even governments are a bit out of line and corupt. We could even call some of this stuff going on a ” Basket Ball Jones” type of court rulings or are we still a connecticut yankee in king arthur’s court. I might even suggest Robin and Paul and a few others to watch the Bing Crosby version if the get a chance.
    I sort of hated musicals myself but it makes a bit of good understanding about laws even though it’s a type of love story. Its either getting to be a payton place type, or a governmental valley bunch of hypocrites.

  • #45035 Reply

    Sunland Registrant

    Thank you for writing this important post, Michael. When you mention, “… according to the National Center for Missing and Exploited Children, an astonishing 88% of the children who end up being sex-trafficked became victims after going missing from government social services and foster homes! ” This brought to mind how much the criminality of the registry is created by the government agencies to generate money—and to inflate their libido-egos in a way that can be justified; like the cop who beats a child or teenager because he has power and authority which “allows” him to do so.

    It is a deep and ongoing power and money trip that has been going on since the creation of the FBI and mostly the CIA. CIA is not accountable for anything they do and does not require documentation or authorization to receive money from the GAO, at time they request such. The premise is, that by documenting what they use the money for is a security risk. So the CIA does nice things like Viet Nam and the Bay of Pigs. (read: “American Values” by R.F.Kennedy Jr.)

    In 2005 I did a lot of research on statistics, since my crime involved Internet virtual criminal behaviors.
    Key Findings:
    • Between 2000 and 2006, there was a 21% increase in arrests of offenders who solicited youth online for sex. During the same time, there was a 381% increase in arrests of offenders who solicited undercover investigators (UC) posing as youth.
    • In 2006, of those arrested for soliciting online, 87% solicited undercover investigators (UC) and 13% solicited youth. (this can only indicate that undercover investigators were actively urging-on the solicitations)
    • During the same period that online predator arrests were increasing, overall sex offenses against children and adolescents were declining, as were overall arrests for such crimes.
    From: http://www.unh.edu/ccrc/pdf/CV194.pdf

    It was also surprising as to the number of images the government had online, with particular emphasis on the majority which were put online by the USPS Inspector agency from cleveland, OH. The numbers of images online that the FBI [IIICI] counted in 2002 were around 105,000 images. By 2005 there were over 5 million. Most all were put online by the USPS and under the guise of a foreign delivery address as to enhance sentencing points. (if you want to know how I know this I would reserve to say only that you can read my discovery which contains documents of 13 images, all sourced from various agencies. I collaborated with “a source” of over 700 inmates—low security; 700 SO, 800 rehab-last-leg. 1 Judge and several lawyers; lawyers filed and reviewed while incarcerated— that would concur their records are similar.)

    It is just amazing how corrupt our government has become and how blind Americans are to this corruption.

  • #45154 Reply

    John

    @Sunland Registrant

    Have you provided this research you speak of to a respectable, unbiased journalist (or several) as well as politicians’s offices and the public in your community? Because it reads like a great many of these folks in positions of authority need to have badges stripped, removed from positions of authority and properly investigated and charged and convicted for conspiracy to get citizens to commit a crime and various other crimes against the public including perjury. After that they need to be placed in a dangerous law enforcement/politicians predators’ list as well. I ask your forgiveness in advance, but If you have not done any of these, you are part of the problem. Posting it here in NARSOL is not going to get noticed by the ignoramus public that does not come here to educate themselves about such matters. And LEO’s know better, but well… a major percentage just do not care! There are just puppets to the system that feeds/pays them. As many military service man/woman are when serving in many overseas “humanitarian operations”.

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