June 14, 2011
Podcast on "Weinergate" over at RocketLawyer
Welcome back to the Legally Easy Podcast, presented by Rocket Lawyer. This week, we tackle the ongoing kerfuffle around Anthony Weiner’s lewd messages and the legal implications they’ve raised. Were his actions illegal or just inappropriate? Will he be removed from office? Has he learned the difference between a direct message and a public tweet? We talk to an expert to find out.
June 13, 2011
A notable example of a federal child porn offender getting probation sentence
Regular readers are familiar with persistent complaints about the severity of the federal child porn guidelines and the frequency with which federal judges impose below-guideline sentences in cases involving "mere" downloading of illegal images. But it still seems rare for a federal child porn offender, especially one who possessed a lot of illegal images, gets a federal sentence of probation. This local New Jersey story, however, seems to report on such a sentence:
A 20-year-old Paramus man was sentenced Monday to five years’ probation, including a year of home confinement, for possessing hundreds of images of child pornography on his computer.
Citing Justin Birdsall’s young age at the time of the offense and the views of two medical experts that he is not likely to repeat it, U.S. District Judge Dennis M. Cavanaugh agreed to spare him a prison term. Noting that some people believe those who collect child pornography should be locked up and the key thrown away, the judge said he hoped the sentence would “assist rather than cause a young life to spiral out of control.”
The judge said a distinction must be drawn between those who consume child pornography and those who produce it. He concluded that the sentencing guidelines and enhancements sought by the government were inappropriate in this case. “The defendant needs supervision and further psychological treatment, and I believe he’s going to get that,” Cavanaugh said, in sentencing Birdsall to a probationary term with house arrest.
Ridgewood attorney Susan C. Cassell implored the judge not to send her client to prison, arguing he has been punished enough by having a felony conviction that will follow him for rest of his life, having to register as a sex offender wherever he lives, and never being able to expunge his record.
Birdsall pleaded guilty in March, admitting he had more than 600 pornographic images featuring children on his home computer when he was arrested in December 2009. He was living with his parents and three younger siblings at the time. Agents found about 1,800 images and 74 videos of child porn that Birdsall admitted collecting since he was 17, the FBI said. Birdsall used a file-sharing program to download many of the images while he was attending college, said Assistant U.S. Attorney Ronnell L. Wilson.
Some of the images depicted children as young as 5 years old engaged in sexually explicit conduct, the prosecutor said. As a college student, Birdsall should have realized that images of children being raped are illegal, Wilson said. Birdsall had faced up to 10 years in prison and a $250,000 fine.
As a condition of probation, he will be confined to his home, with location monitoring, for one year, except to go to work, attend religious or community services, and pursue educational activities. He must also submit to computer monitoring, have limited contact with minors, register as a sex offender, and participate in a mental health program until discharged by the court.
Because the Third Circuit upheld a way-below-guideline child porn sentence in its big split Grober ruling, I suspect the government may not even bother to appeal this probationary sentence.
In memoriam: Professor David Baldus
I am saddened to learn from this post at The StandDown Texas Project that Iowa Law Professor David Baldus died early this morning. As StandDown spotlights, Professor Baldus "was known for his studies on race and the death penalty, especially his landmark work [which was at the center of] the 1986 Supreme Court case, McCleskey v. Kemp. He was the co-author of Statistical Proof of Discrimination (1980) and Equal Justice and the Death Penalty (1990)."
Thoughtful comments on the ugly ACCA bigger picture from an informed reader
A federal public defender today sent me a terrific e-mail about ACCA litigation, which he has allowed me to reprint in full below:
Between and among the various opinions written in Sykesand upon commentary found at SL&P and other places (i.e., the New York Times), I fear that a meaningful opportunity for more meaningful discussion is being missed.
The litigiousness of the Armed Career Criminal Act, as colorfully depicted by Justice Scalia, involves, invites, and permits all involved in the federal criminal justice system to approach the meaningful task of sentencing on "can't see the forest for the trees" terms. By this I start from the proposition that reasonable minds can surely disagree as to whether an armed recidivist like Sykes should properly receive a sentence of not more than 10 years (and, often, significantly less) or one of not less than 15 years (and, sometimes, slightly longer). But the proper and just resolution to such disagreements simply shouldn't turn doctrinally upon whether or not the Indiana crime (and, pursuant to the categorical approach, it is indeed the Indiana crime, rather than the crime that Sykes actually committed) of vehicular flight from an officer is or is not sufficiently similar to the crimes of burglary, arson, extortion, or explosives in terms of the kind and degree of purposeful risked harm at issue. To premise a significant decision involving literally years of a man's liberty, with the attendant cost attached to the deprivation of liberty, upon such minutia seems only slightly more principled than deciding between a sentence of A or a dramatically greater sentence of B upon the outcome of a game of rock-paper-scissors (the latter being a methodology less susceptible of frequent Supreme Court litigation than the ACCA).
The point here is not that Sykes is wrongly decided nor is it that the nuances of a defendant's prior criminality have no place at the figurative (and, for that matter, literal) sentencing table. Rather, the point is that premising punishment in substantial manners upon such fine lines seems inconsistent with the Section 3553(a) "parsimony" clause: if not more than 10 years is "sufficient" for Sykes if the Indiana crime is not violent, how does at least 15 years become "sufficient but no greater than necessary" simply upon the same Indiana crime being deemed "violent"?
And, as you know, the cited concern extends beyond statutory minimums to guideline application. A recidivist drug dealing client of mine is on the verge of signing a plea agreement that stands for either of two outcomes: (1) his post-acceptance number, prior to an anticipated reward for substantial assistance, will be 121 months; or (2) the relevant number will be 262! The more than double-down contingency has nothing to do with his federal offense, his personal characteristics, or even an actual assessment of his prior criminality. Instead, more than 10 pre-5K years of his life turn on whether or not a court's contemplation of note 1 to Section 4B1.2, with an attendant Shepard analysis of the relevant statute and underlying state court file, results in a finding that the client's 2001 conviction for "maintaining a drug trafficking place" in violation of Wisconsin law constitutes a "controlled substance offense" for purposes of career offender status. Comparable to Sykes, reasonable minds may differ as to whether my client should get 10 years or 22 years but contemplation of the meaningful matter should be more principled than it will be.
I wholly agree with this commentary and its justifiable consternation about the impact of criminal history diktats on federal sentencing outcomes. And, among other important insights, this commentary spotlights that detailed mandatory sentencing systems can often get bogged down pursuing a (false and confusing) form of highly formalized consistency based on the interpretation of opaque legal rules rather than staying focused on producing a (transparent and understandable) form of substantive punishment justice for each individual offender.
Some related recent posts on Sykes:
- SCOTUS gives wins to the prosecution in DePierre and Sykes
- Justice Scalia advocates radical(?) and justified(?) judicial activism to deal with vague ACCA provision
- If nothing else, ACCA merits credit for creating interesting coalitions of Justices
Three new criminal justice cert grants from SCOTUS
Thanks to the terrifically helpful live-blogging by the SCOTUSblog folks, I can provide this super-quick review of the three new cases involving criminal justice issues taken up today by the Justices:
Gonzalez v. Thaler, limited to following question: was there jurisdiction to issue a COA and adjudicate petitioner's appeal; was the application for a writ of habeas corpus out of time due to the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
Setser v. United States, [asking:] Does a District Court have the authority to order a federal sentence to run consecutive to an anticipated but not imposed state sentence? Is it reasonable for a district court to provide inconsistent instructions on how federal and state sentences interact?;
Smith v. Louisiana, the question involves cumulative error claims [in a capital case]. It seems fairly fact-bound.
Though one never knows how cases will evolve through briefing, argument and ruling, I doubt that any of these three new SCOTUS cases will be blockbusters. All three appear to deal with relatively narrow procedural issues arising in only a very limited set of cases.
States persist in resistance to Adam Walsh Act sex offender rules five years latter
This effective local article, headlined "Region resists fed sex offender rules," spotlights the continued resistance of many states to the federal rules for sex offender registries created by Congress in 2006 through the Adam Walsh Act. Here are excerpts:
Virginia, Maryland and the District are struggling to comply with a five-year-old federal mandate to create a national sex offender registry and critics say their failure could cause them to attract violent sex criminals to the region.
Despite two one-year extensions, only seven states have met the requirements of the Adam Walsh Act. With a final, July 27 deadline looming, some jurisdictions are scrambling to get in compliance. Maryland and Virginia have passed laws in recent years that keep better track of sex offenders through stricter reporting requirements. But lawmakers have been reluctant to require violent juvenile offenders to register for at least 25 years and aren't happy with being stuck with a multimillion-dollar tab, either....
"We've seen evidence that sex offenders move from one jurisdiction to another because they may not be as closely monitored," Linda Baldwin, who runs the U.S. Department of Justice office that determines whether states are compliant with the Walsh Act, told The Washington Examiner. "[The Adam Walsh Act] was designed to eliminate gaps and loopholes among states' sex offender registration regulations," she said. "Gaps and loopholes allow registered sex offenders to fall off the radar."
A major sticking point for many areas, including Maryland and D.C., is the federal requirement that youths 14 and older found guilty of a violent sex offense by the juvenile justice system be put on a sex offender registry for at least 25 years. The youth registry does not have to be public, but must be available to law enforcement agencies. "The existence of a permanent registry for young people may have a chilling effect on reporting [sex offenses]," Daniel Okonkwo, head of D.C. Lawyers for Youth, recently told the D.C. Council. "Families may be more reluctant to report abuses to avoid further court involvement."
The cost of implementing the Walsh Act has also slowed states' progress. Jurisdictions deemed by Baldwin's office to not have met the mandate by the deadline could lose 10 percent of a Justice Department grant that many states use to purchase equipment and provide training. The dollars at stake -- about $200,000 for D.C., and $500,000 for Maryland and Virginia each year -- often don't outweigh the costs of meeting the mandate. In Virginia, it could cost $10 million to fully implement the federal law. D.C. has not yet priced legislation introduced last month and cost isn't an issue in Maryland, which is nearly compliant.
At-large D.C. Councilman Phil Mendelson, who is "working on the bill," said "the cost of implementation is likely to exceed the dollars at risk, and the dollars at risk may evaporate with budget cuts in Congress." He added, "the idea that we might become a haven for sex offenders if we don't meet the requirements sounds like rhetoric to me."
This companion article, headlined "Trouble from the start with Walsh Act," starts this way:
A federal mandate to create a national sex offender registry passed by Congress left many states wondering whether it was necessary when it as passed in 2006.
The Adam Walsh Act was "an unfunded mandate and states were not part of the discussion when the bill was considered," said Susan Frederick, federal affairs counsel for the National Conference of State Legislatures. "We were told here's what we've done for you and we're not happy about that."
The result is that only seven states have met the law's requirements, some have given up entirely and others are scrambling to meet a July 27 deadline.
Georgia Supreme Court upholds again placing high burden on capital defendants to prove retardation
As detailed in this new AP article, "Georgia's top court has upheld the strict standard that capital defendants must meet to prove they are mentally disabled to avoid an execution." Here is more:
The Georgia Supreme Court's 6-1 ruling on Monday rejected a challenge brought by Alphonso Stripling, who claimed the state cannot seek the death penalty against him for the 1988 killings of two because he is mentally disabled. The court also concluded that the burden of proof is on Stripling, not the state.
Georgia became the first state in the nation to ban executing mentally disabled inmates. But it also is the only state that requires defendants to prove they are mentally disabled beyond a reasonable doubt....
A federal appeals court is considering a similar challenge.
The full opinion from the Georgia Supreme Court is available here, and this paragraph from the solo dissent provide a brief national overview on this issue:
Of the thirty states that impose the death penalty, twenty-two have adopted a preponderance of the evidence standard for proving mental retardation. Although Georgia led the nation in prohibiting the execution of mentally retarded offenders, it is now the only state that imposes a reasonable-doubt standard to prove mental retardation.
June 12, 2011
Might concerns about porn prosecutions and gun rights be impacting SCOTUS decision-making int he violent video game case?
As many SCOTUS watchers know, the Supreme Court has been taking a long time to hand down its ruling in Brown v. Entertainment Merchants Association, the California case concerning whether restrictions on the sale of violent video games to minors violates the First Amendment (the SCOTUSblog case page here provides lots of legal background). Because I am not a free speech maven, I have not been focused too much on the case. But, excerpts from this new effective UPI piece on EMA prompted for me the question in the title of this post:
California should find out any day now whether its law forbidding the sale of sometimes grotesquely violent video games to minors has survived a constitutional challenge in the U.S. Supreme Court. The central issues in the case, even on the surface, are pretty meaty.
- Whether the First Amendment allows restrictions on "offensive" content in violent video games sold to minors, and
- Whether the state law banning the sale of games with offensive images to children falls if it fails to pass "strict scrutiny," the toughest standard of review by the courts.
Beyond those core questions, however, the case raises issues about the type of society we are building. There would be no question about the constitutionality of the law if it restricted the sale of sexual images to minors, as opposed to violent ones. California asks, why the difference?
Do violent, sometimes outlandishly violent games viewed by children contribute to the growing coarseness and danger in American society? Some medical specialists believe that it does. But when government imposes censorship, no matter how valid the reasons, does it clamp a "chill" on types of expression far beyond the targeted speech? Media groups supporting the challenge say that it does....
California told the Supreme Court in a brief that in enacting the law the "Legislature sought to reinforce the right of parents to restrict children's ability to purchase offensively violent video games. In doing so, the Legislature considered numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between playing violent video games and an increase in aggressive thoughts and behavior, anti-social behavior and desensitization to violence in both minors and adults."...
A federal judge, citing the First Amendment and using "strict scrutiny," declared the state law unconstitutional and issued a permanent injunction barring its implementation. Violence cannot be considered unprotected speech under the First Amendment without the element of sex, the judge said, even when the restriction is applied to minors....
Rather than strict scrutiny, California wants the Supreme Court to review the law under the standard set by 1968's Ginsberg vs. New York: "Under the Ginsberg standard, the act must be upheld so long as it was not irrational for the California Legislature to determine that exposure to the material regulated by the statute is harmful to minors." In addition, "The First Amendment does not require states to demonstrate proof of a direct causal link between violent video game play and harm to minors," California said in its brief. Instead, even under strict scrutiny, "a proper application of this level of review requires that the state Legislature draw reasonable inferences based on substantial evidence."
The linkages (and/or jurisprudential lines of demarcation) within the First Amendment regarding violence and sexuality are clearly raised by this case: what SCOTUS says about the regulation of minors and images of violence surely could impact regulations concerning minors and images of sexuality. Throw in the impact of modern technology and new forms of communication (e.g., sexting involving minors and/or Weiners), and it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact porn regulations and prosecutions.
The issue of gun rights and nascent Second Amendment jurisprudence may not seem directly in play in Brown v. EMA, but the arguments being made by California to support regulations on violent video games appear quite parallel to arguments often made to justify gun restrictions of all sorts. Supporters of gun control often point to "numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between [access to firearms] and an increase in aggressive thoughts and behavior [and violent and] anti-social behavior." If this kind of "substanital evidence" of potential harms to kids enables a speech regulation to survive strict scrutiny under the First Amendment in EMA, advocates of gun control will surely be quick cite similar "substantial evidence" in support gun myriad regulations despite Second Amendment limits. In the wake of Heller and McDonald, it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact gun rights and regulations.
Lots to good reasoning on crime and punishment at Reason
A few helpful readers have pointed me to a few different notable new pieces in the July issue of Reason magazine. That issue is a special one with the over title "Criminal Injustice: Inside America's National Disgrace." Reasoneditor-in-chief Matt Welch provides an effective introduction to this issue, titled "The Ends Didn’t Justify the Means: Our complicity in the devastating war on crime," which starts this way:
At the first presidential debate of the 2012 campaign, former New Mexico Gov. Gary Johnson implored Republican voters to conduct a “cost-benefit analysis” of the criminal justice system. “Half of what we spend on law enforcement, the courts, and the prisons is drug related, and to what end?” Johnson asked a South Carolina audience in May. “We’re arresting 1.8 million a year in this country; we now have 2.3 million people behind bars in this country. We have the highest incarceration rate of any country in the world. I would ask people to look at this issue; see if they don’t come to the same conclusion that I did, and that is that 90 percent of the drug problem is prohibition-related.”
The ends of justice, Johnson argues, have not justified the means of prosecution. This issue of reason is a detailed brief in support of that thesis. A system designed to protect the innocent has instead become a menagerie to imprison them. A legal code designed to proscribe specific behavior has instead become a vast, vague, and unpredictable invitation to selective enforcement. Public servants who swear on the Constitution to uphold the highest principles of justice go out of their way to stop prisoners from using DNA evidence to show they were wrongly convicted. Even before you start debating the means of the four-decade crackdown on crime and drugs, it’s important to acknowledge that the ends are riddled with serious problems.
And here are the three major article that follow this introduction in the magazine:
- "Prison Math: What are the costs and benefits of leading the world in locking up human beings?"
- "Locked Up, Locked Out: The social costs of incarceration"
- "Wrongful Convictions: How many innocent Americans are behind bars?"
The "social costs" article, authored by Harvard sociology Professor Bruce Western, includes these important insight:
Do prisons make us safer? By taking would-be offenders off the streets, prisons clearly have reduced crime in the short run. In the long run, though, imprisonment erodes the bonds of work, family, and community that help preserve public safety.
Three effects are fundamental. First, former prisoners do worse economically than if they had never been incarcerated. We can see some evidence in a study I conducted in 2004 with the Princeton sociologist Devah Pager. We ran an audit experiment that sent trained testers to apply for more than 1,000 entry-level jobs throughout New York City. The fake job applicants were dressed similarly, gave similar answers, and provided résumés with identical education and work experience. At each job interview, however, one randomly chosen tester would tick the application box indicating a criminal record and submit a résumé that mentioned a prison and provided a parole officer as a reference.
White testers who were assigned a criminal record received call-backs or job offers from employers only half as often as testers with clean records. For African Americans, a criminal record reduced employment opportunities by two-thirds. Labor force data from the National Longitudinal Survey of Youth paint a similar picture of incarceration’s negative effects: Wages fall by about 15 percent after prison, yearly earnings are reduced by about 40 percent, and the pay of former prisoners (unlike compensation for the rest of the labor force) remains stagnant as they get older.
The second important effect of imprisonment falls not on ex-inmates but on their families. About half of all prison and jail inmates are parents with children under 18. By 2008 about 2.6 million children had a parent in prison or jail. By age 17, one in four African-American youth has a father who has been sent to prison.
Because of their poor job prospects, formerly incarcerated fathers are less able to contribute financially to their families. Because incarceration strains marital relations, those fathers are also less involved as parents. Compared to otherwise similar kids whose parents haven’t been behind bars, the children of incarcerated parents are more likely to be depressed, behave aggressively, and drop out of high school. These problems appear to be more common for boys than girls. Incarceration, it seems, is weakening the bonds between fathers and sons.
The third important effect of incarceration is cultural, shaping how the institutions of law and order are viewed in high-crime/high-incarceration neighborhoods. The prison population is drawn overwhelmingly from low-income inner-city areas whose residents come to associate police and the courts with the surrounding social problems of violence and poverty. Police are viewed as unhelpful, and often unaccountable, contributing to what the Harvard sociologist Robert Sampson calls “legal cynicism” in troubled, crime-ridden neighborhoods.
"Medicine and the Epidemic of Incarceration in the United States"
The title of this post is the title of this short "perspective" piece appearing in The New England Journal of Medicine. Though much of the ground covered by the piece will be familiar to regular readers of this blog, I thought these passages added some new data to the usual discussions of mass incarceration:
The largest facilities housing psychiatric patients in the United States are not hospitals but jails. More than half of inmates have symptoms of a psychiatric disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSMIV), and major depression and psychotic disorders are four to eight times as prevalent among inmates as in the general population — yet only 22% of state prisoners and 7% of jail inmates receive mental health treatment while incarcerated....
Substance use and dependence are highly prevalent in the incarcerated population. More than 50% of inmates meet the DSMIV criteria for drug dependence or abuse, and 20% of state prisoners have a history of injection drug use. Up to a third of all heroin users — approximately 200,000 — pass through the criminal justice system annually. With growing numbers of drug users in correctional facilities, the prevalence of infectious diseases has increased correspondingly. As many as a quarter of all Americans infected with HIV and one in three with hepatitis C pass through a correctional facility each year. Chronic noninfectious diseases are also disproportionately prevalent in correctional facilities.