Sunday, October 26, 2014

More drug war collateral damage: "Law Lets I.R.S. Seize Accounts on Suspicion, No Crime Required"

The title of this post includes my extra bit of spin on the headline of this notable front-page New York Times article, which gets started this way:

For almost 40 years, Carole Hinders has dished out Mexican specialties at her modest cash-only restaurant.  For just as long, she deposited the earnings at a small bank branch a block away — until last year, when two tax agents knocked on her door and informed her that they had seized her checking account, almost $33,000.

The Internal Revenue Service agents did not accuse Ms. Hinders of money laundering or cheating on her taxes — in fact, she has not been charged with any crime. Instead, the money was seized solely because she had deposited less than $10,000 at a time, which they viewed as an attempt to avoid triggering a required government report.  “How can this happen?” Ms. Hinders said in a recent interview. “Who takes your money before they prove that you’ve done anything wrong with it?”  

The federal government does.  Using a law designed to catch drug traffickers, racketeers and terrorists by tracking their cash, the government has gone after run-of-the-mill business owners and wage earners without so much as an allegation that they have committed serious crimes.  The government can take the money without ever filing a criminal complaint, and the owners are left to prove they are innocent. Many give up.

“They’re going after people who are really not criminals,” said David Smith, a former federal prosecutor who is now a forfeiture expert and lawyer in Virginia.  “They’re middle-class citizens who have never had any trouble with the law.”

On Thursday, in response to questions from The New York Times, the I.R.S. announced that it would curtail the practice, focusing instead on cases where the money is believed to have been acquired illegally or seizure is deemed justified by “exceptional circumstances.”

Richard Weber, the chief of Criminal Investigation at the I.R.S., said in a written statement,  “This policy update will ensure that C.I. continues to focus our limited investigative resources on identifying and investigating violations within our jurisdiction that closely align with C.I.’s mission and key priorities.”  He added that making deposits under $10,000 to evade reporting requirements, called structuring, is still a crime whether the money is from legal or illegal sources.  The new policy will not apply to past seizures.

October 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (21) | TrackBack

Friday, October 24, 2014

ACLU flies suit against Florida county's latest sex offender residency restrictions

As reported in this local article, headlined "ACLU sues over rule on where sex offenders can live in Miami-Dade," a notable new lawsuit has been brought against a community that has a long sad history of difficulties with sex offender residency realities.  Here are the details:

For five years, Miami-Dade County’s sex offender law has sparked national headlines, as homeless parolees have been forced to move from street corners to parking lots because of a law that prohibits them from squatting near public spaces where children gather. Now, the dozens of homeless sex offenders — shuffled from under the Julia Tuttle Causeway to a Shorecrest street corner and finally to a parking lot near train tracks and warehouses just outside Hialeah — have a voice arguing on their behalf.

On Thursday, the national chapter of the American Civil Liberties Union filed a lawsuit in federal court reasoning that Miami-Dade County and the state Department of Corrections have violated the offenders’ basic rights to personal safety, and to maintain a home. The suit doesn’t name the ACLU’s clients, referring to them as John Doe 1, 2 and 3.

“It undermines public safety. It’s harder to find a job and maintain treatment. Housing stability is just as critical to these folks as to anyone else,” said Brandon Buskey, staff attorney for the Criminal Law Reform Project at the ACLU in New York City.

But the man behind the controversial county ordinance said no one has the right to demand where they live. Ron Book, the powerhouse state lobbyist and chair of the Miami-Dade Homeless Trust, said the courts have upheld the residency restrictions, and the ACLU is simply regurgitating an issue that’s been dealt with. “The U.S. Supreme Court has said they’re entitled to live places that don’t endanger the health, safety and welfare of law-abiding citizens of the U.S. But they’re entitled to take their $350 to the courthouse,” Book said of the ACLU. “I don’t support those with sexual deviant behavior living in close proximity to where kids are.”

The 22-page lawsuit, filed in the U.S. Court’s Southern District, calls the county ordinance vague, says it doesn’t allow sex offenders their due process, and adds that it leaves them in a vulnerable position and unsafe. “These individuals, who frequently subsist on meager incomes after being released from prison, are unable to locate stable, affordable housing in Miami-Dade County. This transience is primarily because the ordinance arbitrarily renders off-limits broad swaths of housing,” according to the complaint....

At the center of the battle between the ACLU and Miami-Dade is a law approved in 2010 called the Lauren Book Safety Ordinance. Lauren Book, Ron Book’s daughter, was sexually molested by a trusted nanny for six years, starting when she was 11. Lauren Book-Lim, now married and 29, is an advocate for the sexually abused. The 2010 ordinance was created after nearly 100 offenders were sent scrambling from squalid living conditions under the Julia Tuttle Causeway. The new law doesn’t allow offenders on parole within 2,500 feet of schools, parks, bus stops, or any other place children might congregate. Before the law, Miami-Dade followed a less restrictive state-created 1,000-foot law.

But the county ordinance had unintended consequences: It left sex offenders with few living options and almost immediately became a hot-button issue around the nation, even the world. There’s even a Wikipedia page about it.

Miami-Dade’s sexual offender homelessness issue first came to light in late 2009, when images of 92 homeless sex offenders living in plywood and cardboard sleeping quarters tucked under the Julia Tuttle Causeway at the height of the recession were splashed across TV. At the time, the county was still following the 1,000-foot state law.

Though the homeless offenders had been living there for about three years, embarrassed officials put up “No Trespassing” signs under one of the main causeways linking Miami and Miami Beach, and tore down the rickety structures. A promise to spend $1 million to find housing for the offenders didn’t solve the problem. The new, tougher, 2,500-foot ordinance was created mainly because of the Julia Tuttle fiasco....

Howard Simon, executive director of the Florida chapter of the ACLU said no entity should be allowed to strip anyone of their basic rights and force them into “dangerous and squalid conditions.”

“This is the second chapter of the same sad story,” he said. “The county provoked international outrage when it forced people to live under the Julia Tuttle bridge. Now it’s forcing people to live alongside railroad tracks.”

More details about the lawsuit and links to the filings are available at this ACLU page.

October 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Saturday, October 18, 2014

Reviewing concerns about the efficacy and fairness of sex offender registried

AlJazeera America has this lengthy new piece about sex offender registries headlined "Sex-offender laws are ineffective and unfair, critics say: Experts say public registries don't reduce assault — and sex offenders are increasingly challenging the rules in court." Here are excerpts:

Few groups are as widely despised as sex offenders.  Activities prosecuted as sex offenses vary by state, but can include public urination, consensual sex between teenagers, streaking, prostitution, downloading child pornography and rape.  In some states, law-enforcement officials distribute flyers to notify neighbors of registrants’ convictions. Some registrants are prohibited from using the Internet.  In 2010, the U.S. Supreme Court ruled that indefinite detention at psychiatric hospitals — or “civil commitment” — of sex offenders is constitutional.

The first law requiring sex offenders to register publicly and for life was passed in California in 1947 and targeted gay men, according to Andrew Extein, executive director of the Center for Sexual Justice.  But many of today’s laws have their origins in the late 1970s, when feminists and social conservatives worked together to publicize high-profile “stranger danger” attacks on children, says Roger Lancaster, anthropology professor at George Mason University and author of “Sex Panic and the Punitive State.”

Beginning in the mid-1990s, several laws went into effect that changed how sex-offense cases were prosecuted.  In 1994, states were required to create databases of sex offenders.  Two years later, Megan’s Law, named for a 7-year-old in New Jersey who was brutally raped and murdered by a neighbor with two previous sex convictions, allowed states to make those registries public.  States passed their own versions of the law; in some cases, they required that neighbors be notified of paroled offenders’ previous convictions.  Later laws moved those sex-offender databases online, created a national registry, required lifetime registration of people 14 years old and up and imposed harsh mandatory minimum sentences for crimes involving children.

But almost 20 years after the passage of Megan’s Law, criminologists and judges, along with a burgeoning movement of sex-offender registrants and their families, are challenging not only the constitutionality of the laws but their effectiveness in reducing sexual assault. In January, a California court ruled in favor of a paroled sex offender who had argued that city and county “child-safety zone” ordinances prohibiting people in the registry from using parks, beaches and similar recreation areas were an unconstitutional form of banishment.  In April, the state Supreme Court upheld the ruling by declining to review it.

Thirty-three states have opted out of at least some aspects of the law that brings registries online.  Many, like New York, take issue with the 2006 federal law that requires states to list every person convicted of a sex offense on a public registry.  Some, like Maryland, are considering removing the names of people who committed less serious offenses.

Critics say the registries’ emphasis on public tracking of sex offenders after their release from prison does not make people safer.  Ninety-five percent of those arrested for sexual offenses have no prior convictions.  Recidivism rates are low: A study conducted by the Canadian government looked at data from 10 studies on sex-offender recidivism in Canada, the United Kingdom, Wales and the United States and found that “after 15 years, 73% of sexual offenders had not been charged with, or convicted of, another sexual offence.”

In most sex-abuse cases — 93 percent, according to a Department of Justice report — the child knows the perpetrator.  Nearly half of abusers are family or extended-family members.  A 2008 American Psychological Association report concurs: “Despite the public perception that sex offenders are strangers stalking playgrounds and other areas where children congregate, the majority of offenses occur in the victim’s home or the home of a friend, neighbor, or relative.”

A 2008 Justice Department study examined recidivism among sex offenders before and after the law requiring community notification.  “Megan’s Law showed no demonstrable effect in reducing sexual re-offenses,” it concluded.

Says a 2009 report by Princeton University and the Brookings Institution: “None of these high-profile strategies has been built on empirical evaluation, and virtually all have gone to national scale without research or even much pilot testing.”

What registration laws do is make it nearly impossible for those listed to find or keep jobs and housing, advocates say.  Residency restrictions in California have created a housing crisis for convicted sex offenders. According to the California Sex Offender Management Board, the number of homeless registrants has increased 217 percent, to 6,500, over the past eight years....

Supporters of registering and limiting the movement of paroled sex offenders, including Tony Rackauckas, one of the first district attorneys in California to support countywide child-safety zones, however, are not persuaded by these arguments and say the registries do prevent attacks. “We’re not going to know how many kids were not molested or groomed for later sexual contact as a result of this law,” he told The New York Times.

October 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Sunday, October 12, 2014

Documenting a notable California legal crusade against sex offender restrictions

This lengthy local article, headlined "Pair seeks repeal of sex-offender laws in California," provides a detailed review of a notable effort to take down via court challenges local sex offender restrictions. The piece merits a full read, and here are a few highlights:

A crusading civil rights attorney and a registered sex offender have partnered in a legal battle that has prompted dozens of California cities to repeal or revise what the pair believe are unconstitutional ordinances restricting the activities of sex offenders.

Since March, Santa Maria attorney Janice Bellucci and Frank Lindsay, a 62-year-old water-treatment specialist from Grover Beach and registered sex offender for 35 years, have filed 18 lawsuits in federal court challenging ordinances in cities from Stockton down to National City.

To date, Bellucci has settled 15 of the lawsuits, while 38 other cities have avoided litigation by agreeing to repeal their ordinances. Six other cities have voluntarily suspended enforcement of their ordinances, while ordinances in another 18 cities are still under review.

“The way I look at it is that I’m protecting the Constitution of the United States as well as the state of California,” said Bellucci, president of California Reform Sex Offender Laws, a nonprofit she launched three years ago as an affiliate to the national Reform Sex Offender Laws organization.

While Bellucci believes she’s fighting for the rights of oppressed sex offenders, others say she’s endangering the state’s youth. “As an elected official and as a mother, I’m concerned about the health and safety of our young people who don’t have a voice,” said Carson Councilwoman Lulu Davis-Holmes. Carson is one city sued by Bellucci that plans to fight the lawsuit. “Our kids did not make the choice to be molested,” Davis-Holmes said. “I personally think we need to do more to protect those who cannot protect themselves,”

Bellucci’s flurry of lawsuits was prompted by a 4th District Court of Appeal’s decision in January that found sex offender ordinances in Orange County and the city of Irvine cannot impose restrictions more stringent than state law, which only restricts sex offenders who are on parole and whose victims were under the age of 14 from visiting public parks without the express permission of their parole agent.

In addition to the suits she filed with Lindsay, Bellucci has filed two lawsuits on her own, challenging ordinances in Canyon Lake and Commerce. Those complaints do not name Lindsay as a plaintiff because ordinances in those cities do not apply to sex offenders whose convictions are as old as Lindsay’s.

In April, the state Supreme Court declined a petition by the Orange County District Attorney’s Office to review the appellate court ruling, leaving it intact. The appellate court ruling, coupled with the spate of litigation initiated by Bellucci, could have a major impact on the lives of California’s 107,913 registered sex offenders, roughly 14 percent of the nation’s 774,600, as cities and counties are forced to either repeal their ordinances or make them uniform with state law.

This companion article, headlined "Sex-crimes convict says registration has ruined his career, endangered his life?," provides a profile of the sex-offender who is the plaintiff in much of the discussed California sex offender litigation.

October 12, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, September 29, 2014

District Court embraces as-applied Second Amendment limit on federal felon-in-possession prohibtion

As long-time readers know, ever since the Supreme Court's Second Amendment Heller ruling, I have long thought federal criminal law's threat of severe sentences on any and all felons in possession of any and all firearms is constitutionally questionable. Now, thanks to this post by Eugene at The Volokh Conspiracy, I see that one federal district court has finally held that there are as-applied Second Amendment problems with the federal felon-in-possession criminal statute.

The notable Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014) (available here).  Interestingly (and perhaps not surprisingly),  Binderup is a civil rights suit brought by a relatively sympathetic individual with a minor criminal past, not a case involving a federal criminal defendant claiming the Second Amendment precludes his prosecution.  And here are excerpts from the start and end of the lengthy opinion:

As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011)....

Because plaintiff’s statutory claim fails, I reach his alternative constitutional claim asserted in Count Two. For the reasons expressed above, I conclude that plaintiff has demonstrated that, despite his prior criminal conviction which brings him within scope of § 922(g)(1)’s firearm prohibition, he poses no greater risk of future violent conduct than the average law-abiding citizen. 

Therefore, application of § 922(g)(1) to him violates the Second Amendment to the United States Constitution under the framework set for the by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). Accordingly, plaintiff is, and defendants are not, entitled to summary judgment on plaintiff’s as-applied constitutional challenge asserted in Count Two of the Complaint.

It now will be real interesting to see if the feds will appeal this ruling to the Third Circuit or instead just leave it be.

September 29, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, September 23, 2014

Split NJ Supreme Court holds that state's sex offender GPS tracking is punishment subject to ex post facto limits

As reported in this local article, headlined "Some sex offenders can't be forced to wear GPS monitors, N.J. Supreme Court rules," the top state court in the Garden State issued a significant constitutional ruling concerning GPS tracking of sex offenders.  Here are the basics:

New Jersey cannot force sex offenders to wear GPS tracking devises if they were convicted before the monitoring program was signed into law seven years ago, the state Supreme Court ruled in a split decision today.

The court voted 4-3 to uphold an appellate panel's decision that said it was unconstitutional for the state Parole Board to require George C. Riley to wear the ankle monitor when he was released from prison in 2009 after serving 23 years for attempted sexual assault of a minor.

Justice Barry Albin wrote today that the Riley, 81 of Eatontown, should not be subject to the 2007 law because it constitutes an additional punishment that was not included in the sentence he already served.... A spokesman for the Parole Board did not respond when asked how many released sex offenders could be affected by the ruling.

Riley was convicted of trying to have sex with an 11-year-old girl in 1986. At the time, New Jersey law did not allow a sentence that included parole for life. But while Riley was in prison, the state enacted Megan's Law in 1994, requiring sex offenders to not only register with local authorities upon release but be placed under parole supervision for life. Then, in 2007, Gov. Jon Corzine signed the Sex Offender Monitoring Act, requiring the state's most dangerous sex offenders to wear GPS devises.

When Riley was released two years later, court papers say, he was not subject to any parole supervision. But he was designated a Tier III offender under Megan's Law — which applies to those who are considered a high risk for committing another offense. Under that tier, Riley was subject to "Internet registration and the most comprehensive degree of community notification," court papers say.

Six months later, though, Riley was told he would need to wear the pager-sized monitor on his ankle 24 hours a day and 7 days a week and carry a cell phone-sized tracking unit when he left his home, the papers say The devise must also be plugged into an electrical outlet to be charged one to two hours each day, the papers say. During that time, Riley could not move further than the length of the cord. And he was assigned a parole officer with access to his home. Riley would be subject to prosecution for a third-degree crime if he didn't comply....

The Supreme Court ... agreed with the lower court that the "retroactive application" of Riley to the GPS program violates the ex post facto clauses in the U.S. and state Constitutions, which safeguard against imposing "additional punishment to an already completed crime." The court also rejected the state's argument that the GPS monitor is not punitive but "only civil and regulatory."

"Parole is a form of punishment under the Constitution," Albin wrote for the high court. "SOMA is essentially parole supervision for life by another name." Albin added that "the disabilities and restraints placed on Riley through twenty -four-hour GPS monitoring enabled by a tracking device fastened to his ankle could hardly be called 'minor and indirect.'" The court also rejected the state's assertion that the Parole Board made its decision as a result of the Megan's Law designation, saying that designation "was based primarily on Riley’s previous sexual-offense convictions."

The full ruling in Riley v. New Jersey State Parole Board, No. A-94-11 (NJ Sept. 22, 2014) is available at this link.

September 23, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Thursday, September 18, 2014

Members of Congress call for federal judge to resign after his domestic violence conviction

As reported in this local article, headlined "Sen. Jeff Sessions, Sen. Richard Shelby call for Mark Fuller's resignation," there is a growing consensus that a federal district judge ought to not longer be a judge after his conviction for assaulting his wife.  Here are the details:

On Wednesday, Sen. Jeff Sessions and Sen. Richard Shelby called for U.S. District Judge Mark Fuller's immediate resignation following his high-profile arrest for domestic violence in August.  "Judge Fuller's unacceptable personal conduct violates the trust that has been placed in him," Sessions said in a statement.  "He can no longer effectively serve in his position and should step down."

Sessions' sentiments echoed Shelby's earlier comments.  "The American people's trust in our judicial system depends on the character and integrity of those who have the distinct honor of sitting on the bench," Shelby said.  "I believe that Judge Mark Fuller has lost the confidence of his colleagues and the people of the state of Alabama."...

Fuller, who serves Alabama's federal middle district, was arrested Aug. 9 after his wife reported to police that her husband was drunk when he beat her while they were at an Atlanta hotel.  She had accused him of having an extra-marital affair with his law clerk. According to the police report, police noted "visible lacerations" to the woman's mouth and forehead.  Police said the woman reported Fuller had pulled her to the ground by her hair and kicked her.

On Sept. 5, Fuller accepted a plea deal that could expunge the arrest from his record if he completes a counseling program

On Tuesday, U.S. Rep Martha Roby said tolerating domestic abuse is condoning the crime, adding that she is closely monitoring the case. Rep. Terri Sewell also called for Fuller's resignation Tuesday. "No one committing such abusive acts should get a pass," Sewell said. "This is especially true for those charged with upholding and enforcing the law. Judge Fuller has violated the public trust and should resign."

Related prior posts:

September 18, 2014 in Collateral consequences, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, September 09, 2014

Will and should federal judge Mark Fuller get the same professional treatment as Ray Rice?

The provocative question in the title of this post is a slightly different phrasing of the question in the headline of this provocative AL.com commentary by John Archibald.  That headline is "Superstar Ray Rice cut from team; will 'superstar' judge Mark Fuller get to play on?", and the commentary concludes this way:

Before seeing the actual video evidence, the Baltimore Ravens had apologized for Rice. Then team officials saw the replay.  They saw the lightning left.  They saw Janay Rice quivering on the floor.  They saw, and finally reacted as they had to react, with speed and with revulsion.

With that devastating left hand there was nothing left to the imagination. It didn't matter that Rice had racked up 3½ miles of yardage during his career, that he scored 222 points. It did not matter who he was before he threw that punch.  He was somebody else — wearing the Ravens' colors — after it. They cut him from the team today.

It is no different with any abuser.  It is sure no different with "superstar" federal judge Mark Fuller, who was arrested in Atlanta in August for beating up his wife.  We don't have video of that hotel room, but the police account was vivid enough.

The place reeked of booze and was littered with broken glass —and hair.  Kelli Fuller told the cops she accused her husband of having an affair, and he responded by throwing her to the ground, kicking her and beating her in the face.

Fuller copped a plea in Atlanta, agreeing to terms that will send him to counseling and expunge his record.  Like the whole wife-beating thing never happened at all.

Which is as bad as the NFL handing Rice a two-game suspension in the first place.  Which is worse than the NFL handing Rice a two-game suspension in the first place.

He'll return to the bench a judge for life, deciding the fate of his fellow man as if the law did not apply to him, as if he were above it, as if he were ... a superstar.

But he's still just a 56-year-old punk kid. He ought to quit, but punk kids and abusers don't often quit.  That shouldn't be the end of it.

Because if the NFL and the Baltimore Ravens can make a statement about domestic violence, so can the courts and the United States Government.  Fuller shouldn't get the opportunity to quit.  He needs to be impeached.  We should demand it.  He is, after all, wearing our colors.

September 9, 2014 in Collateral consequences, Offense Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, August 23, 2014

Residency restrictions keep NY sex offenders confined after serving their senetence

The problematic consequences of some sex offender residency restrictions is highlighted in this recent New York Times article headlined "Housing Restrictions Keep Sex Offenders in Prison Beyond Release Dates." Here is how the article starts:

Dozens of sex offenders who have satisfied their sentences in New York State are being held in prison beyond their release dates because of a new interpretation of a state law that governs where they can live.

The law, which has been in effect since 2005, restricts many sex offenders from living within 1,000 feet of a school. Those unable to find such accommodations often end up in homeless shelters.

But in February, the Department of Corrections and Community Supervision, which runs the prisons and parole system, said the 1,000-foot restriction also extended from homeless shelters, making most of them off limits because of the proximity of schools.

The new interpretation has had a profound effect in New York City, where only 14 of the 270 shelters under the auspices of the Department of Homeless Services have been deemed eligible to receive sex offenders. But with the 14 shelters often filled to capacity, the state has opted to keep certain categories of sex offenders in custody until appropriate housing is found.

About 70 of the 101 sex offenders being held are New York City residents, prison authorities said. Some have begun filing habeas corpus petitions in court, demanding to be released and claiming the state has no legal authority to hold them.

The onus of finding a suitable residence upon release is on the sex offender; the state authorities will consider any residence proposed, but will reject it if it is too close to a school or violates other post-release supervision conditions.

Before February, those who could not find suitable housing would typically be released to shelters like the men’s intake center at 30th Street and First Avenue in Manhattan, once known as the Bellevue Men’s Shelter. But the corrections department changed its approach this year, after reports by a state senator, Jeffrey D. Klein, detailing how sex offenders were living within 1,000 feet of a school, often in homeless shelters. Prison authorities say they are holding the sex offenders until the shelter system notifies them of additional space in the few shelters far enough away from schools, such as on Wards Island.

August 23, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Friday, August 22, 2014

"The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration"

The title of this post is the title of this intriguing new paper authored by Douglas Evans with the Center for Research and Evaluation at the John Jay College of Criminal Justice.  Here is the paper's summary:

Financial debt associated with legal system involvement is a pressing issue that affects the criminal justice system, offenders, and taxpayers.  Mere contact with the criminal justice system often results in fees and fines that increase with progression through the system.  Criminal justice fines and fees punish offenders and are designed to generate revenue for legal systems that are operating on limited budgets.  However, fines and fees often fail to accomplish this second goal because many offenders are too poor to pay them.

To compound their financial struggles, offenders may be subject to other financial obligations, such as child support payments and restitution requirements.  If they do not pay their financial obligations, they may be subject to late fees and interest requirements, all of which accumulate into massive debt over time.  Even if they want to pay, offenders have limited prospects for meaningful employment and face wage disparities resulting from their criminal history, which makes it even more difficult to pay off their debt.

An inability to pay off financial debt increases the possibility that offenders will commit new offenses and return to the criminal justice system.  Some courts re-incarcerate offenders simply because they are unable to settle their financial obligations.  Imposing financial obligations and monetary penalties on offenders — a group that is overwhelmingly indigent — is not tenable.  States often expend more resources attempting to recoup outstanding debt from offenders than they are able to collect from those who pay.  This report explores the causes and effects of perpetual criminal debt and offers solutions for encouraging ex-offender payment.

August 22, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3) | TrackBack

Sunday, August 17, 2014

Noting a legal mess with sex offender registries that is not ok in OK

This local article, headlined "Confusion Continues Over Sex Offender Registry In Oklahoma," spotlights some of the legal challenges that can arise when a jurisdiction keeps tinkering with its sex offender registration laws. Here are excerpts:

After years of revisions laws concerning Oklahoma sex offenders, there is still confusion over the offender registry. Seven years ago, Oklahoma amended the state's Sex Offender Registration Act that requires the Department of Corrections to assess offenders by assigning them to one of three risk levels.

A sex offender's level determines how long they have to register. "Except, this is the confusing part, unless your case was before 2007, and if it was before 2007, those rules don't apply to you unless aggravated applies to you," said defense attorney David Slane. "The legislature has changed the rules repeatedly, then the Department of Corrections is trying to interpret it to thousands of people, and in the meantime, the average policeman is trying to figure out what am I supposed to do, am I supposed to arrest this individual or not."

Slane said the rules are not as black and white as they used to be and calls it legal chaos. Last month, a convicted sex offender was arrested in Edmond for public intoxication. He had been living by a school and told police the 2007 law prevented him from having to re-register as a sex offender. We tried looking the offender up on the Oklahoma Sex Offender Registry, but he wasn't even listed.

The confusing laws are troubling for parents. "Of course it concerns me, you know, especially, when you have little kids around, I would like to know who is living next door to me," said Ivan Alvarez or Tulsa. Stephanie Rodriguez of Amarillo, said she's used the App "MobilePatrol" to see a list of sex offenders nearest her....

There are currently more than 7,000 offenders on the Oklahoma Sex Offender Registry. The Department of Corrections say it is currently reviewing about 1,000 sex offender cases.

August 17, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Friday, August 15, 2014

More effective Slate coverage of extremes of (and problems with) sex offender registries

As noted in this prior post, this week Slate has published a series of commentaries spotlighting areas in which sex offender registries have become extreme and problematic.  All four pieces in the series are now available, and here are the full titles and links to these pieces:

August 15, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, August 12, 2014

"Sex Offender Laws Have Gone Too Far"

The title of this post is the headline of this notable new Slate commentary authored by Matt Mellema, Chanakya Sethi, and Jane Shim which appears to be the first in a series. Here are excerpts:

[The] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, signed by President Bill Clinton in 1994, ... used federal dollars to push every state to create a [sex offender] registry.  It worked.  Today, all 50 states and Washington, D.C., have them. Since then, Congress has also passed several related pieces of legislation, including two major statutes. Megan’s Law, enacted in 1996, required that the police give the public access to some sex offender registry data, such as an offender’s name, photograph, and address.  In 2006, the Sex Offender Registration and Notification Act toughened the standards for who must register and for how long, and it upped the consequences of registration by requiring, for example, periodic in-person visits to police.

The upshot, experts say, is that the United States has the most draconian sex registration laws in the world.  As a result, the number of registrants across the nation has swelled—doubling and then doubling again to 750,000 — in the two decades since Jacob’s Law passed, according to data collected by the Center for Missing and Exploited Children....

Is the American approach to sex registration working?  Who goes on the registries, for how long, and for what kinds of crimes?  Do the answers suggest that they are helping to keep kids safe — or sweeping in too many people and stoking irrational fears?

In seeking answers to those questions, over the last several months, we were surprised to find that one of the sharpest — and loudest — critics of the ballooning use of registries is [Jacob's mother] Patty Wetterling.  “These registries were a well-intentioned tool to help law enforcement find children more quickly,” she told us.  “But the world has changed since then.”  What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.

The logic behind the past push for registries rested on what seem like common sense assumptions.  Among the most prominent were, first, sex offenders were believed to be at a high risk for reoffending — once a sex offender, always a sex offender.  Second, it was thought that sex offenses against children were commonly committed by strangers. Taken together, the point was that if the police had a list, and the public could access it, children would be safer.

The problem, however, is that a mass of empirical research conducted since the passage of Jacob’s Law has cast increasing doubt on all of those premises.  For starters, “the assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,” said Melissa Hamilton, an expert at the University of Houston Law Center, pointing to multiple studies over the years.  “It’s a myth.”

Remarkably, while polls show the public thinks a majority, if not most, sex offenders will commit multiple sex crimes, most studies, including one by the Department of Justice, place the sexual recidivism rate between 3 and 14 percent in the several years immediately following release, with those numbers falling further over time.  Which number experts prefer within that range depends on how they define recidivism.  If you count arrests as well as convictions, for example, the rate is higher, because not all arrests lead to convictions.  And if you distinguish among sex offenders based on risk factors, such as offender age, degree of sexual deviance, criminal history, and victim preferences — instead of looking at them as a homogenous group — you may find a higher or lower rate.  Rapists and pedophiles who molest boys, for example, are generally found to have the highest recidivism rates.  Nevertheless, the bottom line is clear: Recidivism rates are lower than commonly believed.

And in contradiction of the drive to crack down after a random act of sexual violence committed by a stranger, the data also shows that the vast majority of sex offenses are committed by someone known to the victim, such as a family member....

In a series for Slate, we’ll spotlight three areas in which the growth of registries has been unexpected — and, we suggest, unwise.

August 12, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Wednesday, July 30, 2014

Should civilly committed sex offenders get in trouble for watching Game of Thrones?

Game-of-Thrones-Leadership-2The question in the title of this post is prompted by this intriguing local article from Virginia, which is headlined "Sex offender claims he was unfairly punished for watching HBO." Here are the notable details:

A human rights advocate for a state facility that provides treatment for civilly committed sex offenders in Virginia has filed a complaint on behalf of one of those sex offenders alleging unfair treatment.

The complaint was filed on July 21, 2014 with the Virginia Center for Behavioral Services and alleges residents at the Virginia Center for Behavioral Rehabilitation (VCBR) were unfairly punished for watching HBO. VCBR is a residential treatment facility for civilly committed sexually violent predators, according to the facility’s website.

“On the weekend of June the 27th, HBO was offered as a promotional by the cable provider,” committed sex offender Elijah Howell said. Howell and fellow committed sex offender Robert Baugh told us they watched “We Are the Millers” that weekend with approval from a VCBR staff member. “He said the programming was pre-approved, and there would be no problem with us watching it,” Howell said.

But, the next day, they said roughly 50 of the more than 200 residents at VCBR were punished for watching nudity on HBO and accused of “sexual behavior.”

“It dropped me down from a blue card to a red…there’s a lot of stuff you can’t do when you become a red card,” Baugh said. The residents worry their time at VCBR will be extended for something they said is not a valid punishment.

“When you go to court and you have a sexual behavior observation note… it’s gonna look like this guy doesn’t understand what he’s doing and still getting sexual behavior notes,” Baugh said.

The human rights advocate at VCBR who filed the complaint, Tammy Long, alleges the residents did not engage in sexual behavior. She cites VCBR’s facility instructions, which state sexual behavior involves physical contact. “These convicted sex offenders in this particular facility have all served their criminal time, and then they’ve been civilly committed, not voluntarily, for treatment,” ACLU of Virginia Executive Director Claire Gastanaga said. “So at this point the purpose is supposed to be therapeutic not punitive.”

Gastanaga said if the complaint is accurate, it shows unfair treatment. “It’s about some people doing it because they can…it’s almost bullying,” Gastanaga said.

A spokesperson for the state agency that oversees VCBR said he cannot comment on specific investigations, but human rights complaints are investigated by the Department of Behavioral Health and Developmental Services Office of Human Rights.

July 30, 2014 in Collateral consequences, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Monday, July 07, 2014

"Do Residency Bans Drive Sex Offenders Underground?"

The very important question in the title of this post is the headline of this discussion (with lots of links) by Steven Yoder at The Crime Report. Here is an excerpt:

California hasn’t been alone in its tough approach to ensuring that formerly incarcerated sex offenders pose no danger after they are released. As part of a wave of new sex offender laws starting in the mid-1990s, about 30 states and thousands of cities and towns passed such residency restrictions — prompting in turn a pushback from civil liberties advocates, state legislators and registrants themselves who argued the restrictions were not only unduly harsh but counterproductive.

But a court decision in Colorado last year could mark a shift in momentum. In the Colorado case, Stephen Ryals, a high school soccer coach convicted in 2001 for a consensual sexual relationship with a 17-year-old student, was sentenced to seven years’ probation and put on the state sex offender registry.   Eleven years later, in 2012, he and his wife bought a house in the city of Englewood. But the police department told him he couldn’t live there because of a city ordinance prohibiting sex offenders from living within 2,000 feet of schools, parks and playgrounds — a law that effectively made 99 percent of its homes and rentals off limits to offenders. Englewood police also warned offenders that even in the open one percent, if they contacted a homeowner whose property wasn’t for rent or for sale, they could be charged with trespassing.

Ryals sued, and last August a federal court concluded that the city’s ban went too far. The judge ruled that it conflicted with the state’s existing system for managing and reintegrating sex offenders and could encourage other towns and cities to do the same, effectively barring offenders from the entire state. Englewood has appealed, but two of the state’s five other cities that have residence bans have softened their restrictions since the decision....

In California, scores of cities are rolling back their restrictions after an Orange County court ruled last April in favor of registrant Hugo Godinez, who challenged the county over its ordinance barring sex offenders from entering parks.  Godinez, convicted for a misdemeanor sex offense in 2010, was arrested the following year for what he said was mandatory attendance at a company picnic in a county park.  In that case too, a state appeals court decided that the county’s ordinance usurped the state’s authority.  The appeals court ruling was upheld by the state’s highest court.

Since the Godinez decision, 28 California cities that have similar “presence” restrictions, which ban offenders from entering places like libraries and parks, have repealed those rules.  Another 24 say they are revising their ordinances, according to Janice Bellucci, a California attorney.

Since the April decision, Bellucci, who represents the advocacy group California Reform Sex Offender Laws, has sent letters demanding repeal to cities with presence restrictions. She also has sued a dozen other cities that haven’t changed their rules since the decision.

And this year, California’s Supreme Court could make an even bigger ruling — whether to toss the state’s 2,000-foot law itself.  A Los Angeles County Superior Court judge found it unconstitutional in 2010, but the city appealed.  The judge cited an increase in homelessness among registrants as a key reason.  Statewide, the number of homeless registrants has doubled since the law passed in 2006, according to the 2011 Sex Offender Management Board report.

At least two other states — Rhode Island and New York — have been sued since 2012 over their own residency laws.

One finding in the Ryals’ case in Colorado case could resonate in other states. The judge found compelling a 2009 white paper by Colorado’s Sex Offender Management Board concluding that residency bans don’t lower recidivism and could actually increase the risk to the public. According to the paper, that’s because they drive offenders underground or toward homelessness, making them harder for police and probation officers to track....

Those 2009 findings led the Colorado board to go further in a report this January, which recommended that state lawmakers consider legislation prohibiting cities and towns from enacting their own offender residency rules.

Two other states have moved in that direction. The Kansas legislature banned local residency restrictions in 2010.  And in New Hampshire, the state House of Representatives has twice approved a bill that would bar local ordinances, though it’s died both times in the state Senate.  Bellucci argues that there’s more to come in other states.  The “pendulum of punishment,” she claims, is starting to swing the other way.

“For a long time, ever-harsher sex offender laws were being passed and there was no one opposing them,” she told The Crime Report. “After more than a few lawsuits, elected officials are realizing that there’s a downside to this.”

July 7, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (24) | TrackBack

Tuesday, June 24, 2014

Others starting to appreciate "Rand Paul, Criminal Justice Hero"

I am very pleased to see this new Slate commentary by Emily Bazelon headlined "Rand Paul, Criminal Justice Hero: The senator from Kentucky wants to give ex-felons the vote even though they won’t vote Republican." The piece not only highlights the credit Senator Paul should be given for his principled approach to criminal justice reform, it also demonstrates why right now he is arguably the most important active criminal justice reformer in the nation.  Here are excerpts:

When libertarian Republicans go on about the “tyranny” of the federal government, as Kentucky Sen. Rand Paul is prone to do, I tune out. But not today. Paul has been talking for a while about how his conception of tyranny extends to long, draconian prison sentences for mostly poor and black offenders. Now he is introducing a bill that would restore voting rights to nonviolent ex-felons in federal elections. This bill is not about to become law any time soon. But give Paul credit for standing on principle even though he and his party would hardly benefit.

If Congress really re-enfranchised ex-cons across the land, it would help Democrats. It would probably be enough to swing a close Senate race in some states—or to push Florida into the D column in a presidential election. In 2010, according to this policy brief by the Sentencing Project, 5.85 million people across the country couldn’t vote because they were either in prison or had a felony record (which in 12 states also disqualifies you at the polls)....

To state the obvious, if these ex-cons voted, they would break for Democrats. “African-American voters are wildly overrepresented in criminal justice populations. African-American voters also historically favor Democratic candidates,” says Christopher Uggen, a sociologist at the University of Minnesota. Uggen and Jeff Manza co-wrote an article for the American Sociological Review in 2002 in which they estimated turnout for disenfranchised ex-cons....

o why is Paul pushing for a bill that could actively hurt his party? “Even if Republicans don’t get more votes, we feel like we’ve done the right thing,” Paul told Politico. This sounds like Paul’s (qualified) support for immigration reform: He’s behind it even though in the short-term, it’s probably a loser for Republicans. I don’t mean to sound naive here about Paul’s motives. He sometimes cultivates renegade Tea Party independence, and I realize that he is also appealing to swing voters: moderates who like it when conservative politicians sound concerned about poor people and minorities. And maybe that’s good for the image of the Republican party overall: Rand Paul, softening agent. Uggen says he did a poll a few years ago and found resounding majority support for letting ex-felons vote. But how many of those people care enough about the issue to vote for Paul based on it? That number has to be tiny. And while it’s possible to argue that Republicans have to move toward immigration reform for their long-term survival, given the rising Latino population and the shrinking white one, felon disenfranchisement just doesn’t have the same grip....

It’s worth pointing out, though, that Paul is the sole sponsor for his bill. In Florida in 2011, Republican Gov. Rick Scott went the other way and tightened voting restrictions on former felons, in spite of criticism about the number of black people he was barring from the polls. Paul has more company from fellow libertarians Ted Cruz and Mike Lee in pushing for sentencing reform. This is the larger fight that felon disenfranchisement is a part of: addressing mass incarceration by lowering or eliminating mandatory minimum sentences, especially for nonviolent drug offenders. “I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said in February at a gala for the conservative American Principles Project. Give him, and Cruz and Lee, credit for being part of this push. Sentencing reform has justice on its side and budgetary common sense, too, given the huge sums it takes to keep prisoners locked up for years. Too bad other Republicans won’t support that cause, or go for giving former felons the vote either.

June 24, 2014 in Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, June 16, 2014

Second Circuit rejects array of challenges to lengthy extension of sex offender registration requirement

For a number of years, sex offenders consistently lost in state and federal courts when challenging various sex offender registration requirements and other restrictions on various grounds.  In recent years, however, it seems at least a few registered sex offenders are having at least a little success with court challenges to new sex offender registration requirements that seem especially punitive or onerous.  But a Second Circuit panel ruling today in Doe v. Cuomo, No. 12-4288 (2d Cir. June 16, 2014) (available here), provides a useful reminder of the uphill battle registered sex offenders face in court. Here is how the opinion starts: 

John Doe appeals from the judgment of the United States District Court for the Eastern District of New York (Amon, C.J.) granting summary judgment in favor of the Governor of the State of New York and the Acting Commissioner of the State of New York Division of Criminal Justice Services on Doe’s as-applied constitutional challenges to the enforcement of certain amendments to the New York State Sex Offender Registration Act. The amendments we are asked to review were enacted after Doe pleaded guilty to misdemeanor attempted possession of a sexual performance by a child, as a result of which he was classified as a level-one sex offender required to register under SORA. The amendments extended the registration requirement for level-one sex offenders from ten years to a minimum of twenty years and also eliminated the ability of level-one sex offenders to petition for relief from registration.  Doe argues, among other things, that requiring him to comply with these post-plea amendments violates the Ex Post Facto Clause and the Fourth Amendment, and deprives him of due process and equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983.  We disagree and affirm the judgment of the District Court.

Notably, the defendant Doe in this case seems reasonably sympathetic for a registered sex offender: his offense was a misdemeanor charge stemming from possessing a few CP images back in 1999, and he fully complied with all registration requirements for a decade.  But, though the defendant presented an array of constitutional claims to argue he should not now be subject to a new extended registration requirement, the Second Circuit said he was Doe out of luck.

June 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Thursday, May 29, 2014

"Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime"

Web_collateral_damageThe title of this post is the title of this important new report released this morning by the National Association of Criminal Defense Lawyers. The genesis of the report and its essential elements are well summarized via the text of an e-mail I received from NACDL about this report. Here is the start of this e-mail:

At an event this morning at the Open Society Foundations in Washington, DC, the National Association of Criminal Defense Lawyers (NACDL) is releasing a major new report -- Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest or Conviction.  With more than 65 million people in America having some form of a criminal record, the universality and import of the problem this nonpartisan report tackles is tremendous.  NACDL's Task Force on the Restoration of Rights and Status After Conviction held hearings all over the country, featuring testimony from more than 150 witnesses from every corner of the criminal justice system, as part of the research leading to this report.  Included among the witnesses were those who have faced unfair, irrational, and often life-altering barriers arising from a brush with the criminal law.  Many of their stories are captured in the report. And many more are available in the complete transcripts of the Task Force’s hearings.

With more than one in four adults in the United States having some form of a criminal record, and more than 2.2 million people currently behind bars in the United States, more than any other nation in the world, the vast impact of the problem of collateral consequences and legal barriers to reentry is undeniable.

  • More than 19 million people in America have a felony conviction on their record.
  • There are 14 million new arrests each year.
  • The burden of the collateral consequences of a conviction, just as arrests figures and so much else about America’s criminal justice system, is racially and ethnically disparate. For example, a criminal record hits black job seekers harder than white job seekers.
  • The U.S. lags behind other countries in the area of the restoration or rights and status.
  • Giving people the opportunity to move beyond a criminal record enhances public safety and saves money.
  • These secret collateral consequences are frequently the result of legislative bodies reflexively and irrationally creating laws as a response to the crime-du-jour, most often without seeking out the appropriate data to craft sound policy.
  • At last count, the American Bar Association’s National Inventory of the Collateral Consequences of Conviction (http://www.abacollateralconsequences.org/) has identified more than 45,000 separate collateral consequences in existence.

Often without any nexus whatsoever to the offense charged and/or for which an individual has been convicted, many people who have a brush with the law lose everything from their voting rights and their Second Amendment right to bear arms, to access to federal student loans. Some even lose their homes as a result of draconian laws designed to exclude entire families from public housing as a result of the alleged misdeeds of a single family member. 

May 29, 2014 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Thursday, May 08, 2014

Fascinating discussion of "mom movement" to reform sex offender registration laws

NBC News has this lengthy new piece about efforts to reform sex offender registration laws under the headline "My Son, the Sex Offender: One Mother's Mission to Fight the Law."  The full piece is worthy of a full read, and here is how it gets started:

In the run up to Halloween one year, Sharie Keil saw something that really made her jump: Missouri governor Jay Nixon, then the attorney general. He was on television to announce that registered sex offenders were hereby banned from participating in her favorite holiday. On threat of a year in jail, they had to stay inside and display a sign saying they had no candy. The goal was “to protect our children,” as Nixon put it, but Keil heard only a peal of political hysteria.

She is not a sex offender nor, at 63, a new-age apologist for pedophiles or predators. She is a mother, however, and in 1998 her 17-year-old son had sex with a pre-teen girl at a party. He was convicted of aggravated sexual abuse, which got him six months in county jail and a lifetime of mandatory registration as a sex offender. Ten years later, after the Halloween law, Keil felt shocked into action.

”As my husband says, I decided to go on the war path,” she remembers. Today, she’s at the forefront of a growing fight against sex offender registries, a shame-free alliance of offenders and their families, supported by researchers and some advocates who helped pass stringent anti-abuse laws in the first place. They’re organized (albeit loosely) under Reform Sex Offender Laws, a five-year-old lobby that claims 38 state affiliates and a steady patter of legal and legislative victories.

Most of their progress, however, has been limited to a slice of the registry: juvenile offenders. That would remove Keil’s son, but this former soccer mom and chapter head of the League of Women Voters wants to abolish the public registry altogether. She funds a powerful RSOL affiliate, Missouri Citizens for Reform, which has helped push sweeping changes through the Missouri House four years in a row, only to see the effort smothered in the Senate or, last summer, stabbed by a governor’s veto.

“Changing the registry would provide relief for tens of thousands of Missourians,” Keil says. “Since there are nearly 800,000 people on the registry nationally, millions of lives would change for the better.”

As reckless as Keil’s ideas may sound, she and her intellectual allies—among them Nicole Pittman, an attorney who slammed registries in a Human Rights Watch report last year—are fervently opposed to sexual abuse and believe in jail time for law breakers. However, they also hope to realign the law with second-chance ideals and new research that shows rehabilitation is possible, even for America’s last pariahs.

If they succeed, Keil believes, public safety will actually improve. As the registries shrink or disappear, law enforcement will be freed to focus on crime prevention. If the movement fails, she warns, public safety could suffer. Truly dangerous people will be lost in the thousands that police must monitor, while relatively harmless offenders break bad in a system that gives them no hope for a normal future.

May 8, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Friday, May 02, 2014

"Kids, Cops, and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis"

The title of this post is the title of this interesting paper newly posted on SSRN and authored by David Singleton. Here is the abstract:

Sex offenders are today’s pariahs — despised by all, embraced by none.  During the past twenty years, society’s dislike and fear of sex offenders has resulted in a flood of legislation designed to protect communities from them.  These laws include residency restrictions, which bar convicted sex offenders from living near places where children are expected to be found.  Given this climate, do lawyers who for sex offenders have any hope of winning justice for their clients?

In 2005, the Ohio Justice & Policy Center (“OJPC”) began a three year-advocacy campaign against Ohio’s residency restrictions.  At first OJPC lost badly — in both the courts of law and public opinion.  But after losing the initial legal challenge, OJPC transformed its seemingly lost cause into a winning effort.  It did so by borrowing an idea from Professor Derrick A. Bell.

Professor Bell is famous, among other things, for his interest-convergence thesis. According to Bell, blacks achieve racial equality only when such progress it is in the interests of whites.  The classic example of Bell’s theory is his explanation of the Supreme Court’s decision in Brown v. Board of Education.  According to Bell, the Court desegregated public schools not for moral reasons but because doing so would improve America’s credibility on racial issues during the Cold War.

OJPC eventually prevailed in its challenges to residency restrictions because it aligned the interests of sex offenders with society’s interests in protecting children from sexual abuse.  Not only did OJPC win two important legal challenges but it also transformed the local media narrative about residency restrictions.

Kids, Cops and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis begins by telling the story of OJPC’s advocacy — both before and after employing an interest-convergence strategy. The article then poses and answers three questions: (1) whether it is appropriate to attach the “interest-convergence” label to OJPC’s sex offender advocacy given that Bell’s thesis is “historically descriptive rather than a recommendation for future-oriented strategies,” according to Professor Stephen Feldman, a leading scholar; (2) whether interest-convergence theory explains the victories OJPC won for its clients; and (3) assuming that interest convergence has value as an advocacy tool, whether it potentially presents a downside for the marginalized clients the lawyer seeks to serve.  I conclude the article with a discussion of a course I developed called Complex Problem Solving for Lawyers, which teaches law students to incorporate Bell’s interest-convergence theory into advocacy on behalf of despised groups like sex offenders.

May 2, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack