Tuesday, December 23, 2014
Is US Rep. Grimm likely to advocate for federal sentencing reform following his felony plea?
The question in the title of this post is my first thought after reading this interesting Reuters story in the wake of a high-profile federal tax fraud plea entered today. The piece is headlined "U.S. Representative Grimm says will not resign after pleading guilty to tax fraud," and here are details:
U.S. Representative Michael Grimm of New York said he would not resign from Congress following his guilty plea on Tuesday to a federal felony tax charge. "As long as I'm able to serve, I'm going to," said Grimm, who noted he easily won a third term in November despite a 20-count federal indictment unveiled in April.
Grimm, a Republican, pleaded guilty in Brooklyn federal court to aiding the preparation of a false tax return in connection with a health food restaurant, Healthalicious, that he co-owned before his political career. "While operating a restaurant, we underestimated the gross receipts and used some of the money to pay employees off the books and some other expenses," Grimm said in court.
As part of a plea deal, Grimm, whose trial had been scheduled for February, also signed a statement of facts, admitting to concealing over $900,000 in gross receipts from 2007 to 2010 and lying during a 2013 deposition....
A Boehner spokesman said he would not comment until he has discussed the issue with Grimm. Grimm told reporters he has had "private discussions" with leadership but would not elaborate.
The 44-year-old former Marine and FBI agent, who represents Staten Island and parts of Brooklyn in New York City, faces a maximum of three years in prison when he is sentenced on June 8. His lawyers indicated they would seek a more lenient sentence.
Grimm told reporters he was accepting responsibility for a "mistake" that occurred before he joined Congress. "For the past four years, I've been a very effective, strong member of Congress," he said, adding that he had received many words of support from his constituents.
House members who plead guilty to a crime that carries two or more years in prison "should" refrain from voting on the floor or participating in committee business, according to House rules. The House could also vote to reprimand, censure or even expel Grimm, as it did in the case of Democratic Representative James Traficant, who was found guilty of taking bribes and other crimes in 2002 but refused to resign.
Prosecutors had accused Grimm of hiring illegal immigrants, paying staffers under the table and under-reporting how much he spent in wages. He was also charged with lying under oath about his practices while defending against a lawsuit brought by former Healthalicious employees.
The indictment grew out of a probe of Grimm's fundraising, morphing into one of the highest-profile prosecutions by the office of Brooklyn U.S. Attorney Loretta Lynch, who has since been nominated to become U.S. attorney general. Lynch in a statement said the plea made clear that U.S. authorities "will vigorously investigate and prosecute fraud wherever we find it, and that no one is above the law."
Given that the last three US Presidents have all admitted violating federal drug laws and have all been (reasonably?) accused of violating many more federal laws, I am moved by Rep Grimm's claims that his admission of violating federal tax laws in the past should not require him to give up his current job making new laws. Moreover, as the title of this post hints, I think there could be real value in having a member of Congress with personal experience with the federal criminal justice system as a defendant.
Saturday, December 20, 2014
Another group of notable new posts at the Collateral Consequences Resource Center
I have noted before on this blog the notable posts appearing at the Collateral Consequences Resource Center, and here are a bunch more of recent vintage:
Tuesday, December 16, 2014
Federal judge in sentencing proceeding(?!?!) declares Prez Obama's immigration order unconstitutional
As reported in this CNN piece, a federal district judge used a federal criminal case to render an opinion that President Obama's recent immigration execution action was unconstitutional. Here are the basic details of a peculiar decision:
A federal judge in Pennsylvania ruled Tuesday that President Barack Obama's move to halt deportations for millions of undocumented immigrants violates the Constitution -- but it's not clear that the ruling will have any immediate impact.
Pittsburgh-based U.S. District Judge Arthur Schwab, a George W. Bush appointee, became the first judge to rule on the legality of Obama's executive overhaul of immigration rules when he issued his unusual opinion in a criminal case. The Justice Department shot back that the judge was "flatly wrong" and his ruling wouldn't halt the implementation of Obama's immigration policies.
The decision -- which came in a criminal case against Honduran immigrant Elionardo Juarez-Escobar, who'd been deported before, returned to the United States and faced charges of unlawful re-entry after a drunk driving arrest -- was unexpected, and is unrelated to the legal challenge dozens of states have launched against Obama's move.
Prosecutors in the case argued that Obama's immigration policies were only meant to apply to civil proceedings, and don't have any impact on criminal proceedings like what Juarez-Escobar faced. Still, Schwab said in his 38-page ruling that Juarez-Escobar could have benefited under Obama's action to halt deportations for some undocumented immigrants.
Obama's action violates the Constitution's separation of powers and its "take care clause," Schwab said. He wrote that Obama's action "goes beyond prosecutorial discretion because: (a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights."...
Schwab said Juarez-Escobar didn't fall within any of the priority categories Obama identified for deportation, so it's not clear that removing him from the country would be a priority -- potentially blurring the lines between civil and criminal proceedings. The Justice Department blasted the opinion, with a spokesperson saying it was "unfounded and the court had no basis to issue such an order."
The full 38-page opinion in this case is available at this link, and there are a number of interesting passages beyond the Court's constitutional analysis. Of particular note, Judge Schwab discusses at some length the Supreme Court's Padilla ruling and its emphasis on the connections between criminal convictions and deportation consequences.
Unsurprisingly, this ruling has already become the subject of some notable commentary. Here is some of the early commentary:
From Jonahan Adler here, "District court declares Obama immigration action unconstitutional (Updated)"
- From Josh Blackman here, "WDPA Finds DAPA Executive Action on Immigration Unconstitutional"
From Ilya Somin here, "A poorly reasoned federal district court opinion striking down Obama’s executive order on immigration"
Should problematic police be on a registry like sex offenders?
The provocative question in the title of this post is drawn from this provocative new commentary by Ed Krayewski at Reason titled "Time for a Police Offenders Registry." Here are excerpts:
There's a moral obligation to keep bad cops off the streets. A job with a police department is not a right and shouldn't be treated like one. Police unions that push for permissive rules that end up protecting bad cops pose a serious public safety threat. Nevertheless, dismantling them where they've taken root is a difficult prospect even in the long-term. There are other ways to keep bad cops off the streets. The federal government, and state governments, ought to create and encourage the use of a police offender registry list. Such a list would register individuals who while employed as law enforcement officers were found unfit for duty or faced serious disciplinary issues they may have resigned to avoid. Just as any other component of comprehensive police reform, this won't eliminate excessive police violence, but it's a start.
When actually identified, a surprising (or not) number of officers involved in controversial, high-profile use of force incidents have previously disciplinary history. Officer Daniel Pantaleo, the New York City cop who put Eric Garner in a fatal chokehold, had been previously accused, at least twice, of racially-motivated misconduct, including strip searching a man in the middle of the street and allegedly hitting his testicles. The police union in New York City is among the strongest in the country. When a rookie cop shot Akai Gurley in apparent panic last month, he didn't think twice to reportedly contact his union rep first. A man lay dying in a stairwell for no other reason that he startled a rookie, and the fact that the officer called his union representative before calling for assistance isn't shocking enough to lead to the officer's termination. Even if it were, it would still be impossible to terminate the officer immediately. While all this is happening, the state of New York is on the verge of placing even more of the disciplinary regime that applies to cops under the purview of the police unions.
But not everywhere is the situation as hopeless as in New York City. In other parts of the country, cops can get fired relatively more easily. But it doesn't stop them from finding jobs elsewhere. Richard Combs, who was the sheriff and only cop in Eutawville, South Carolina, is now facing a murder charge for shooting a resident after an argument at Town Hall, but Combs had been previously terminated from the county sheriff's office for unspecified "unsatisfactory performance." In Cleveland, Ohio, the cop who shot 12-year-old Tamir Rice, mistaking the boy's toy gun for a real one, had been previously found too emotionally unstable and unfit to carry a firearm for law enforcement. In Georgia, the cop who shot and killed 17-year-old Christopher Roupe after the teen opened the door to his home holding a Wii controller, had been previously fired for multiple disciplinary problems including shooting at an unarmed person....
This is just a sampling of stories that received enough local attention to gain some prominence. The situation is unconscionable. Police found unfit for duty in one jurisdiction shouldn't be employed in another. Cops who resign to avoid disciplinary charges shouldn't slither their way into another department. Cops who cost taxpayers millions in lawsuit settlements shouldn't be able to expose taxpayers in other places to the same risk....
State governments, and the federal government, can help. Sex offender registries, which in some jurisdictions can lead to 19-year-olds who receive sexts from their 17-year-old friends being branded sexual predators for life, are an odious thing that makes a mockery of due process and the idea of the penal system as rehabilitation. But for some of the same reasons they would work to police the privilege of employment in law enforcement. Constitutionally, the federal government could not mandate states use its police offender registry list or operate their own. Yet because many of the most troublesome police departments (those in big cities and those in the sticks) also rely most on federal assistance in one way or another, the feds could induce compliance by tying it to such assistance. The federal government has done this before, though usually to push states to impose certain laws on its residents, not to protect residents from abusive government employees. Such a list wouldn't be a comprehensive solution to excessive police violence, but it's an important part, one that could work to lower the number of bad cops operating on the streets and begin to rebuild trust between police and the communities they're supposed to serve.
"Why Plea Bargains are Not Confessions"
The title of this post is the title of this interesting new paper by Brandon Garrett now available via SSRN. Here is the abstract:
Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.”
I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction.
More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.
Thursday, December 11, 2014
"As Though They Were Not Children: DNA Collection from Juveniles"
The title of this post is the title of this notable new paper by Kevin Lapp now available via SSRN. Here is the abstract:
Law enforcement craves data. Among the many forms of data currently collected by law enforcement, perhaps none is more potentially powerful than DNA profiles. DNA databasing helps law enforcement accurately and efficiently identify individuals and link them to unsolved crimes, and it can even exonerate the wrongfully convicted. So alluring is DNA collection that the practice has rapidly expanded to juveniles. The federal government and every state but Hawaii mandate DNA collection from juveniles as a result of some contact with the criminal justice system. A conviction in criminal court, a delinquency adjudication in juvenile court, and even a mere arrest can trigger compulsory DNA collection. Law enforcement also seeks DNA samples from juveniles based on their consent.
This Article provides a comprehensive accounting of current juvenile DNA collection legislation and case law. It then situates DNA collection from juveniles within the law’s longstanding and renewed emphasis on special treatment of children both generally and with particular attention to criminal law and juvenile justice. Bringing to bear Supreme Court jurisprudence, neuroscientific and psychosocial research, juvenile court history, and the critical lens of childhood studies, it argues that DNA collection from juveniles based on contact with the criminal justice system is not reasonable and cannot withstand scrutiny. The government interests served by DNA profiling are reduced with respect to juveniles, and the privacy interests are enhanced. Many of its benefits, including deterrence, are lost with regard to juveniles. The Article calls for the prohibition on DNA collection following an adjudication of delinquency or an arrest, and a ban on consent collection from juveniles. This will protect children, and their childhood, while preserving law enforcement’s ability to exploit genetic databasing and aggregate data collection where its rationale justifies its application.
Tuesday, December 09, 2014
Lots more notable new posts at Collateral Consequences Resource Center
Last week I noted in this post all the notable posts appearing at the Collateral Consequences Resource Center. Just a week later, I see again that te CCRC has lots of new content on a bunch of issues not too often discussed in other like fora, such as these recent postings that seemed worth highlighting:
Wednesday, December 03, 2014
New report from Center for American Progress examines barriers for those with criminal records
The Center for American Progress this week released this notable new report titled "One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records." Here is an excerpts from the report's introduction:
Between 70 million and 100 million Americans — or as many as one in three — have a criminal record. Many have only minor offenses, such as misdemeanors and nonserious infractions; others have only arrests without conviction. Nonetheless, because of the rise of technology and the ease of accessing data via the Internet — in conjunction with federal and state policy decisions—having even a minor criminal history now carries lifelong barriers that can block successful re-entry and participation in society. This has broad implications — not only for the millions of individuals who are prevented from moving on with their lives and becoming productive citizens but also for their families, communities, and the national economy.
Today, a criminal record serves as both a direct cause and consequence of poverty. It is a cause because having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, and more; convictions can result in monetary debts as well. It is a consequence due to the growing criminalization of poverty and homelessness. One recent study finds that our nation’s poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that haunt people for years after they have paid their debt to society....
Moreover, the challenges associated with having a criminal record come at great cost to the U.S. economy. Estimates put the cost of employment losses among people with criminal records at as much as $65 billion per year in terms of gross domestic product....
The lifelong consequences of having a criminal record — and the stigma that accompanies one — stand in stark contrast to research on “redemption” that documents that once an individual with a prior nonviolent conviction has stayed crime free for three to four years, that person’s risk of recidivism is no different from the risk of arrest for the general population.
Put differently, people are treated as criminals long after they pose any significant risk of committing further crimes — making it difficult for many to move on with their lives and achieve basic economic security, let alone have a shot at upward mobility. The United States must therefore craft policies to ensure that Americans with criminal records have a fair shot at making a decent living, providing for their families, and joining the middle class. This will benefit not only the tens of millions of individuals who face closed doors due to a criminal record but also their families, their communities, and the economy as a whole....
This report offers a road map for the administration and federal agencies, Congress, states and localities, employers, and colleges and universities to ensure that a criminal record no longer presents an intractable barrier to economic security and mobility.
Bipartisan momentum for criminal justice reform is growing, due in part to the enormous costs of mass incarceration, as well as an increased focus on evidencebased approaches to public safety. Policymakers and opinion leaders of all political stripes are calling for sentencing and prison reform, as well as policies that give people a second chance. Now is the time to find common ground and enact meaningful solutions to ensure that a criminal record does not consign an individual to a life of poverty.
Some notable new postings at the Collateral Consequences Resource Center
Busy with end-of-semester activities at the end of a busy semester, I have not been able to keep up lately with my usual review of significant postings from the various websites and blogs linked in my sidebars. But I have still made sure to keep up a "new kid" on the cyber-block, the Collateral Consequences Resource Center, because it covers a bunch of issues not too often discussed in other like fora. And these recent postings seemed especially worth highlighting:
Sunday, November 30, 2014
Growing awareness of the limited efficacy of local sex offender residency restrictions
This new Wall Street Journal article highlights the new awareness of enduring problems with sex offender residency restrictions. The lengthy piece is headlined "Cities and Towns Scaling Back Limits on Sex Offenders: Officials Say Buffer Zones Don’t Prevent Repeat Offenses and Make Predators Harder to Track," and here are excerpts:
When Palm Beach County, Fla., was sued earlier this year over its housing restrictions for registered sex offenders, its attorneys took an unusual approach: They suggested the county relax its law.
The county’s commissioners — prompted largely by the lawsuit brought by a sex offender who claimed the limits rendered him homeless — voted in July to let such offenders legally live closer to schools, day-care centers and other places with concentrations of children. “We realized the law was costing the taxpayers money [for services for the homeless] and was causing more problems than it was solving,” said county attorney Denise Nieman.
In the mid-1990s, states and cities began barring sex offenders from living within certain distances of schools, playgrounds and parks. The rationale: to prevent the horrible crimes sometimes committed by offenders after their release. In October, for instance, officials charged sex offender Darren Deon Vann with murdering two women in Indiana. Mr. Vann, who is suspected of killing several others, pleaded not guilty.
Now, a growing number of communities are rejecting or scaling back such limits — out of concern that they don’t prevent repeat offenses, and, in some instances, may make sex offenders harder to track....
A 2013 Justice Department study that examined Michigan’s and Missouri’s statewide restrictions showed they “had little effect on recidivism.” Other studies have found the vast majority of sex-offense cases involving children are committed not by strangers but by family members or others with established connections to the victims, such as coaches or teachers.
About 30 states and thousands of cities and towns have laws restricting where sex offenders can live, while others are adding them. In March, a 1,000-foot buffer from parks took effect in San Antonio. In July, Milwaukee passed a law banning sex offenders from living within 2,000 feet of a variety of places where children gather....
Critics, however, say such moves do little more than score lawmakers political points and give an area’s residents a false sense of security. Some argue they can make communities less safe, by making it hard for offenders to find stable housing.
David Prater, district attorney of the county that encompasses Oklahoma City, said he and other state prosecutors have tried to get the state to relax its 2,000-foot buffer, to no avail. “No politician wants to be labeled the guy who lessens restrictions on sex offenders,” he said....
Some smaller towns are chucking restrictions, partly in the name of public safety. De Pere, Wis., a town of 23,000 south of Green Bay, tossed out its 500-foot buffer last year after reviewing data on its effectiveness, said several council members. The issue was reopened by some townspeople several months ago ,when a convicted sex offender moved across the street from a school for children with special needs. But the council didn’t budge. “You track where they live, you check in on them, but you let them live at home, where they’re comfortable and stable,” said Scott Crevier, a DePere city councilman. “I feel we’re actually safer than a lot of other towns in the state that have them.”
Sunday, November 23, 2014
"On Life Support: Public Health in the Age of Mass Incarceration"
The title of this post is the title of this notable new report from the Vera Institute of Justice as part of a new initiative called Justice Reform for Healthy Communities. A helpful report overview starts this way:
Each year, millions of incarcerated people — who experience chronic health conditions, infectious diseases, substance use, and mental illness at much higher rates than the general population — return home from correctional institutions to communities that are already rife with health disparities, violence, and poverty, among other structural inequities.
For several generations, high rates of incarceration among residents in these communities has further contributed to diminished educational opportunities, fractured family structures, stagnated economic mobility, limited housing options, and restricted access to essential social entitlements.
Several factors in today’s policy climate indicate that the political discourse on crime and punishment is swinging away from the punitive, tough-on-crime values that dominated for decades, and that the time is ripe to fundamentally rethink the function of the criminal justice system in ways that can start to address the human toll that mass incarceration has had on communities.
At the same time, the nation’s healthcare system is undergoing a historic overhaul due to the passage of the Affordable Care Act (ACA). Many provisions of the ACA provide tools needed to address long-standing health disparities. Among these are:
> Bolstering community capacity by expanding Medicaid eligiblity, expanding coverage and parity for behavioral health treatment, and reducing health disparities.
> Strengthening front-end alternatives to arrest, prosecution, and incarceration.
> Bridging health and justice systems by coordinating outreach and care, enrolling people in Medicaid and subsidized health plans across the criminal justice continuum, using Medicaid waivers and innovation funding to extend coverage to new groups, and advancing health information technology.
Saturday, November 22, 2014
Interesting look at California's Proposition 47 and undoing collateral consequences
I just noticed, over at the Collateral Consequences Resource Center, that California Federal Public Defender Jeffrey Aaron has this new posting exploring the impact of his state's approval of Proposition 47 which downgraded various felonies to misdemeanors. Here are excerpts:
Significantly, Proposition 47 applies not only to persons who are currently “serving a sentence,” but also to those who have already fully served their sentences. This means that thousands of people with California felony convictions can under certain circumstances petition to have their case recalled, the crime re-designated a misdemeanor, and be resentenced. Once reduced to misdemeanors, qualifying crimes can be set aside under California Penal Code § 1203.4 (felony or misdemeanor cases sentenced to probation) or 1203.4a (misdemeanor cases sentenced to prison). These provisions allow a defendant to withdraw his plea of guilty, enter a not guilty plea, and have the judge dismiss the case. The record can then be expunged.
The importance of this retroactive effect of the new law cannot be over-estimated. While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community. For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.
It is amazing that just a few months ago, a defendant with two prior felony drug possessions in state court, and currently charged with drug distribution in federal court, faced a mandatory sentence of life imprisonment. Now he can have those California priors reduced to misdemeanors, and then dismissed, so that, under certain circumstances, they can no longer be used to enhance the federal sentence. Generally, convictions that are set-aside for reasons not involving innocence or errors of law will still result in criminal history points. Counsel might argue in resentencing that the reduction from felony to misdemeanor supports a finding that the conviction over-represents the defendant’s criminal history....
The Proposition provides relief to anyone convicted in the past of a wide range of property and drug crimes, as long as the person does not have a “disqualifying prior.” Disqualifying priors include offenses requiring sex offender registration, and specified violent offenses....
Simply by going to court to have their felony charges converted to misdemeanors, people can end up with a criminal record that looks very different, and has a very different effect.
Thursday, November 20, 2014
"The Racist Origins of Felon Disenfranchisement"
The title of this post is the headline of this recent New York Times commentary by Brent Staples. Here are excerpts:
The state laws that barred nearly six million people with felony convictions from voting in the midterm elections this month date from the late 19th and early 20th centuries, when Southern lawmakers were working feverishly to neutralize the black electorate. Poll taxes, literacy tests, grandfather clauses and cross burnings were effective weapons in this campaign. But statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.
This racially freighted system has normalized disenfranchisement in the United States — at a time when our peers in the democratic world rightly see it as an aberration. It has also stripped one in every 13 black persons of the right to vote — a rate four times that of nonblacks nationally. At the same time, it has allowed disenfranchisement to move beyond that black population — which makes up 38 percent of those denied the vote — into the body politic as a whole. One lesson here is that punishments designed for one pariah group can be easily expanded to include others as well....
Maine residents vigorously debated the issue last year, when the Legislature took up — and declined to pass — a bill that would have stripped the vote from some inmates, whose crimes included murder and other major felonies. Families of murder victims argued that the killers had denied their loved ones the right to vote and therefore should suffer the same fate.
Those who opposed the bill made several arguments: That the franchise is enshrined in the state Constitution and too important to withdraw on a whim; that voting rights keep inmates connected to civic life and make it easier for them to rejoin society; that the notion of restricting rights for people in prison was inconsistent with the values of the state.
A former United States marshal and police chief argued that revoking inmate voting rights would strip imprisoned people of dignity and make rehabilitation that much more difficult. The editorial page of The Bangor Daily News argued against revocation on the grounds that, “Removing the right of some inmates to exercise their legal responsibility as voters in a civilized society would undermine that civilized society.”
The fact that most states view people who have served time in prison as beyond the protection of the bedrock, democratic principle of the right to vote shows how terribly short this country has fallen from achieving its ideals.
Tuesday, November 18, 2014
Ninth Circuit upholds injunction, on First Amendment grounds, blocking California law requiring sex offenders to report report online activities
As reported in this Bloomberg story, "California can’t enforce a law to combat sex trafficking because it tramples on free speech rights of sex offenders by requiring them to report online activities, such as their Twitter, e-mail and chatroom accounts, a U.S. appeals court ruled." Here are more of the ruling's basics via the press:
The San Francisco-based court today upheld a judge’s decision to block enforcement of a voter-approved law that was backed by former Facebook Inc. (FB) executive Chris Kelly and garnered support from more than 80 percent of California voters in 2012.
The measure, known as Proposition 35, isn’t clear about what accounts or Internet service providers offenders are required to report and targets online speech that could include blogging about politics and posting comments on news articles, the appeals court’s three-judge panel said today.
The law also harms sex offenders’ ability to engage in anonymous speech because it allegedly allows police to disclose their online identities to the public, the court said. Failure to report on Internet activity can lead to criminal sanctions.
A requirement that registered sex-offenders notify police within 24 hours of using a new Internet identity chills activity protected by the U.S. Constitution’s First Amendment, U.S. Circuit Judge Jay S. Bybee wrote in the unanimous ruling.
The ruling in Doe v. Harris, No. 13-15263 (9th Cir. Nov. 18, 2014) (available here), officially gets started this way:
California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation (“CASE”) Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person.” Id. § 290.015(a)(4)–(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider (“ISP”). Id. § 290.014(b).
Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.
Wonderful new on-line resource, Collateral Consequences Resource Center, now available
I am very pleased to be able to report on a very important addition to the criminal justice on-line universe, the Collateral Consequences Resource Center. This posting by Margy Love provides this background and something of a mission statement:
The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014. We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.
The legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects. The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation. Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served. Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind. Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention. People with a record are organizing to promote change.
The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: staff@CCResourceCenter.org.
Impressively, this new web resource (which I guess I will call CCRC) has a ton of terrific content already assembled at webpages dedicated to State-Specific Resources, Books and Articles, and Reports and Studies. And here are links to a few recent notable blog postings:
- More states rely on judicial expungement to avoid collateral consequences
- Minnesota project examines how different life would be with a criminal record
- Dismissed Charges Not Always the Best Outcome?
Sunday, November 16, 2014
"The Quiet Army: Felon Firearms Rights Restoration in the Fourth Circuit"
The title of this post is the title of this new paper by Robert Luther III now available via SSRN. Here is the abstract:
This article discusses the restoration of firearm rights for felons and specifically addresses the methods by which individuals convicted of felonies under state law may be relieved of collateral federal firearms disabilities in the Fourth Circuit, with a particular emphasis on the practice in Virginia. It concludes by calling on the Fourth Circuit to make clear in an appropriate case that “a defendant’s ‘civil rights’ have been restored under state law for purposes of 18 U.S.C. § 921(a)(20) if the state has also restored the defendant’s right to possess firearms.”
Due to the Supreme Court of Virginia's interpretation of the Virginia Constitution in Gallagher v. Commonwealth, which concluded that the governor lacked the authority to restore firearm rights and that only the state trial court could do so, the Fourth Circuit’s failure to construe 18 U.S.C. § 921(a)(20) as suggested will have the unintended and disparate effect of failing to relieve all state-convicted felons in Virginia from their collateral federal firearm disabilities. To read 18 U.S.C. § 921(a)(20) not to remove a federal firearms disability when the felon has received the unrestricted restoration of his firearm rights by a Virginia trial court would yield a perverse result because the purpose of this statute was to redirect the restoration process to the states.
Thursday, November 06, 2014
New California report finds many challenges in sex offender monitoring
As reported in this local piece from California, "two-thirds of parole agents who monitor sex offenders juggle caseloads that exceed department standards, a state corrections review reported Wednesday in response to an Orange County murder case." Here is more about the report's findings:
Agents are supposed to supervise between 20 and 40 parolees, depending on how many are high-risk offenders. But more often than not, the state Office of the Inspector General found, agents are overburdened. At 14 of the state’s 37 units responsible for supervising paroled sex offenders, all agents had bigger caseloads than department policies allow. The inspector general surveyed the units’ caseloads in August.
The report also criticized the effectiveness of GPS monitoring and housing restrictions enacted through Jessica’s Law, a 2006 ballot measure. The inspector general tied the restrictions to a spike in homelessness and strained resources....
The state Sex Offender Management Board recommended four years ago that agents supervise no more than 20 paroled sex offenders. But the inspector general said corrections officials haven’t adopted the lower threshold.
The inspector general report was requested by state Sen. Darrell Steinberg after the April arrests of Steven Gordon and Franc Cano, two transient sex offenders registered to live in Anaheim. Steinberg was head of the Senate at the time and chairman of its rules committee....
Steinberg didn’t request that the inspector general probe how Gordon and Cano were supervised by parole agents. Previously, the office did just that after the high-profile convictions of sex offenders Phillip Garrido and John Gardner. This time, Steinberg focused on broader questions about the impact of GPS monitoring and housing restrictions.
The Department of Corrections and Rehabilitation estimates that it spent about $7.9 million to monitor more than 6,000 paroled sex offenders with GPS devices in the last fiscal year, a decline from $12.4 million four years earlier.
The detailed 80+-page report from the California Office of Inspector General, which is titled "Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions," is available at this link.
November 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack
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 (11) | 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.