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October 27, 2009

Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

I noticed this interesting recent piece on CNN headlined "'Lipstick Killer' behind bars since 1946."  The article is fascinating for various reasons, and here are a few highlights:

William Heirens, the "Lipstick Killer," is believed to be the longest-serving inmate in the United States. He turns 81 on November 15.  Diabetes has ravaged his body, but his mind is sharp.

"Bill's never allowed himself to be institutionalized," said Dolores Kennedy, his long-time friend and advocate. "He's kept himself focused on the positives." The days are spent mostly watching television and reading magazines.  Using a wheelchair and sharing a cell with a roommate in the health unit of Dixon Correctional Center, he still yearns for a chance at freedom.  It is something he has not tasted since 1946.

Heirens has been locked behind bars and walls for 63 years, making inmate C06103 the longest-serving prisoner in Illinois history, state officials say.  According to Steven Drizin, the legal director of the Center on Wrongful Convictions at Northwestern University, Heirens "has served longer than anyone in the U.S. that I can find."

He was put away a year after the end of World War II. It is a dubious record, but fitting for the man dubbed the Lipstick Killer, whose crime spree remains among the most infamous in the history of Chicago...  "Pray for my release," he wrote in a letter dated October 11. "There is no reason to keep this man behind bars," said Drizin. "He meets all the criteria for parole."

While Drizin, who has represented Heirens since 2001, and others passionately plead for his release and prepare to re-petition the state parole board that has consistently refused to free Heirens, others are convinced he is a manipulative murderer.  "He was the bogeyman," said Betty Finn of the man convicted of strangling her sister.  "I don't think you need to feel sorry for him. He chose his life and he chose his actions."...

He pleaded guilty to three counts of murder.  In exchange for the plea, Heirens was spared the death penalty and given three consecutive life sentences.

Heirens has distinguished himself in prison.  He was the first inmate in Illinois to receive a college degree . "He helped redesign the library system in the department of corrections," said Drizin, who also commended Heirens for becoming a "first-rate jailhouse lawyer."   Drizin said Heirens has been eligible for parole nearly every year since the 1970s. 

There are so many notable elements to this interesting story, ranging from claims that Heirens was tortured into a confession back in 1946 to the fact that he was able to avoid the death penalty by virtue of pleading guilty.  It is also interesting and notable that Heirens was only 17 at the time of his crimes; the Supreme Court's consideration of Eighth Amendment standards for juve sentencing in the upcoming Graham and Sullivan cases could arguably have some relevance to the "Lipstick Killer."  Then again, the issue in Graham and Sullivan concerns sentences of life without the possibility of parole for non-homicide crimes, whereas the "Lipstick Killer" is serving three life sentences with the possibility of parole for homicides.

October 27, 2009 in Celebrity sentencings, Graham and Sullivan Eighth Amendment cases, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

"Texas Faith: Are Texans immoral for supporting the death penalty?"

The title of this post is the headline of this new piece from the Dallas Morning News. The piece has thoughtful and extended responses to the question above from more than a dozen diverse clergy members, and here is how the piece sets up the religious inquiry:

In Texas, more than 400 people have been executed since capital punishment was reinstated by the Supreme Court in 1976. Ours is the busiest death chamber in the nation - and Texans overwhelmingly back the death penalty. Polls indicate that nearly three-quarters of Texans support capital punishment.

What is the moral dimension?... Is it moral to support capital punishment? Or are Texans immoral because they support the death penalty?  The responses from our Texas Faith panelists are varied, provocative and well worth reading amid this political and faith-based debate

Some related posts on religion and the death penalty:

October 27, 2009 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack

The latest (beneficial?) litigation front in child porn downloading battles

I just found this effective local article discussing what is becoming an important and very interesting new front in the battle over child porn prosecution and sentencing.  The piece is headlined "Victim of child porn seeks damages from viewers," and here are excerpts:

The Misty series is one of the most popular and readily available kiddie porn videos on the Internet. It's considered a collector's item among pedophiles. Downloading it is a felony. Amy, now 20, remains traumatized by the crimes but became devastated upon learning they have been distributed worldwide. Officials have identified 750 individuals who possess the Misty series, but they believe tens of thousands of copies are out there.

In a novel approach to getting help, she and an attorney have begun petitioning federal courts for restitution against anyone convicted of possessing the Misty series....

The Violence Against Women Act of 1994 includes a section requiring restitution for victims of sex crimes. Whether that extends to defendants convicted of downloading and viewing child pornography remains a hotly contested question across the country. Some judges have awarded Amy millions; others have given her nothing.

Amy, who lives in the Northeast, seeks restitution for physical, psychiatric and psychological care, occupational therapy, transportation, housing, child care, lost income, attorneys' fees and other losses that might result from the crimes that have occurred.  She has described her horror in a letter to courts [which is available here] where she is seeking restitution....

Even though the restitution law has been on the books for 15 years, no one tried to collect from defendants who downloaded and viewed the videos until this year.  Those who produced the videos, such as Amy's uncle, have long been held accountable for payments to the victims. 

Only recently has the Department of Justice begun notifying victims such as Amy by letter that they could be entitled to restitution. More than 2,600 child victims have been positively identified.  Amy and another victim who was brutalized on film, in what's known as the "Vicky" series, began filing requests for restitution earlier this year.

In 20 cases, they have had mixed results.  A federal judge in Florida ordered a defendant to pay Amy $3.2 million, nearly the full amount she sought based on estimates for lost wages and mental health treatment for the rest of her life, but that case is on appeal.  Even if she wins, the defendant, James Freeman, is serving a 50-year prison term and has few assets.

Some child pornography defendants, such as Freeman and Norfolk's Shon Walter, who is serving 23 years in federal prison for looking at kiddie porn, are serving more time than Amy's uncle.  The uncle, convicted of repeatedly raping Amy, filming the attacks and selling the videos, is eligible for parole in 2011 after serving a minimum of 12 years.

Another judge in Florida awarded Amy her full $3.6 million request, but that case is also on appeal.  Most judges awarded Amy and Vicky minimal damages of between $1,000 and $3,000.  Federal judges in Oregon, California, Hawaii and Arkansas and in the Alexandria federal court denied restitution awards for Amy and the Vicky series victim.  The Arkansas judge found that there was no reasonable way to assess a restitution amount, that the victim was not identifiable and that there was no proof of a "causal link" between viewing the images and specific injury to Amy.

The government has appealed that case, which could set up a showdown at the U.S. Supreme Court over the conflicting rulings. 

As regular readers know, I am generally a fan of financial penalties as an alternative to long imprisonment terms.  Consequently, my first instinct is to be support of efforts by child porn victims to seek restitution awards from even those who only download these images.  That said, I do not think it makes much sense for individual downloaders to be on the hook for huge restitution payments. 

Moreover, I hope federal judges eager or inclined to award restitution in this kinds of cases ought also to seriously consider short prison sentences in service to the provisions of 18 USC 3553(a)(7), which require a judge to consider the "need to provide restitution" to victims at the time of sentencing.  It seems obvious to me that long prison terms necessarily will diminish the ability of a defendant to be able to make reasonable restitution payments.

Some related recent federal child porn prosecution and sentencing posts:

October 27, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (14) | TrackBack

Sixth Circuit officially joins bulk of other circuits declaring limits on 3582(c) sentence modifications

The Sixth Circuit today describes effectively the current state of the circuit law concerning sentence modifications pursuant to 18 U.S.C. § 3582(c)(2) in US v. Washington, No. 09-5110 (6th Cir. Oct. 27, 2009) (available here).  Here is how the majority opinion in Washington starts:

Defendant Errol Eugene Washington appeals the district court’s order denying, in part, his motion to reduce and modify his otherwise valid sentence pursuant to 18 U.S.C. § 3582(c)(2).  Washington’s appeal presents an issue of first impression in our circuit: whether the district court, in modifying a sentence pursuant to § 3582(c)(2), has authority under United States v. Booker, 543 U.S. 220 (2005), to reduce a sentence beyond the retroactive United States Sentencing Guidelines amendment range.  For the reasons explained below, we hold that the district court does not have such authority and therefore affirm the judgment of the district court.

For some reason that she fails to explain, Judge Moore does not join the majority opinion in Washington and just concurs separately.

October 27, 2009 in Implementing retroactively new USSC crack guidelines, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

American Law Institute Council votes to withdraw Model Penal Code section on the death penalty

As reported in this postat the Death Penalty Information Center, the "Council of the American Law Institute (ALI) recently voted to withdraw a section of its Model Penal Code concerned with capital punishment because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."   Here are more details from the DPIC:

The Council based its decision on a study it commissioned to look into the practice of the death penalty since the recommendations were made in the Model Penal Code. The recommendations for how to make the death penalty less arbitrary had been adopted in 1962 and were cited by the U.S. Supreme Court in its 1976 opinion allowing a reformed death penalty to be reinstated. Section §210.6 of the Code defines cases appropriate for capital punishment, aggravating and mitigating circumstances, and special sentencing procedures, and was intended to meet significant concerns regarding the practice. This move essentially withdraws ALI from any attempt to fashion an acceptable death penalty because the system has proven to be unworkable.

The study requested by ALI was prepared by Carol and Jordan Steiker [and is available at this link]....

The Council to the Membership of ALI voted against taking a stance on capital punishment, but also voted against undertaking a project to revise or replace section 210.6, while voting in favor of withdrawing the death penalty section from the Model Penal Code.

According to the report submitted by the Council to the Members of the ALI, “Unless we are confident we can recommend procedures that would meet the most important of the concerns, the Institute should not play a further role in legitimating capital punishment, no matter how unintentionally, by retaining the section in the Model Penal Code."

This is an interesting and notable development, though I think it mostly spotlights the strong view of most academics — in contrast to most members of the voting public — that it is preferable to try to end rather than to mend the modern administration of the death penalty.

October 27, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Are prosecutors guilty of "moral disengagement"?

The question in the title of this post is prompted by this interesting-looking piece available via SSRN.  The article by Lawton Cummings is titled "Reconceptualizing Prosecutorial Misconduct Through Moral Disengagement Theory: A Social Cognitive Approach," and here is the abstract:

This Article argues that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging 'moral disengagement' in prosecutors.  'Moral disengagement' refers to the social cognition theory developed by Albert Bandura and others, which identifies the mechanisms that operate to disengage an individual’s moral self-sanctions that would otherwise inhibit the individual from engaging in injurious conduct.  Empirical studies have shown that a person’s level of moral disengagement, as a dispositional trait, is an accurate predictor of the person’s level of aggression and anti-social behavior, and that an individual’s level of moral disengagement can be affected by the social structures within which the person operates.  Legal scholars have applied moral disengagement theory on a social systems level to identify conditions structured into the criminal justice system that encourage moral disengagement in capital juries and in mental heath professionals who are involved in capital cases.

This Article employs social cognition research on moral disengagement to argue that the criminal justice system encourages moral disengagement in prosecutors by providing moral justification for the behavior (the pursuit of justice), diffusing and displacing responsibility (through the division of the truth-finding function among multiple actors), and degrading defendants (dehumanizing them through lack of contact and derogatory labels, and blaming them for their plight).  While these moral disengagement mechanisms provide some social benefit by allowing individuals to serve as prosecutors free of inhibitory self-sanctions, they co-exist with other systemic characteristics that may act in concert with the mechanisms to produce detrimental effects.  While encouraging prosecutors to morally disengage from self-sanctions for harmful conduct towards defendants, prosecutors are afforded almost unfettered discretion in deciding who to prosecute, for what charges, whether to engage in plea discussions, and whether to seek the death penalty.  In addition, prosecutors operate in an environment where they are motivated to obtain convictions and appear 'hard on crime.' This Article argues that such conditions provide the 'perfect storm' for encouraging prosecutors to stretch the bounds of their ethical duties to defendants.

October 27, 2009 in Who Sentences? | Permalink | Comments (4) | TrackBack

October 26, 2009

"The Case Against Juvenile Life Without Parole: Good Policy and Good Law"

The title of this post is the title of this new Findlaw commentary by Kristin Henning, who is Co-Director of Juvenile Justice Clinic and Professor of Law at Georgetown University Law Center.   As the piece's title suggests, the author has a clear view of how the Graham and Sullivan juve LWOP cases ought to be resolved by the Supreme Court.  Here are snippets from the commentary:

In Sullivan and Graham, the Court is not considering whether juvenile offenders should be punished — or punished severely — for their crimes.  The Court is considering the narrow question of whether juvenile offenders should be afforded meaningful opportunities for parole.

Youth offenders, like all offenders, should be held accountable for their crimes — even by life imprisonment. Regardless of the Court's decisions in Sullivan and Graham, the very worst juvenile offenders still may spend the rest of their lives in prison. An opportunity for parole is just that: a chance for a prisoner to show strong evidence of rehabilitation.  If a juvenile offender does not demonstrate change and is deemed a threat to public safety, the parole board will not grant parole.  Victims' rights have long been protected through the parole hearing process, with victims retaining a right to participate and be heard before any decision on parole is granted....

When a child is robbed of the chance to reform, our country is robbed as well.  The overwhelming majority of juvenile offenders can and do become thriving, productive citizens.  This is not an unattainable ideal — it is an irrefutable truth, supported by the research of acclaimed scientists and the stories of inspiring youths like Kareem Watts.

This fall, the Supreme Court has the chance to follow the law — and ensure that Joe Sullivan's and Terrance Graham's path becomes the road not taken for other juvenile offenders.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

October 26, 2009 in Graham and Sullivan Eighth Amendment cases, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Two new pieces on the pace of judicial appointments in the Obama era

Thanks to How Appealing, I discovered these two notable new pieces on judicial appointments during the early Obama era:

The concluding paragraph of the piece from Brookings provides the basic take-away for now:

Probably the two most striking findings about this early comparative look at the current and most recent administrations’ early nominees are: 1) the relatively paucity of Obama administration nominees, and 2) the delay in full Senate action on those nominees — quick Judiciary Committee hearings but little more.  It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics — or some combination of all three.

I find all these trends notable, important and distressing from a sentencing perspective.  As I have noted in a lot of prior posts, the always-present and often-pressing legal issues involved in sentencing law and policy are uniquely directed shaped by the work of lower court judges.  The early failure of President Obama to begin reshaping the federal judiciary surely means an early missed opportunity to move modern sentencing law and policy in a new direction.

Some related new and old posts:

October 26, 2009 in Who Sentences? | Permalink | Comments (3) | TrackBack

Ohio having a hard time finding doctors to help with revising execution protocol

My local paper has this new piece, headlined "Ohio struggles to find doctors to offer execution advice," which reports on the challanges the state is facing in getting expert medical help with its review of its lethal injection protocol. Here is how the piece starts:

Finding medical professionals willing to advise Ohio on the best way to put condemned inmates to death is proving difficult because of ethical and professional rules, the state's top attorney said.  The rules -- which generally prohibit doctors, nurses and others from involvement in capital punishment -- are deterring those professionals from speaking publicly or privately about alternatives to the state's lethal injection process, Attorney General Richard Cordray said.

"A small number of promising leads have emerged, but identifying qualified medical personnel willing and able to provide advice to the state regarding lethal injection options continues to be challenging and time-consuming," Cordray said in the Friday filing in U.S. District Court.

Executions are on hold in Ohio while the state develops new injection policies following a Sept. 15 execution that was stopped because the inmate had no usable veins.  The state has reached out to judges, police and lawmakers for help trying to find medical professionals willing to talk to the state, according to the filing written on Cordray's behalf by Charles Wille, head of Cordray's death penalty unit. Cordray also said five lawmakers he didn't identify have agreed to try to find medical staff to help.

The state has a two-year, $33,200 contract with just one doctor, Mark Dershwitz of Massachusetts, a lethal injection expert who frequently testifies on behalf of states in lethal injection cases. Dershwitz, an expert witness for Ohio at a March trial challenging Ohio's injection system, is the only doctor the state is currently talking to, said Julie Walburn, a prisons department spokeswoman.

Paging Dr. Jack Kevorkian ..., Doctor, it seems that you are needed in Ohio. 

October 26, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

The new medical marijuana regulatory challenge for states and localities

This morning's New York Times has this intriguing new article on medicial marijuana regulation, which is headlined "States Pressed Into New Role on Marijuana."  Here are excerpts:

For years, since the first medical marijuana laws were passed in the mid-1990s, many local and state governments could be confident, if not complacent, knowing that marijuana would be kept in check because it remained illegal under federal law, and that hard-nosed federal prosecutors were not about to forget it.

But with the Justice Department’s announcement last week that it would not prosecute people who use marijuana for medical purposes in states where it is legal, local and state officials say they will now have to take on the job themselves.

In New Hampshire, for instance, where some state legislators are considering a medical marijuana law, there is concern that the state health department — already battered by budget cuts — could be hard-pressed to administer the system. In California, where there has been an explosion of medical marijuana suppliers, the authorities in Los Angeles and other jurisdictions are considering a requirement that all medical dispensaries operate as nonprofit organizations.

“The federal government says they’re not going to control it, so the only other option we have is to control it ourselves,” said Carrol Martin, a City Council member in this community north of Denver, where a ban on marijuana dispensaries was on the agenda at a Council meeting the day after the federal announcement.

At least five states, including New York and New Jersey, are considering laws to allow medical marijuana through legislation or voter referendums, in addition to the 13 states where such laws already exist.  Even while that is happening, scores of local governments in California, Colorado and other states have gone the other way and imposed bans or moratoriums on distribution even though state law allows it.

Some health and legal experts say the Justice Department’s decision will promote the spread of marijuana for medical uses because local and state officials often take leadership cues from federal policy. That, the experts said, could lead to more liberal rules in states that already have medical marijuana and to more voters and legislators in other states becoming comfortable with the idea of allowing it. For elected officials who have feared looking soft on crime by backing any sort of legalized marijuana use, the new policy might provide support to reframe the issue.

Ain't it cool to be able to watch laboratories of democracy at work.  I sure hope we see lots of different kinds of experimenting with marijuana rules and regulations, as well as lots of different efforts to study and assess which regulatory structures prove to be most effective in balancing personal liberty and public safety.

Some recent related posts:

October 26, 2009 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Budget kills Hinds capital cases: DA says Hinds can't afford death-penalty prosecutions"

The title of this post is the headline of this notable local article from Mississippi.  Here are excerpts:

The Hinds County district attorney's office had been considering the death penalty against the suspects in the two unrelated [brutal murders] but now says, because of budget issues and other factors, seeking capital punishment in case of a conviction is now off the table.  "We won't be doing as many of those (death-penalty cases)," District Attorney Robert Shuler Smith said.

Hinds County cut about 70 jobs, delayed the opening of a jail expansion, denied departments' requests for new equipment, scaled back on contracted services such as janitors, and left less than $179,000 in reserve for the budget year that began Oct. 1.  The cuts were necessary because the proposed revenue of $56.3 million for fiscal 2010 was outweighed by estimated expenses of $57.2 million, officials said.

Death penalty cases are more expensive than others. When there is a death-penalty case, the jury is sequestered in a hotel and provided meals during the duration of a trial.  Longtime Hinds County Circuit Clerk Barbara Dunn estimates the cost at more than $15,000 for a death-penalty trial, depending on factors such hotel and meal costs.  The cost of a non-death penalty case would be significantly lower, she said. Another additional cost is the use of expert witnesses.

This article effectively spotlights how the high costs (and the uncertain benefits) of seeking capital justice is helping to slowly kill the death penalty in many jurisdictions.

Some recent related posts on the costs of capital punsihment:

October 26, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Notable press stories noting Obama's lack of clemency action

It is sad, annoying and telling that the mainstream American press is now talking about President Obama's failure to pardon the long dead boxer Jack Johnson (see here and here), rather than about his failure to grant a single clemency to a live person more than nine months into his Term.  P.S. Ruckman has this definitive post on this topic, which concludes this way:

The power to forgive is not a matter of sport, and should not be the fodder of publicity hounds or the passing pet project of Hollywood elites.  The clemency power should used to address the real-life punishments and disabilities of the living.  It should not be reduced to (or confused with) a mechanism to mollify the whims of unrelated parties decades after the end of a life -- and, of course, all meaningful punishment and disability.  While it may make members of Congress feel good about themselves to pat each other on the back, after the fact, for a feigned accomplishment, our prisons continue to hold individuals who deserve freedom (or at least a chance at freedom), and our society has citizens who have long since fulfilled the requirements of justice yet continue to feel the sting of punishment.  Mr. President, they deserve your attention first.

Valuably, the media across the pond link the Jack Johnson story to the broader story of President Obama's failure to grant any clemencies to date in this article from The Sunday Times.  Here is one snippet from that piece:

The omission [in exercising the clemency power] may partly be due to a bureaucratic breakdown in the Justice Department, which is responsible for recommending presidential action in clemency cases. Legal scholars also suspect that Rahm Emanuel, Obama’s chief of staff, is implacably imposed to any initiative that might be criticised as softness on crime.

“Pardoning used to be considered a part of the routine housekeeping business of the presidency and hundreds of grants were made every year, without fanfare, to ordinary people,” said Margaret Colgate Love, a lawyer specialising in clemency requests.  “But the system broke down in the Clinton administration and the Justice Department’s pardon office has become a place where petitions for presidential mercy go to die.”

Some related posts on clemency:

October 26, 2009 in Clemency and Pardons | Permalink | Comments (2) | TrackBack

October 25, 2009

"Prosecutors Turn Tables on Student Journalists"

The title of this post is the headline of this notable article in this morning's New York Times.  Though not quite a sentencing story, the piece provides an interesting object lesson in how some prosecutors respond when their work is closely scrutinized.  Here is how the piece begins:

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves.

The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas. Lawyers in the Cook County state’s attorney’s office say that in their quest for justice in the old case, they need every pertinent piece of information about the students’ three-year investigation into Anthony McKinney, who was convicted of fatally shooting a security guard in 1978. Mr. McKinney’s conviction is being reviewed by a judge. Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

Northwestern University and David Protess, the professor who leads the students and directs the Medill Innocence Project, say the demands are ridiculously overreaching, irrelevant to Mr. McKinney’s case, in violation of the state’s protections for journalists and a breach of federal privacy statutes — not to mention insulting.

John Lavine, the dean of the Medill School of Journalism, said the suggestion that students might have thought their grades were linked to what witnesses said was “astonishing.” He said he believed that federal law barred him from providing the students grades, but that he had no intention of doing so in any case..

A spokeswoman for Anita Alvarez, the Cook County state’s attorney, who was elected last fall, said the prosecutors were simply trying to get to the bottom of the McKinney case.

October 25, 2009 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Extended First Amendment analysis of whether sex offenders can be banned from church

Over at Dorf on Law, Mike Dorf has this post with an extended discussion of the question in the title of his post: "Can Sex Offenders Be Barred From Church?"  Because I am not a First Amendment expert, I cannot take issue with the much of his constitutional analysis, but I was both struck and troubled troubled by Mike's apparent willingness to embrace the idea that a state always has a strong justification for seeking to keep any and all sex offenders away from any and all places in which children might be found. 

Specifically, at the end of his post, Mike says this: "Is there a compelling interest in keeping registered sex offenders away from children?  Of course."  I am left wondering if "compelling interest" analysis is this easy.  Some (perhaps many) "registered sex offenders" have not harmed a child and likely pose no special threat to children.  Registered sex offenders include  folks whose only victim was an adult and who engaged in fully consentual sex acts (such as a female prison guard who had sex with one of her prisoners).  Do states so obviously have a "compelling interest" keeping these kinds of registered sex offenders away from all children in all settings?

More fundamentally, is Mike suggesting that any and all registered sex offenders could be categorically prohibited from ever going to a public sporting event or a political rally or a movie or even walking down the street because children might possibly be at the event or the rally or the movie or the street?  I fully understand the gut instinct that we want to protect children from even marginally risky people in inherently risky places, but I am troubled by any analysis that is so quick to assume that all registered sex offenders are always so risky that they can and should be treated as if they were radioactive. 

Some recent related posts:

October 25, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack