Sentencing Law and Policy

Should domestic violence offenders have to register like sex offenders?

The question in this post is prompted by this interesting story out of New York.  The piece is headlined, "NY Lawmaker Pushes For Domestic Violence Registry: Domestic Abuse Offenders Would Have To Sign Up Similar To What's Required Of Sex Offenders."  Here are some details:

A Long Island woman is recounting the terror she and her daughter endured at the hands of her ex-husband. This as efforts are underway to create an online registry of domestic violence offenders, just like sex offenders. The Suffolk County woman and her daughter, who have asked to remain unidentified, are in hiding from her ex-husband, who police say was previously arrested for domestic violence and weapons possession.

"My ex-husband he would go into rage. He put a knife to my throat, he spit on me, he choked me, many times in front of my daughter; he would lock us in the closet, also the psychological abuse," she told CBS 2. "Currently my ex-husband is online, on every single dating site. Women are looking at his profile. He indicates he is a physician. He indicates how much money he makes."

As easily as one finds an online date, there could be a way to find out if that prospective mate has a violent history. Suffolk County Legislator DuWayne Gregory (D-Amityville) wants to create an online registry of the county's domestic violence offenders. "They'll be outed, and the community and the world will know this is the thing they do behind closed doors," said Gregory.

Gregory compares his Suffolk County legislation to the sex offender registry. It would include an offender's name, address, and photograph, creating a shame-factor for abusers. "It's going to save lives and keep people out of danger. That"s why we are pushing it 100 percent," he said.

CBS 2 spoke with several coalitions against domestic violence who called the bill "well-intentioned," but concerned it could backfire. "The primary concern is about the victim's confidentiality," said Ruth Reynolds of the Suffolk Co. Victims Information Bureau and Family Violence Center....

Still, the victim we spoke with, for one, urges lawmakers to adopt the measure. "This is why I speak out, because there should be a registry to indicate their offenses," she said.

The full Legislature will not act on the bill before November because the sponsor, Legislator Gregory, wants to add a provision that would leave it up to a judge to decide how long each domestic violence predator would be named on the registry.

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements.  (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.) 

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct.  (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.)  I wonder if any public policy or law reform groups are working on model criminal registry legislation.  A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

A thoughtful defense of prosecutorial declination in the Andrew Sullivan pot case

Regular readers may recall the recent kerfuffle over the decision by federal prosecutors to dismiss minor marijuana possession charges against noted blogger Andrew Sullivan (blogged here).  Because I was not quite sure what to make of the case, I asked former federal prosecutor Anthony Barkow, who is now the Executive Director of the Center on the Administration of Criminal Lawat NYU School of Law, if he had some thoughts on the matter.  To may great pleasure, Barkow and one of his NYU students penned a terrific commentary, which can be downloaded in full below.  Here is how the piece starts and ends: 

“Equal justice under the law” is a phrase that graces the walls of courtrooms across America. Unfortunately, it has become all too common in recent decades for lawyers to place too much attention on superficial equality without paying similar heed to the need to do justice.

A recent example involves provocative public intellectual and blogger Andrew Sullivan....

The Magistrate presiding over Sullivan’s case decried what he viewed as differential treatment given to Sullivan compared to others charged with marijuana possession.  He pointed out that the Sullivan declination did not reflect a discretionary decision by the United States Attorney’s never to prosecute the possession of small amounts of marijuana, noting that such persons “are prosecuted routinely.”   The Magistrate rejected the idea that prosecutors should consider collateral consequences when making charging decisions, arguing that the United States Attorney should have charged Sullivan and left to immigration authorities the determination of whether Sullivan would be deported or denied citizenship.  In doing so, the Magistrate ignored the constitutional and practical role prosecutors play as gatekeepers in the criminal justice system, the obligation of prosecutors only to pursue charges that result in proportional punishment, and the fact that prosecutors’ first obligation in all exercises of discretion is to see that justice is done.

Download NYU Sullivan commentary

The controversial intersection of criminal justice practice and immigration policy

This New York Times article, which is headlined "Debate Intensifies Over Federal Deportation Policy," spotlights the array of controversial and interesting issues that arise when criminal justice practice and immigration policy intersect. Here is how the article starts:

The Obama administration is vastly expanding a federal effort begun under President George W. Bush to identify and deport illegal immigrants held in local jails. But here in the city where the effort got a trial start eight months ago, people on each side of the immigration debate have found fault with it.

Under the effort, known as Secure Communities, local officials check every set of fingerprints taken at jails against those of people who have had a brush with federal immigration authorities; in the past, they could check only for a criminal history in the F.B.I. database. If a person turns out to be an illegal immigrant, the case is turned over to Immigration and Customs Enforcement for possible deportation proceedings in addition to the criminal charges.

The Obama administration considers the trial program successful enough to pledge $195 million over the next year to expand the effort with an eye toward establishing it nationwide by late 2012, when it is projected to cost about $1 billion a year. It is now under way in 70 counties across the country, including those containing the cities of San Diego, Phoenix, Dallas, Miami and Durham, N.C. “Before we had no idea who was deportable,” said Sheriff’s Deputy Gwen Carroll of Harris County, where Houston is located.

But the trial program’s experience here has raised difficult questions about its goals, critics say, and serves as a stern reminder of the political and practical challenges facing the larger rollout.

Federal officials say that while they are pleased with their new ability to identify illegal immigrants, they do not have enough agents to deport all of those identified. Over all, only a third of those identified in the first seven months of the program as foreign nationals — which includes people with visas and temporary residence cards as well as illegal immigrants — have been deported. “We do have a limited amount of resources,” said David J. Venturella, the director of the federal program. “It’s our priority to focus on the more serious offenders.”

Proponents of stricter enforcement of immigration laws complain that by concentrating on people who pass through the jails, the government is letting too many other illegal immigrants off the hook. On the other side, advocacy groups for immigrants complain that the program has created a climate of fear and paranoia among Hispanics, hampering the police.