August 24, 2010
The logic and rhetoric that drives ever harsher sentences for downloading child pornographyRegular readers know that there is an on-going debate (resulting in considerable sentencing disparity) concerning the harshness of the federal sentencing guidelines for child pornography offenses. Against this backdrop, I found this new commentary at the Huffington Post by Lisa Madigan, the Illinois Attorney General, quite telling. The piece is headlined "No Sympathy for Those Who Traffic in Child Porn," and here are excerpts:
Recently, a Chicago newspaper printed an editorial titled, "Sex-offender limits sometimes go too far," that amazingly sought sympathy not for the thousands of children who fall victim to sex crimes each year in Illinois, but rather for a convicted child pornographer.
The assertion was that this man, "Scott," deserves to be pitied because his life is more difficult thanks to his placement on the Sex Offender Registry. What nonsense. I find this argument both misleading and insensitive to the true victims of these heinous crimes.
Scott gets no compassion from me. I reserve my sympathy for those children among the 15,000 pornographic images discovered on his computer. These are the real victims of criminals like Scott who traffic in child pornography. Scott made a choice to ruin his life. My concern is that his horrid choice destroys the lives of many innocents who get no choice....
Recently, my office went after sex offenders on MySpace.com -- requiring the social networking site to provide information on any sex offenders maintaining MySpace profiles. This led to a federal investigation, conviction and life sentence last year for a Granite City man who was not only procuring child pornography but was forcing a local child to engage in sexual activity so he could produce his own.
Unfortunately, such cases are not rare. One national study indicated 40 percent of those arrested were dual offenders, possessing child pornography and sexually victimizing children. Don't tell me pornography is a victimless crime. A total of 24,494 sex offenders are registered in Illinois. More than 81 percent of those are child sex offenders.
The subject of the recent newspaper editorial, Scott, admits he installed special software on his computer, which each night would go trolling for pornography from the Internet -- including child pornography. Scott admits he knew that possessing child pornography is a crime. Yet now Scott is perplexed he would suffer the consequences of his crimes.
These consequences are exactly what the public demands. The sex offender registry was designed to protect victims, especially children, from these unspeakable crimes. I have no tolerance for those who wish to turn logic upside down and suggest that people like Scott are somehow worthy of our sympathy.
Such twisted judgment seeks a less stringent enforcement of sex offender laws. Too many children already suffer at the hands of sex offenders. The last thing our children need is less protection.
I realize no matter how severe the potential punishment, sex offenders will continue to be a threat. We also need to educate people on how not to fall prey. My office has provided Internet safety training and education to more than 128,000 students, parents and teachers and more than 10,000 law enforcement officers over the past four years.
We will continue these efforts. Such training is vital in a world that so easily and so often brings young children in contact with the Internet -- an amazing resource with equally amazing dangers.
However, we must also be vigilant in battling those who seek to minimize the threat posed by these online predators. In this case, misplaced sympathy is a very dangerous emotion.
Ironically, the Huffington Post page on which this commentary appears incorporates a twitter feed providing links to all sorts of on-line porn. Perhaps more proof of AG Madigan's point that the internet is "an amazing resource with equally amazing dangers."
Some related prior federal child porn prosecution and sentencing posts:
- "Department of Justice Releases First National Strategy for Child Exploitation Prevention and Interdiction"
- Major reasonableness ruling from Second Circuit in child porn downloading case
- Fascinating data on recent trends and circuit specifics for federal child porn sentences
- Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?
- "Federal judges argue for reduced sentences for child-porn convicts"
- Thorough and thoughtful district court defense of federal child porn guidelines
- "Judge Weinstein Takes On Child Pornography Laws"
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- "Disentangling Child Pornography from Child Sex Abuse"
- Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders
"Sentencing likely to await Blagojevich retrial"The title of this post is the headline of this new AP piece explaining why former Illinois Gov. Rod Blagojevich is unlikely to be sentenced until after prosecutors retry him on the many counts on which his first jury could not reach a verdict. Here are a few snippets from the start of the article:
He faces a prison term of up to five years — though how and when he is sentenced depends on a host of factors, including plans by prosecutors to retry him on 23 deadlocked counts and Blagojevich's own vow to appeal the conviction.
Lying to authorities carries the least severe penalty of the charges Blagojevich faced in that first trial, and some legal observers believe that — based on sentencing guidelines — he could get six months to three years on that charge alone....
But even without a retrial of Blagojevich, the governor known for his coifed haircut and expensive suits likely would not be crossing through a prison gate anytime soon. It can normally take more than a year to get to sentencing after a conviction as officials compile sentencing reports and the appeals process runs its course. And this case is far from straightforward.
There are so many potential complications in sentencing Blagojevich right away that all sides, including the judge, will likely agree to wait, said Jeff Cramer, a former federal prosecutor. "There is no way he's sentenced before a second trial," he said. "It's not happening."
No one knows yet when a second trial will even get under way. It could be a few months or more than a year. A hearing set for Thursday could shed light on that.
August 23, 2010
Interesting split Sixth Circuit ruling on Blakely-based habeas action from Ohio
Hard-core Blakely fans and/or hard-core habeas fans will want to be sure to check out today's work by a split Sixth Circuit today in Cvijetinovic v. Eberlin, No. 08-3629 (6th Cir. Aug. 23, 2010) (available here). Here is how the majority opinion in Cvijetinovic gets started:
Warden Michelle Eberlin appeals the district court’s order conditionally granting Ohio prisoner Alexsandar Cvijetinovic’s petition for a writ of habeas corpus. In the petition, Cvijetinovic claimed that his presumptive sentence was enhanced on the basis of judge-found facts, a practice forbidden by the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). Though it determined that Cvijetinovic’s Blakely claim was procedurally defaulted, the district court granted relief, holding that he had established cause and prejudice. The district court’s conclusion with respect to cause was premised on the notion that, at the time of his default, the legal basis for Cvijetinovic’s claim was not reasonably available. However, the principle at the heart of Blakely had already been articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), which spawned myriad Blakely-type claims in the months preceding Cvijetinovic’s appeal. We therefore reverse.
Here is how the dissent by Judge Keith in Cvijetinovic gets started:
The majority’s interpretation of Engle v. Isaac, 456 U.S. 107 (1982), in line with Eleventh Circuit precedent, would require defense counsel to anticipate and articulate constitutional arguments that are contrary to controlling Supreme Court precedent. See, e.g., Pitts v. Cook, 923 F.2d 1568, 1571 (11th Cir. 1991). This reading is not only unfounded but also poses worrying policy concerns. Because counsel’s failure to articulate a Blakely claim prior to Blakely, itself, constitutes sufficient cause to excuse procedural default, I respectfully dissent.
Talk in China of economic crimes no longer being punishable by deathAccording to this new AP article, "China, which executes more people each year than any other country, said Monday it is considering dropping capital punishment for economic crimes." Here's more:
A draft amendment to the country's criminal code proposes cutting 13 "economy-related, non-violent offenses" from the list of 68 crimes punishable by the death penalty, the official Xinhua New Agency said.
It is not known when the draft will become law. Xinhua said it was submitted for a first reading to the Standing Committee of the National People's Congress. A draft usually has two or three readings before it is voted on.
Joshua Rosenzweig, research manager for the U.S.-based human rights group Dui Hua Foundation, said the draft was welcome but was unlikely to reduce the number of executions in China if it becomes law because it targets crimes that seldom, if ever, have the death penalty applied to them.
Texas counties having success with home-detention technocorrections alternative punishmentThis local story from Texas provides another example of all the cost-saving innovations in corrections finding a measure of success in the Lone Star State. The piece is headlined "Dallas County's alternative sentencing program lets low-level offenders do time at home," and here is how it starts:
What's the difference between a stark jail cell and the comforts of home? For a few lucky Dallas County criminals, the answer is nothing. Under the county's alternative sentencing plan, certain low-level offenders discharge their sentences under ankle-monitored house arrest, giving them the opportunity to keep their jobs, eat home-cooked meals and enjoy the interaction of family and friends.
"I think the program is better than jail," said Arletha Baker, who was released from the program's restrictions recently. "You get to touch your family. ... I have a very helpful family."
Alternative sentencing is also helping Dallas County's bottom line. Since its inception Sept. 1, it has saved the county $366,016. And officials expect that figure to reach $400,000 by the initiative's first anniversary in two weeks. That's double the $200,000 budgeted by county commissioners last year to launch the program, which they approved after observing a similar program in Brazos County.
Designed to replace the old work-release program that allowed offenders to work during the day and then return to jail on nights and weekends, alternative sentencing is used for criminals with offenses ranging from misdemeanors such as hot-check writing, low-level theft and DWIs to state jail felonies that have been reduced to misdemeanors.
Notably, as the article details, this form of alternative sentencing incorporates technocorrections and it "is not without critics":
Kevin Brooks, chief of the felony trial bureau for the district attorney's office, said, "There are real concerns" with the program and that the DA's office does not support it. He said it does not help public safety and that participating offenders are "not being punished for the offense they're convicted of."
He said he would prefer a revamped work-release program in which offenders paid the full cost to the county. "Where's the punishment for your offense, [if they] have the creature comforts of home?" Brooks said.
But County Commissioner John Wiley Price, who heads the county's jail population committee, said "You can't lock up the world. At the end of the day, you've got to manage your resources." Offenders, who are called clients, pay about 90 percent or more of the cost for their monitoring equipment, as opposed to the $10 per day work-release offenders paid the county.
"The monitoring fees come out to a reasonable amount," said Rebekah Truxal, program manager for alternative sentencing. She said the cost is $8 to $10 per day for most clients, plus the cost of keeping an active home phone during their sentence. For DWI cases, judges can require additional monitoring that increases the cost.
The monitors are programmed to allow clients to travel to their jobs or school, if they are students, at certain times of day and then return directly home. They are accurate to within three feet, officials say.
August 22, 2010
Putting the punishment of stoning in some contextToday's New York Times has this very interesting piece about a notorious punishment, which is titled "Crime (Sex) and Punishment (Stoning)." Here are excerpts:
It may be the oldest form of execution in the world, and it is certainly among the most barbaric. In the West, death by stoning is so remote from experience that it is best known through Monty Python skits and lurid fiction like Shirley Jackson’s short story “The Lottery.”
Yet two recent real world cases have struck a nerve: a young couple were stoned to death last week in northern Afghanistan for trying to elope, in a grim sign of the Taliban’s resurgence. And last month, an international campaign rose up in defense of an Iranian woman, Sakineh Mohammadi Ashtiani, who had been sentenced to death by stoning on adultery charges.
Much of the outrage those cases generated — apart from the sheer anachronism of stoning in the 21st century — seems to stem from the gulf between sexual attitudes in the West and parts of the Islamic world, where some radical movements have turned to draconian punishments, and a vision of restoring a long-lost past, in their search for religious authenticity.
The stoning of adulterers was once aimed at preventing illegitimate births that might muddy the male tribal bloodlines of medieval Arabia. But it is now taking place in a world where more and more women demand reproductive freedoms, equal pay and equal status with men — in parts of the Islamic world as well as throughout the West....
The Taliban ... defined themselves in the 1990s largely through the imposition of an incredibly harsh and widely disputed version of Islamic law, under which stonings for adultery became common. Last week’s stoning, by hundreds of villagers in Kunduz Province, was a dire indicator of where Afghanistan may be headed.
“There is no way to say how many stonings took place, but it was widespread” when the Taliban ruled, said Nader Nadery, a senior commissioner on the Afghanistan Independent Human Rights Commission. “Often the man escaped, and the woman only was punished, especially if he had connections or was a member of the Taliban.” Other sexual crimes were accorded similarly grotesque penalties: homosexuals, for instance, had a brick wall collapsed onto them.
Stoning is not practiced only among Muslims, nor did it begin with Islam. Human rights groups say a young girl was stoned to death in 2007 in Iraqi Kurdistan’s Yazidi community, which practices an ancient Kurdish religion. The Old Testament includes an episode in which Moses arranges for a man who violated the Sabbath to be stoned, and stoning probably took place among Jewish communities in the ancient Near East. Rabbinic law, which was composed starting in the first century A.D., specifies stoning as the penalty for a variety of crimes, with elaborate instructions for how it should be carried out. But it is not clear to what extent it was used, if ever, said Barry Wimpfheimer, an assistant professor of religion at Northwestern University and an expert on Jewish law.
Some Muslims complain that stoning — along with other traditional penalties like whipping and the amputation of hands — is too often sensationalized in the West to smear the reputation of Islam generally. Most of these severe punishments are carried out by the Taliban and other radicals who, many Islamic scholars say, have little real knowledge of Islamic law. Stoning is a legal punishment in only a handful of Muslim countries — in addition to Iran, they include Saudi Arabia, Somalia, Sudan, Pakistan and Nigeria, but it is very rarely put to use.
Stoning is not prescribed by the Koran. The punishment is rooted in Islamic legal traditions, known as hadiths, that designate it as the penalty for adultery. While the penalty may seem savage to Western eyes, scholars say it is consistent with the values of Arabian society at the time of Muhammad, Islam’s founding prophet.
Adultery “was considered to offend some of the fundamental purposes of Islamic law: to protect lineage, family, honor and property,” said Kristen Stilt, an associate professor at Northwestern University who has written about Islamic law. “It was a tribal society, and knowing who children belonged to was very important.”
That may help explain the link between sexual crimes and stoning, as opposed to another form of execution. A crime that seemed to violate the community’s identity called for a communal response. Certainly the special horror of stoning is rooted in the prospect of being pelted to death by one’s own friends, neighbors and relatives.
But Islamic law requires very strict conditions for a stoning sentence: four male eyewitnesses must attest to having seen the sexual act and their accounts must match in all details, or else they can be subject to criminal penalties, said Aron Zysow, a specialist on Islamic law at Princeton University. Some scholars even argue that the stoning penalty is meant more as a symbolic warning against misbehavior than as a punishment to be taken literally.
"Difference in sentencing of two juveniles highlights difficult issue"The title of this post is the headline of this local story out of California. Here is how it gets started:
A 14-year-old south Modesto boy who killed a young father at a child's birthday party will likely die in prison. Angel Cabanillas, now 19, stands to serve at least 100 years behind bars. But just 40 miles south in Merced, a boy who was 15 when he committed a fatal drive-by to impress his fellow gang members is set to be sentenced Monday to 31 years in prison. He could be out by the time he's 42.
The disparity in their sentences reflects a divide in how judges and prosecutors handle violent crimes committed by children. The topic of whether minors can be sentenced to die in prison has recently come under scrutiny by the U.S. Supreme Court and the California Legislature, and their discussions could change the rules for cases like Cabanillas.'
In May, the Supreme Court ruled juveniles cannot be sentenced to life in prison without parole for non-homicide crimes. Denying children who commit lesser crimes the opportunity to ever get out of prison constitutes cruel and unusual punishment and runs counter to a worldwide consensus against such harsh sentences for juveniles, the court wrote. But while the decision did not specifically address what can happen to children convicted of murder, legal experts say recent court rulings regarding juvenile justice have shown a trend toward leniency.