Families Affirming Community Safety (FACTS)

December 18, 2009

A Reality Check on Bruning, Kleine

Filed under: Fact Check — constitutionaldefense @ 7:42 am
Tags: , , , , ,

Here is a reality check about Omaha World-Herald and Lincoln Journal Star coverage of legal questions about the constitutionality of LB 285.
First off, Stu Dornan got it right: “If the constitution doesn’t protect all of us, it protects none of us.”

Now, about those who got it wrong:
Nebraska Attorney General Jon Bruning said: “This is a group of people who are obviously very unhappy they are caught, and they’re going to challenge everything.”
The FACT is: This is a group of people who have paid dearly for their crimes, succeeded in therapy, and have become productive members of our community. They have families and jobs and they pose little or no threat. They are unhappy that LB 285 strips them of their constitutional rights and will destroy their lives.

Bruning and Kleine both implied/stated that this was about public safety.
The FACT is: Many of the actions that become felonious under this law are already a felony.  Yes, it’s already a felony to prowl the internet for child victims.   This law makes normal legitimate healthy activities felonious on top of that.  It takes an enormous pool of people, who have already been clinically checked, and deemed “non dangerous”, and pools them in with a group who have already been deemed “dangerous”.  The law then presents this very large pool to the public and basically makes you decide if they are dangerous or not.  Many of these people have no victims, but their life is over once they are placed on the public registry.  Every study done on this law states that this will make it more confusing to the public, and make registrants less likely to be able to complete therapy.

Douglas County Attorney Don Kleine: “These laws have a very important purpose to empower the public to protect their neighbor, their children and their schools.”
The FACT is: Experts agree, and experience elsewhere has shown, that these laws increase danger to the public.  Is the public better served with a low risk registrant working full time living with his family or unemployed, homeless, and hopeless? 

Bruning said if shared computers are an issue, adding a second one to the home that’s off-limits to the sex offender is one solution.
“It’s not unrealistic for households to have more than one computer,” he said.
The FACT is: LB285 forces the registrant to sign a consent form, permitting law enforcement to search all computers or electronic communication devices possessed by the person, and allowing law enforcement to install hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person.  This shows Bruning doesn’t even understand this law because there’s no way by law a computer in the home could not be considered possessed by a registrant.  All family members will be monitored.

Bruning stated this new law made things “simpler”.
The FACT is: The new law strips all due process rights, the rights to appeal, the rights to present evidence on your own behalf, and numerous other rights.  It stops using “risk” to place a registrant, and just lumps anyone convicted of a crime, loosely related to sex, into one huge pool. 

Bruning stated that under the old system, registrants were often appealing their level.
The FACT is: Under the old system, only extenuating and negative aspects of the case were looked at.  Therapy, rehabilitation, and mitigating circumstances were intentionally ignored.  Under the old system, even a victim impact statement was ignored.  If a registrant wanted to present any of these items, the only possibility was to file an appeal, so that the “good”  items could be considered in determining the risk level.  The frequency of appeals was simply due to a flaw in the scoring, because it only looked at negatives.  As offenders would complete therapy and rehabilitation, their only choice was to file an appeal again, to get this new information taken into their “risk” level.

Bruning stated he “was confident” that this would withstand a constitutional challenge, and that similar laws like this were already challenged and stood.
The FACT is: This law is so incredibly unconstitutional that it is shocking.  Read the complaint — the law violates nearly every aspect of the Bill of Rights.  Bruning’s statement seriously brings into question his understanding of the U.S. Constitution.  More than that, this law is unique, in that it restricts registrants from communication with their spouse and employer.  No other law has EVER been written that was this overly broad.  He may be referring to Smith v Doe 2001 in the U.S. Supreme Court, but that decision does more to prove this is unconstitutional, than it does to support it.

Kleine argued that a person’s computer at work is already monitored by the person’s employer. “This may create a hardship for some offenders, but that’s not our concern. Our concern is to empower the public with information,” said Kleine.
The FACT is: Employers may be allowed to monitor an employee’s computer, but the State Patrol is not allowed to monitor their computer.  The new law forces an employer to allow the State Patrol to monitor everything the employee does with no legal protection of their data.   Additionally this law makes it a felony for employees to use social networking, chatting, or text messages to communicate.  In the global economy, this is the method of choice for communication in the work force.   No employer would consent to this and therefore would not be able to hire a registrant.  So Kleine has no concern about making low risk registrants unemployed and hopeless. The law will contribute to the nation’s already desperate unemployment situation.

Bruning stated that this will STOP predators from using text messaging to look for victims.
The FACT is: That is ALREADY illegal. Before this law, that is a felony. This new law makes it a felony for registrants to use text messaging to communicate with their spouse or employer.  This law makes it a felony for registrants to communicate with their children’s teachers in school.  This law makes it a felony to use any ‘internet enabled device’ that cannot be monitored, which excludes DOZENS of devices, such as game counsels.  It becomes a felony for a registrants’ children to even have one of these devices.

Neither Bruning nor Kleine addressed the fact that by lumping all registrants on the public web site, it will be impossible for communities to focus on those who pose a true risk.

Nor did they address the roughly $3 million that it will cost Nebraska taxpayers to implement the law. All for the sake of a couple hundred thousand dollars of federal funding that would be denied as a penalty for keeping Nebraska’s current common-sense system in place.

When the State of Nebraska wants to evaluate a sex offender’s risk of reoffending, it calls upon Omaha psychologist Stephen Skulsky, PhD. What does Skulsky have to say about the new law?
“LB 285 represents a clear and present threat to public safety,” Skulsky said.

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
Ben Franklin


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