March 8, 2011
The new challenges of new "child porn" in a new media world
Regular readers know the many sentencing challenges posed by the proliferation of child porn resulting from the internet and related technologies. And this New York Times article, headlined "Michigan Town Split on Child Pornography Charges," highlights some of the new challenges that new technology is posing for this area of law. Here are excerpts:
People in this economically pressed town near Lake Michigan are divided into two camps: Those who think Evan Emory should pay hard for what he did, and those who think he should be let off easy.
Mr. Emory, 21, an aspiring singer and songwriter, became a household name here last month when he edited a video to make it appear that elementary school children in a local classroom were listening to him sing a song with graphic sexual lyrics. He then showed the video in a nightclub and posted it on YouTube.
Tony Tague, the Muskegon County prosecutor, stands firmly in the first camp: He charged Mr. Emory with manufacturing and distributing child pornography, a crime that carries a penalty of up to 20 years in prison and 25 years on the sex offender registry. “It is a serious, a huge violation,” said Charles Willick, whose 6-year-old daughter was one of the students, all readily identifiable, in the video. “He crossed the line when he used children.”
Mr. Emory, who had gotten permission to sing songs like “Lunchlady Land” for the first graders, waited until the students left for the day and then recorded new, sexually explicit lyrics, miming gestures to accompany them. He then edited the video to make it seem as if the children were listening to the sexual lyrics and making faces in response.
Mr. Emory’s supporters, including the almost 3,000 people who have “liked” the “Free Evan Emory” page on Facebook, say the charge is a vast overreaction to a prank gone astray, and a threat to free expression. “I think they’re making a very huge deal out of it ,and it’s really not that big of a deal,” said Holly Hawkins, 27, a waitress at the Holiday Inn downtown. “None of the kids were harmed in any way.”
Legal experts say the case — and the strong reactions it has drawn from places as far as Ireland and Australia— underscores the still evolving nature of the law when it comes to defining child pornography in the age of Facebook, YouTube and sexting. The Supreme Court has ruled that child pornography is not subject to the same First Amendment protections as adult pornography, since it is assumed that the child is being abused.
But with the rise of technology, said Carissa B. Hessick, an associate professor at the Sandra Day O’Connor College of Law at Arizona State and an expert on child pornography and criminal sentencing, “now we have situations where people are being arrested and charged” in connection with digitally altered images, where no child was abused. There remains much uncertainty about how the law should be applied in such cases, she said. But because most defendants take plea bargains instead of going to trial, the courts are often deprived of the opportunity to sort it out.
Mr. Tague argues that the state statute covers not only filming a child in a sexual activity but also making it appear that a child is engaging in that activity. But Ms. Hessick questioned whether the Michigan law could be applied in Mr. Emory’s case or “whether they’ve overcharged him.”
Even the Muskegon County sheriff, Dean Roesler, whose deputies arrested Mr. Emory after parents complained about the video, acknowledged that the case represented uncharted territory. While he found the video alarming and offensive, Sheriff Roesler said, “I realize the Internet is just a whole new arena that we’re learning to deal with in law enforcement, and actual legislation is having a hard time keeping up.”
March 7, 2011
New report taking "the long view" on Ohio's crowded prisons notes Blakely's impact
The Ohio Criminal Sentencing Commission has released this fascinating new report titled "Prison Crowding: The Long View, With Suggestions." There are lots of interesting part of this document, but these parts from the executive summary strike me as especially blog-worthy:
Most of this report takes you through the recent history of Ohio’s prison population (see A Short Primer on Prison Crowding, beginning on p. 4). As Ohio faces record deficits and record prison populations, that primer should be worth 15 minutes of your time. The table on p. 6 is especially useful. Several informed suggestions designed to ease the problem begin on p. 14. Here are a few of the report’s highlights:
• Ohio prisons now hold about 50,500. That’s 6½ times the number held in 1974. That puts the prison system 31% over its rated capacity, with about 12,500 more inmates than the prisons were built to hold...
• For years, the prison population increased as prison intake grew. However, recent growth in Ohio’s prison population — even with mandatory sentences and scores of bills that increase penalties for particular offenses — is not driven primarily by intake (although it is a factor). It’s largely fueled by increases in inmates’ average length-of-stay...
• In the past 35 years, the only period in which the Ohio prison population remained relatively static was the first decade under S.B. 2, from 1997-2006. That bill increased the actual time served for high level offenders but made tradeoffs for others, including meaningful checks on length-of-stay....
• A peculiar line of U.S. Supreme Court cases led the Ohio Supreme Court to strike down S.B. 2’s key length-of-stay restrictions in 2006. Even when accounting for other factors, these decisions led to an increase in average time served of almost 5 months per inmate. The cumulative “Blakely/Foster effect” so far has been well over 4,000 beds. None of this growth came from tough-on-crime legislation.
Ninth Circuit thoughtfully rejects attack on lifetime supervised release for repeat sex offender
Based on "easy" facts, a Ninth Circuit panel today in US v. Williams, No. 10-30084 (9th Cir. Mar. 7, 2011) (available here) took the time to talk through thougthtfully its rejection of various challenges brought by a sex offender to his sentence to a life term of supervised release. The facts made this case "easy" because the defendant had a prior state conviction of the sexual assault of children and because of [the defendant's] apparent obsession with child rape, as indicated by the pornography he possessed and his own statements."
I suspect even a more sympathetic sex offender defendant with better facts would not have prevailed with constitutional and statutory challenges to a life term of supervised release. At the same time, because I do see some special potential risks and costs involved in the imposition of lifetime terms of supervised release, I hope that such terms do not become too common-place for all federal sex offenders just because they may often (always?) be legally permissible.
'Death Penalty: Should Cost Be A Factor?"
The title of this post is the headline of this article from the Hartford Courant, which also reports on today's discussions by the Connecticut legislature as it is again considering a death penalty repeal bill. Here are excerpts:
Should legislators consider the cost of implementing the death penalty when deciding whether to abolish it? That's one of the questions the legislature's judiciary committee pondered Monday at a hearing on repeal of the death penalty.
Susan Storey, the state's chief public defender, said the enormous cost of putting someone on death row in Connecticut ought to be considered by policy makers. Money devoted to prosecuting such cases would be far better spent on services supporting victims' families, she said.
But state Rep. Al Aldinolfi, R-Cheshire, said cost shouldn't be a consideration when meting out justice. Kevin Kane, the chief states attorney, said extra costs are brought on by death penalty opponents, whose only mission, he said, is "delay, delay, delay."
Lawmakers are considering repealing the death penalty going forward, which supporters say will not impact those currently on death row. But critics say repealing the law, if applied only for future cases, would not withstand a constitutional challenge. Under questioning, Storey acknowledged that her office would be ethically bound to fight on behalf of those currently on death row.
Barry C. Scheck, nationally known law professor and director of the Innocence Project, said there's "no doubt" capital cases are more expensive. But more importantly, Scheck said, money spent on death penalty cases means there's less money available for other criminal justice needs, such as better forensics testing. "Let's have an honest debate," Scheck told lawmakers....
Dr. William Petit, the sole survivor of a 2007 violent home invasion in his Cheshire home, is a well-know death penalty supporter. But on this day he came to testify about the need to allow crime victims to deliver impact statements during the penalty phase of a capital trial. His wife and two daughters were murdered in the attack and arson. One man has been sentenced to death for the attack. A second awaits trial.
Also expected to testify Monday are Roman Catholic Bishop Peter Rosazza of Hartford and James Tillman, who spent 18 years in prison for a crime he did not commit.
Some recent related posts on the costs of capital punsihment:
- "Could Abolishing the Death Penalty Help States Save Money?"
- Indiana Attorney General urges examination of death penalty's costs
- Georgia struggles to pay for a costly capital system
- Great new (though still dated) examination of the death penalty and plea bargaining
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
- NY Times editorial assails "High Cost of Death Row"
- New DPIC report assails costs (and opportunity costs) of death penalty administration
- Is it true that nobody's view on the death penalty can be influenced by its costs?
SCOTUS issues opinions on AEDPA timelines and DNA requests
This morning the Supreme Court issued opinion on two criminal justice procedure issues of note. Here are the details via the fine folks at SCOTUSblog:
Wall v. Kholi (09-868) -- In a unanimous opinion by Justice Alito, The Court affirmed the decision of the First Circuit. The case concerns the time limits for filing a federal petition for habeas corpus under AEDPA, which generally allows inmates one year to file a petition, but tolls the time limit while the inmate’s case is on “collateral review” in the state courts. The Court held that the phrase “collateral review” in AEDPA means judicial review of a judgment in a proceeding that is not part of direct review. Accordingly, state proceedings on an inmate’s motion to reduce his sentence did toll the time to file his federal habeas petition.
Justice Scalia concurred in part.
Skinner v. Switzer (09-9000) -- In a 6-3 opinion by Justice Ginsburg, the Court reversed the decision of the Fifth Circuit. Skinner filed a civil rights suit under Section 1983, seeking access to DNA evidence to challenge his state conviction. The Court held that federal courts have subject matter jurisdiction over such claims, which are properly cognizable under Section 1983.
Justice Thomas filed a dissent joined by Justice Kennedy and Justice Alito.
March 6, 2011
Judge Jack Weinstein takes a field trip to aid his sentencing efforts
US District Judge Jack Weinstein, who long ago secured a place in my Sentencing Hall of Fame, garners still more appreciation from me based on this new AP article. The article, headlined "Veteran federal judge visits drug gang's NYC turf," reports on Judge Weinstein's recent sentencing field trip:
[L]ongtime federal Judge Jack B. Weinstein - 6-foot-2 and looking fit - strolled mostly in silence on Friday around the Louis Armstrong Houses in Bedford-Stuyvesant - the same streets where authorities say armed thugs once terrorized residents with an "open-air drug bazaar."
Weinstein, who's overseeing the case against the crack cocaine crew, had decided it was important to leave his chambers, don his dark overcoat and fedora and visit the defendants' former turf. The outing on a quiet and crisp winter afternoon drew some stares, but was otherwise uneventful. Before slipping into a black van to be driven back to the courthouse, the judge explained that he sometimes needs a firsthand reality check on his cases. "Otherwise," he said, "it gets very abstract."
The 30-minute foray was unorthodox for the formal world of the federal judiciary. But Weinstein, 89, has long had a reputation as a legal maverick.... He handed out life sentences in 2009 in the closely watched case of two police detectives convicted of moonlighting as hitmen for the mob - but only after an appeals court reversed his decision to throw out their convictions based on the statute of limitations. He's also shown distain for harsh sentences for low-level offenders in more obscure cases....
After a flurry of guilty pleas, Weinstein received appeals for mercy from defense attorneys arguing their youthful clients were products of abusive upbringings and deserved a second chance. "Yes, I agree he made some terrible decisions but he has learned from them," the sister of Pedro "White Bread" Torres wrote to the judge.
Last month, Weinstein announced in a court order that he would be visiting the Armstrong Houses under the protection of a deputy U.S. marshal "to assist in sentencing." He invited along Torres' lawyer, Margaret Shalley and prosecutor Daniel Silver.
Shalley said Friday she's hopeful "something good will come of this." Another defense attorney who tagged along, Heidi Cesare, called the outing "unusual." But, she added, "Judge Weinstein is unusual."
"States Prosecute Fewer Teenagers in Adult Courts"
The title of this post is the headline of this interesting front-page article from today's New York Times. Here is how it gets started:
A generation after record levels of youth crime spurred a nationwide movement to prosecute more teenagers as adults, a consensus is emerging that many young delinquents have been mishandled by the adult court system.
Last year, Connecticut stopped treating all 16-year-old defendants as adults, and next year will do the same for 17-year-olds. Illinois recently transferred certain low-level offenders younger than 18 into its juvenile system. And in January, lawmakers in Massachusetts introduced a bill to raise the age of adulthood in matters of crime, and their counterparts in Wisconsin and North Carolina intend to do the same. By year’s end, New York might be the only state where adulthood, in criminal matters, begins on the 16th birthday.
The changes followed studies that concluded that older adolescents differed significantly from adults in their capacity to make sound decisions, and benefited more from systems focused on treatment rather than on incarceration.
A 2010 report by Wisconsin’s juvenile justice commission to the governor, James E. Doyle, and the Legislature found that “for many, if not most, youthful offenders, the juvenile justice system is better able to redirect their behavior,” in large part because of the greater availability of social services.
Most of the studies pointed to a 2005 decision by the United States Supreme Court in Roper v. Simmons that outlawed the death penalty for defendants who were younger than 18 when their crimes were committed, because of the “general differences” distinguishing them from adults — a lack of maturity, greater susceptibility to peer pressure and undeveloped character.
It is more expensive to prosecute a defendant in juvenile court, and opponents of the changes are questioning the costs at a time when states are facing deep budget deficits. In New Hampshire’s House of Representatives, members voted overwhelmingly in 2008 to raise the age at which defendants are considered adults, to 18 from 17, but the bill died in the finance committee because of the projected cost.
In North Carolina, where proposals have failed in the last two legislative sessions, the issue has also largely been about money. “It does not make sense to take a system that all the experts agree does not have the resources to care for the children, and then add two more age groups,” said Edmond W. Caldwell Jr., vice president and general counsel of the North Carolina Sheriffs’ Association, which opposed legislation to send 16- and 17-year-olds to the juvenile courts.
An analysis by the Vera Institute of Justice, a criminal justice research group that has advocated alternatives to prison, found that transferring about 31,000 16- and 17-year-olds to North Carolina’s juvenile system would cost approximately $71 million annually, but generate $123 million in benefits each year, assuming there were fewer arrests over the long term and fewer people in jails and prisons.