The “Justice for Danyelle Act of 2018”: The Shady Tactics behind another Oklahoma Knee Jerk Law

By Mark N., Oklahoma Activist May 31, 2018

Oklahoma’s “Justice for Danyelle Act of 2018,” an act that prohibits registrants from living within 2,000 feet of their victim’s home and loitering within 1,000 feet of the same, is a prime example of a knee jerk law. This law also demonstrated one of the deceptive tactics that Oklahoma lawmakers use in order to advance their own personal agenda using the public safety issue. To add insult to injury this law is going to be applied unconstitutionally to over 6,800 registrants in Oklahoma and the author of the bill knows it will be.

First, let’s see how this knee jerk law was created.

In 2003, Danyelle Dyer was molested by her step-uncle. Harold English was arrested, convicted and went to prison for the crime. Upon his release, Harold had only one place to go to, his mother’s home. She agreed to take him in until he could find a place of his own. His mother was also Danyelle’s grandmother, who lives next door to Danyelle’s mother. While the news media reports that the two were, “…next door,” Danyelle admits that the two houses are, “…about 100 yards…” apart. Furthermore, the main factor here is that Danyelle did not live next door (or even 100 yards away) from the house that Harold was going to stay in temporarily. Danyelle was just visiting her mother during her college summer break when she learned that Harold was staying with his mother, Danyelle’s grandmother.

The Dyers were livid and made phone calls to different government agencies demanding an explanation as to why he was allowed to live with his mother, as if that were a crime. (One has to wonder if the residency restrictions were a factor.) They eventually encountered their legislators. Representative Kyle Hilbert stood in front of the cameras of the main news channels in Oklahoma and promised that he was going to make sure that this situation would never happen again.

A grandstanding politician with a “…feel sorry for someone…” issue that usually applies to only one specific situation. That is the birthplace of a knee jerk law. In this case, an unconstitutional one that provides no public safety whatsoever while serving only the retaliatory desires of one victim.

Before I tell the legislative part of the story, I should provide some explanation of the committee process with respect to the two sessions contained within each Oklahoma Legislature. Each legislature is two years long with two regular sessions. The 56th Legislature encompassed the first session from February to May 2017 and the second session from February to May 2018.

When a bill is introduced and referred to a committee in the first session but is not passed out of the committee it remains in that committee until the end of the legislature, not just end of the first session. It is a dormant bill. During the second session legislators has the option to bring that bill back up.

At the beginning of Oklahoma’s 2018 Session Rep Hilbert introduced HB3051. This was a shell bill creating the “Oklahoma Crime Victims’ Rights Act of 2018.” A shell bill is a bill that does not have any language when it is introduced. The language can be added later in the legislature. It seemed obvious that HB3051 was the bill Rep Hilbert was going to add language to in order to make sure that the Dyer situation, “…would never happen again.”

I contacted Rep. Hilbert’s office on three separate occasions requesting the specific language that was going to be in the bill. Each request was answered with a promise to provide the language but was never given to me.

Also at the beginning of the 2018 session, Senator James Leewright introduced SB1221. This bill proposed increasing the residency restrictions and the loitering law to include the homes of victims. This was legislation that seemed to fit what Rep Hilbert was touting in the media. It was also legislation that I knew would be applied unconstitutionally to everyone on the registry at the time of its enactment. A ruling set down by the Oklahoma State Supreme Court in Starkey v. Oklahoma Department of Corrections in 2013 specifically mandated that the residency restrictions were punitive and could not be applied retroactively without violating the registrant’s constitutional rights.

I met with Sen. Leewright shortly after he introduced SB1221. I explained this constitutional issue to him and offered a one sentence addition to the law to assure its constitutional application: “For persons convicted on or after November 1, 2018…” The Senator chuckled and explained how that would defeat the entire purpose of the bill because it wouldn’t apply to the situation for which it was created. This was an admission that this new law was aimed at one person. He went on to say that if he had his way, the residency restrictions 2,000-foot buffer would be five miles, blatantly demonstrating his attitude concerning registrants.

Quickly we will step back to the 2017 Session. Representative Scott Biggs introduced HB1124. This was another shell bill creating the Criminal Law Act of 2017. This bill went to the House Rules Committee where it went dormant and Rep. Biggs left office.

In the early part of the 2018 Session, Rep. Hilbert had HB1124 withdrawn from the Rules Committee and referred to the House Judiciary Committee with a Committee Amendment adding the language that was identical to Sen. Leewright’s SB1221. In the meantime, Rep Hilbert’s “Oklahoma Crime Victims’ Rights Act of 2018” went dormant in committee and died at the end of the 2018 Session.

Having two identical bills in each chamber of the legislature is an old trick for legislators to assure a certain proposed law will pass. It happens on a regular basis. But pulling an old bill from the first session that was authored by someone else and creating new language for it is not only unusual, but very strange and reeks of deception. And there is only one possible reason for this bait and switch tactic. Rep. Hilbert wanted to “sneak” his unconstitutional legislation through the process without any public scrutiny. He couldn’t chance the challenge of its unconstitutional application to the person it was aimed at because he had to fulfill his grandstanding promise.

Then, well after the new language of HB1124 was passed through committee in the last hours of the deadline date for passing bills through the committees, Sen. Leewright made a committee amendment to SB1221 that removed the introduced language and replaced it with an entirely new type of law. The old bait and switch again. This was the “back up” bill and was no longer required, and died in legislature.

In short, the legislative language originally proposed by Sen. Leewright ended up in a bill that Rep. Hilbert pulled out of a previous session that was authored by a retired lawmaker was signed into law on April 17, 2018 and will be unconstitutionally applied to all Oklahoma registrants on November 1, 2018.

Our public servants are supposed to serve us with transparency and honesty. They should not play games with the legislative process in order to assure that their proposals are not challenged. The protection of the constitutional rights of all people, regardless of their past criminal convictions, should be one of their main priorities. Above everything, the constitutional rights of thousands should never be dismantled for a certain situation that is affecting only a few people, especially when that situation is exaggerated with deception in the media. At least for this case, there were other options that do not require a blanket restriction negating the constitution.

7 comments for “The “Justice for Danyelle Act of 2018”: The Shady Tactics behind another Oklahoma Knee Jerk Law

  1. Mark S.
    June 1, 2018 at 1:15 pm

    This Oklahoma law appears to be very similar to the case of . FORETICH v. MORGAN, 351 F.3d 1198 (CA.D.C.2003). A congressional act aimed solely against one person. The federal court of appeals D.C. unanimously held the act was a bonafide Bill of Attainder against the petitioner Foretich.I am not optimistic about any lawyer who will represent a plaintiff in a sex offender action. Most if not almost all lawyers are tepid, political, watching their own self interests ad nausea. If Mr. English and others could get a steel toed lawyer, they may prevail after reading the Foretich case. That is if the lawyer(s) are intelligent enough to tailor the Foretich case to a state action. They may prevail……….

    • Mark D Nicholson
      June 4, 2018 at 9:23 pm

      Thank you for that informative comment Mark S. I had not considered that perspective at all. You have encouraged me to look into this from that viewpoint. I may even have a steel-toed paralegal take a look. Thanks

      • Will Bassler
        June 4, 2018 at 11:57 pm

        Take a look at this (Are Bills of Attainder the New Currency? Challenging the Constitutionality of Sex Offender Regulations that Inflict Punishment Without the “Safeguard of a Judicial Trial”) https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1058&context=plr with this information in mind take a look at this article where and interned Japanese American was seeking vacation of his wartime convictions on the ground that the government, during World War II, had suppressed, altered, and destroyed material evidence relevant to the issue of military necessity. http://articles.latimes.com/2011/may/24/nation/la-na-japanese-americans-20110525 and think about the Supreme Court 2003 Smith versus doe decision that said the registry was not a formal punishment where the Supreme Court base their decision on false information about high recidivism rates. there were studies going all the way back to the 1960s such as the Jack study from 1967 that showed a re-offense rate for people that had committed sexually related crimes of 3.2% over a 15 year that’s 2/10 of one percent per year. That’s a long ways from the 80% that was quoted to the Supreme Court by federal prosecutors in the 2003 Smith versus doe case. I’ve addressed this issue before in my article (/blog/2015/06/17/time-to-file-a-petition-for-writ-of-error-coram-nobis-in-smith-v-doe.html) as well as the article /blog/2015/08/23/now-the-question-is-what-to-do-about-it.html these were written in 2015 maybe it’s time to re-examine these two articles. we have been improving for years now that the sex offender registry has morphed into punishment and if you take into account the now proven to lower recidivism of less than 1% of the people on the registry then maybe it’s time to readdress the Smith versus Doe decision.

  2. Joe123
    June 2, 2018 at 12:53 am

    Have the Dyers ever heard of the term “restraining order”? That may have taken care of their monumental problem without harming hundreds or thousands’ of other people’s lives.

  3. June 2, 2018 at 4:40 am

    Fortunately, attorneys are emerging with the “steel toes” needed to challenge punitive, ex post facto, and otherwise unconstitutional laws, and some are meeting with success.

    Thank you for an informative article about “knee-jerk” legislation. The laws that created the current sex offender industry that we have today are direct results of that, and it is sad to see that the strategy has not fallen out of favor and terrifying to see that it is still effective in accomplishing its goals.

    • Tim Lawver
      June 11, 2018 at 11:36 am

      Sandy,

      Steel toed shysters are unfortunately compelled to follow precedent established by jurist diction. Rules of cannon flow directly from leadership and thus must be obeyed in practice. Mr. Roberts having overcome ex-post challenge by insisting, “Registration itself poses no affirmative disability…. is passive.” is in error.

      Forced registration removes significantly the right to remain silent. Registration forms demand info, a lot of info!
      Apparently, Mr. Roberts, and Justices: Rehnquist, O’Connor, Scalia, did not recognize the importance of the right to remain silent. I purposefully excluded Kennedy, Thomas because Kennedy tipped his hand in Packingham and Thomas because he is one of us, sexual aggressive men, he often exerts his right to remain silent in SCOTUS rulings.

  4. June 3, 2018 at 7:20 am

    Obviously this law has nothing at all to do with public safety. And it is not even just to make people like Danyelle feel better. It is about hate. That’s all. If that were not the case then the law would have applied to every person convicted of any serious crime, and certainly not just $EX crimes. So that alone makes the law complete BS and un-American.

    Just like the $EX Offender Registries themselves. They are illegal acts of war committed by war criminals. They are no different than any other war criminals and they need to be defeated.

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