Sunday, April 17, 2016
"Colorado 8th-graders caught sexting could have to register as sex offenders"
The title of this post is the headline of this notable press report which helps highlight why so many juvenile justice advocates are so concerned about the broad reach of modern sex offender laws and registries. Here are the details:
Three Colorado middle and high schools were rocked by a string of recent underage sexting scandals, prompting police investigations. If charged, the teens involved in the case — some as young as eighth-graders — could face charges of child pornography, which would require them to register as sex offenders if convicted.
The stiff penalties for sexting has sparked a debate in Colorado and other state assemblies over whether misbehaving teens should face the same punishment as child pornographers. But efforts by the Colorado Legislature to lighten the penalties have stalled.
In the sexting case at Bear Creek, a K-8 school in Lakewood, the five students involved were in eighth grade. School leaders turned to the local police after discovering that nude photos were being circulated, The Denver Post reported. Meanwhile, Colorado Springs police were contacted last Wednesday about allegations that a partially nude photo was shared among a circle of students from two other Colorado schools, Pine Creek High School and Challenger Middle School, according to KRDO news.
At this point, no charges have been filed in any of the cases, but the Pine Creek and Challenger school cases have been handed over to the Fourth Judicial District Attorney’s Office. The juveniles involved could be hit with a felony sex offender charge.
Penalties for underage sexting vary from state to state. In Colorado, minors caught trading nude photos are legally susceptible to harsh child pornography charges. It’s one reason why the Legislature has been working toward a solution to reduce possible sentencing for teens who sext. The latest bill to reach the Legislature would reduce charges for minors to a misdemeanor, echoing the laws of 11 other states. But a vote on the Colorado measure stalled in a House committee last week. Lawmakers against the measure were primarily concerned that, while it would be good to reduce potential child pornography charges for sexters, the bill was still too harsh on kids sending nude images.
State Representative Yeulin Willet, who cosponsored the bill, says that the misdemeanor charge did not go too far. He argued that the juvenile petty offense that the bill introduced accounts legally for "virtually no crime at all" and "basically just takes that juvenile into some counseling or education, end of story."... "To say that this is a victimless situation is just not a fact," he said. "These images get stolen, hacked, now they end up in the hands of thousands or more via digital media, and now you have a suicidal young girl."
But Jennifer Eyl, director of family stability programs at the Rocky Mountain Children’s Law Center, says that even the misdemeanor charge was too harsh. It criminalized the behavior of sexting itself, even consensual sexual behavior between teens, she said, rather than targeting the issue of non-consensual spreading of nude images. "It’s really kind of this blanket prevention of sexting, which, we work with kids, we just know that that’s not going to happen. Sexting is part of 21st-century communication between teenagers," she said. Eyl also expressed concerns that the most vulnerable children — in the foster system or without strong parental involvement — were particularly susceptible to blanket charges because foster parents might be more inclined to involve police should they find nude photos.
A few prior related posts:
- The many fascinating legal and social issues swirling around "sexting"
- Should sexting lead to sex offender registration?
- "Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases"
- Third Circuit upholds bar on sexting prosecution threatened by state DA
- "Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says"
- "Sexting or Self-Produced Child Pornography?"
- New York Times reviews juve problems with modern sex-offender laws
- "Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"
April 17, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8)
Wednesday, April 13, 2016
Federal district judge declines to enjoin "scarlet passport" provision of new federal International Megan’s Law
As reported in this AP piece, a "federal judge declined Wednesday to immediately block a law that requires a marker to be placed in the passports of people convicted of sex offenses against children." Here is more about a notable first ruling about a notable provision of a notable new federal law:
Since the marker provision has not yet gone into effect, deciding whether to block it over constitutional issues would be premature, U.S. District Court Judge Phyllis Hamilton said. "It is not clear, for example, what form the identifier will take, which citizens will be required to carry a passport with the identifier, or whether the identifier will appear on the face of the passport or will be readable only by a scanner," she said.
Opponents of the marker have called it a "Scarlet Letter" that would wrongly imply that passport holders had engaged in child sex trafficking or child sex tourism and subject them to danger. Janice Bellucci, the attorney challenging the law, said she wasn't sure yet whether she would appeal Hamilton's ruling. Bellucci had requested a preliminary injunction against the law.
Bellucci said the judge missed a primary argument for blocking the law. "It doesn't make any difference what the identifier is and how it's applied to a passport," she said. "The fact is any identifier violates the constitution." Bellucci has said a marker would unlawfully compel speech.
The passport marker is part of the so-called International Megan's Law that President Barack Obama signed in February. It also requires that other countries are notified that registered sex offenders are traveling there. The Department of Justice says the law attempts to address cases where people evade such notifications by traveling to an intermediate country before going to their final destination.
Prior related posts:
- "International Megan's Law" heading now to Prez Obama's desk
- "Do sex offenders deserve a scarlet letter on their passport?"
- Federal court to hear challenge to "scarlet passport" provision of International Megan’s Law
Sunday, April 10, 2016
"Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"
A helpful reader alerted me to this article which has the title I have used for the title of this post. I think these excerpts captures some the themes of this lengthy article:
A focus on the juvenile sex offender — or any juvenile offender — has potential upsides. It invites audiences to see a whole person and a complex situation and to empathize with the person who has done, or been accused of doing, harm. The invocation of childhood, and its suggestion of innocence by reason of immaturity, can spread sympathy more widely to whole communities harmed by the carceral state, particularly when kids are secondary victims of parental incarceration and systemic “civil death” or disenfranchisement.
Coverage of the JSO often unpacks the category of “sex offender” — pointing out that it includes convictions for sexting, public urination and consensual sex between minors, as well as violent rape and the abuse of children; it can expose the uniquely harsh treatment of all these people by the U.S. criminal justice system and the public. These stories point to the youthful offender as collateral damage in a regime of indiscriminate and ever-escalating penalties....
But there are also significant downsides to campaigns that construct children as exceptional and different from adults. The public may just as easily be left feeling that adults who break the law are bad and deserve all they get — or that guilty people do not deserve fairness or sympathy. This gives legislators a rationale for trading off youth-friendly criminal justice policies for harder adult penalties, as recently happened when New Mexico legalized sexting between teens but increased penalties for people 18 and older sexting with people under 18. Not just adults but some youth can be penalized by the focus on “children.” Call the person who breaks the law a “child,” and there’s a danger that any young person not demonstrably childlike will end up prosecuted as an adult.
Exclusive focus on the young offender — rather than a rejection of the entire sex offender regime — avoids the larger, less politically popular truth. “Sex offender registries are harmful to kids and to adults,” says Emily Horowitz, associate professor of sociology and criminal justice at St. Francis College in Brooklyn, and a board member of the National Center for Reason & Justice, which works for sensible child-protective policies and against unjust sex laws. “No evidence exists that they prevent sex crimes either by juvenile offenders or adult offenders.”
Such a strategy can invite a wider range of supporters, but it also can mean inadvertent acceptance or even endorsement of policies that are antagonist to justice for wider groups, if not for everyone. For instance, [Center on Youth Registration Reform] (CYRR) is collaborating with Eli Lehrer, of the free-market think tank R Street; he is also a signatory of the conservative Right on Crime initiative. Flagged on the CYRR site is an article by Lehrer, published this winter in National Affairs, that argues for taking kids off the registry. But the piece also concludes that ending the registries would be “unwise” and suggests they’d be really good with a few “sensible” tweaks. Lehrer also proposes hardening policies — such as “serious” penalties for child pornography possession and the expanded use of civil commitment — that data reveal to be arbitrary or ineffective and many regard as gross violations of constitutional and human rights.
Wednesday, March 30, 2016
Federal court to hear challenge to "scarlet passport" provision of International Megan’s Law
As reported in this Wall Street Journal article, a constitutional challenge to a contoversial aspect of a law passed by Congress last month is schedule for a federal court hearing today in California. The article is headined "Law Creating Passport Mark for Sex Offenders Faces First Challenge: Lawsuit targets ‘unique identifier’ for passports of those convicted of sex crimes involving minors," and here are excerpts:
A new federal law requiring the State Department to mark the passports of certain convicted sex offenders is expected to face its first test in federal court on Wednesday. A group of convicted sex offenders has asked a federal judge in Oakland, Calif., to block the measure pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality.
The law, International Megan’s Law to Prevent Demand for Child Sex Trafficking, mandates the State Department to add a “unique identifier” to passports of Americans convicted of sex crimes involving minors and that U.S. officials to alert foreign governments when those Americans travel abroad.
The judge, Phyllis J. Hamilton, is scheduled to hear arguments on Wednesday on whether to suspend implementation of the passport mark and the notification requirement. The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional.
“For the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship,” says the lawsuit, filed on Feb. 8 in federal district court in Oakland, Calif.
The new law codifies a nearly decade-old program called Operation Angel Watch, which U.S. officials said has helped to curb child-sex tourism by alerting countries of sex offenders traveling to them. Supporters say the law will help countries with a lack of resources deal with child predators and encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S. “Knowledge is power in terms of protection,” said Rep. Chris Smith (R., N.J.), who sponsored the bill. Rep. Smith said the passport mark to be created by the State Department will help keep Americans covered by the law from concealing their destination by traveling to a foreign country by way of another to engage in sex tourism.
The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe.... Rep. Smith said he got the idea for International Megan’s Law during a meeting with a delegation of Thai officials about human-trafficking. He asked them what they would do if the U.S. alerted them when a registered offender was traveling to their country and “They said, ‘Well, we wouldn’t give them a visa,’ ” Mr. Smith recalled....
Janice Bellucci, a lawyer who represents the lawsuit’s plaintiffs, said she found few precedents for the passport identifier in her research. Among them: The Nazis confiscated Jewish passports and marked them with a “J,” and the internal passports in the Soviet Union singled out Jews by listing their ethnicity as Jewish, while other citizens were identified by their place of birth, she said.
Mr. Smith rejected the lawsuit’s comparisons and said California Reform Sex Offender Laws, a group Ms. Bellucci is president of, and others have long sought to weaken sex-offender laws. “U.S. law denies passports to delinquent taxpayers, deadbeat parents and drug smugglers,” the congressman wrote in a recent op-ed published in the Washington Post. “The law’s passport provision, however, does not go this far.”
International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to Ms. Bellucci. Nor does it exempt those who were minors at the time of their offense.
Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about 200,000 of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court. “This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.”
March 30, 2016 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)
Thursday, March 24, 2016
Am I crazy to really like the "White Collar Crime Offender Registry" now being developed in Utah?
The question in the title of this post is prompted by this notable new Wall Street Journal article headlined "Financial Crime: a New Twist on the Sex-Offender Registry: Utah is most aggressive jurisdiction in publicly shaming financial criminals." Long-time readers likley know that I tend to be a supporter of shaming sanctions as an alternative to imprisonment in some settings, and I see financial crimes as an especially useful arena to explore alternative punishments. Here are details on how Utah is engaged in an alternative sanctions experiment:
States have taken the idea of the sex-offender registry and applied it to everything from kidnapping to animal abuse. Utah is expanding it into new territory: financial crime. An early version of the White Collar Crime Offender Registry, which has been online since February, includes more than 100 people convicted of tax, credit-card or insurance fraud; thefts from employers or friends; and bilking investors.
They include 41-year-old Kenneth Ray Wagner. “Eye Color: Blue. Hair Color: Blonde … Targets: Insurance company.” The registry displays Mr. Wagner’s mugshot and explains that he was convicted in 2008 of fraud for dismantling his motorcycle, hiding the parts in a storage locker and claiming to his insurance company that it had been stolen.
The list makes Utah the most aggressive jurisdiction in the country when it comes to publicly shaming financial criminals. No other state operates such a list. The Securities and Exchange Commission often shields the identities of offenders. The agency last month refused a public-records request by The Wall Street Journal for information on sanctions paid by specific individuals, saying that providing such information would be “a clearly unwarranted invasion of personal privacy.”
The Financial Industry Regulatory Authority does require disclosure of events like some criminal convictions, regulatory actions and customer complaints. But it only applies to securities professionals, and the disclosures are intermingled in a database that includes more routine facts like work history.
Utah lawmakers say their list, which is being administered by the state’s attorney general, will help protect investors by offering easy access to information about con artists. It could also create leverage to get felons to make their victims whole. Convicts who comply with court orders on time and pay restitution in full won’t appear on the list. “That’s the carrot,” Utah Attorney General Sean Reyes said.
The new policy plunges the state into a broader debate about using name-and-shame tactics to punish convicts who have already served their time. Registries have proliferated rapidly in the U.S., experts say. While some lists restrict access to law-enforcement agencies or fire officials, others can be viewed online by anyone, according to the National Conference of State Legislatures. In addition to the 50 states that publicly track sex offenders, five states including California require registration for arson. Minnesota, Illinois and six others maintain lists of methamphetamine producers. In Indiana, a public website lets visitors use Google Maps to find the location of homes that have been used as meth laboratories. Tennessee requires registration for animal abuse— something nine other state legislatures are debating. Florida law requires registration by anyone convicted of a felony of any kind for up to five years after completing the sentence.
Utah itself maintains a sex-offender and kidnap-offender list, as well as its new financial-crimes registry. In all, the number of Americans on such lists will soon approach a million, if it isn’t already there, said J.J. Prescott, a law professor at the University of Michigan. He warned of possible unintended consequences from applying a public alert designed for sex offenses to other crimes, such as the risk of drug-offender registries being used by addicts to find suppliers....
Utah’s white-collar registry will include anyone convicted of second-degree frauds or other financial felonies since January 2006. A total of about 230 people are expected to be on the registry when it is formally launched in a few months, officials said. The state will generally keep people registered for 10 years after a first offense. A second offense adds another decade, and people with three convictions never get off.
Mr. Wagner’s lawyer, Tara Haynes, said he already has paid a considerable price for his crime. He appeared on the list after serving 90 days in county jail and being ordered to pay more than $16,000 in restitution. “He is not a white-collar criminal,” Ms. Haynes said. "He’s a blue-collar construction worker.”
Utah lawmakers voted last year to create the registry to stem what they called a growing tide of white-collar crime in the state, particularly by con artists preying on its close-knit religious communities. Convicts need to fill out a form to register, arrange to have a photo taken and update their address and phone number if they change. All but one entry in the early version of the registry includes a photo, typically a mugshot, while some also list aliases such as “ Missy Moniker” or “Connie.”
The site has some glitches. It included one man who died of cancer last year—he was removed after The Wall Street Journal sent officials a link to his obituary—and another where the wrong offense was initially shown. Mr. Reyes said the state is still vetting the registry, including by asking offenders to check the accuracy of their entries. “We want to be fair,” he said.
Some legal experts say Utah’s approach could be an improvement on federal efforts to encourage restitution.... The SEC has yet to collect $9.4 billion of $17.7 billion of sanctions it has imposed in the last five fiscal years, according to data on its website.
The question of whether Utah’s registry violates defendants’ rights could end up in court. Clair Rulon Hawkins, a former employee of a Utah real-estate firm, was convicted in 2013 of defrauding an investor who lost $852,000 deposited on two lots of land that Mr. Hawkins helped sell. Mr. Hawkins served four months in Salt Lake County jail and a halfway house. He remains subject to a restitution order for more than $1.4 million. The 50-year-old is appealing his conviction. He also plans a legal challenge to his inclusion on the Utah registry, arguing it violates his constitutional rights to due process, privacy and economic liberty, his lawyer said.
State lawmakers and other officials hope their idea will catch on nationally. Mr. Reyes, the attorney general, said his office has been contacted by legislators in several states as well as by federal prosecutors interested in replicating the experiment. “I know we’re the first in the nation for doing it,” said Michael McKell, a Republican who sponsored the bill in the Utah House to create the white-collar registry. “I certainly don’t think we will be the last.”
Tuesday, March 22, 2016
Federal district judge interprets Nebraska law to preclude placing juve on its public sex offender list
As reported in this local article, a "federal judge has blocked Nebraska from putting a 13-year-old boy who moved here from Minnesota on its public list of sex offenders." Here is more about this notable ruling:
Senior U.S. District Judge Richard G. Kopf said if the boy had done in Nebraska exactly what he did in Minnesota he would not have been required to register as a sex offender "and he would not be stigmatized as such." "It therefore makes no sense to believe that the Nebraska statutes were intended to be more punitive to juveniles adjudicated out of state as compared to juveniles adjudicated in Nebraska," the judge wrote in a 20-page order.
In Nebraska, lawmakers opted to exclude juveniles from the Nebraska Sex Offender Registration Act unless they were prosecuted criminally in adult court, even though it meant losing thousands in federal funding. But the way the law is written made it appear that all sex offenders who move to Nebraska must register.
When the Minnesota boy in this case moved here to live with relatives, the Nebraska State Patrol determined he had to register because of a subsection of the law....
In this case, the boy was 11 when he was adjudicated for criminal sexual conduct in juvenile court in Minnesota. A judge there ordered him to complete probation, counseling and community service, and his name went on a part of that state's predatory offender list that is visible only to police. Even before that, the boy had moved to Nebraska to live with relatives.
In August 2014, the Nebraska probation office notified his family he was required to register under the Nebraska Sex Offender Registry Act or could be prosecuted. That same month, the boy's family filed a federal lawsuit seeking to block the patrol from putting him on Nebraska's registry, which is public.
In Monday's order, Kopf concluded that the boy wasn't required to register in Minnesota because he was adjudicated in a juvenile court, not convicted in adult court, so Nebraska's act doesn't apply. He cited Nebraska Juvenile Code, which specifically says juvenile court adjudications are not to be deemed convictions or subject to civil penalties that normally apply. An adjudication is a juvenile court process through which a judge determines if a juvenile committed a given act.
Kopf's order said it was apparent that the purpose was to identify people guilty of sex offenses and to publish information about them for the protection of the public. "It is equally apparent that the Nebraska Legislature has made a policy determination that information regarding juvenile adjudications is not to be made public, even though this has resulted in the loss of federal funding for non-compliance with (the federal Sex Offender Registration and Notification Act)," he said.
Late Monday afternoon, Omaha attorney Joshua Weir said the boy's grandmother was so excited when he called with the news she had to pull over in a parking lot. "They were very, very relieved," he said. Weir said the boy is a healthy, happy kid now and flourishing in school. "It would've been a tragedy if he would have been branded a sex offender," he said. "That's something that sticks with you for the rest of your life."
The state could choose to appeal the decision within the next 30 days.
Wednesday, March 09, 2016
"Incarcerated people voted in primaries in Vermont, Puerto Rico, and Maine. Why can’t they vote anywhere else?"
The question in the title of this post is the sub-headline of this notable new piece by Vann Newkirk at The Atlantic. The piece's main headline is just "Polls for Prisons," and here are excerpts:
Why can’t most people in prison vote? Although states display considerable range of policies on the issue of how — if at all — people can vote after being released from institutions or onto parole or probation, the general idea is that the ballot box stops where the bars begin. But on Tuesday, 6,195 inmates voted in Puerto Rico’s Republican primary — where they comprised one-sixth of the voters who cast their ballots. Their example challenges many of the premises of felon disenfranchisement, and suggests that fears of what would happen if it were repealed are overblown.
The logic behind felony disenfranchisement within prisons and without is so deeply rooted in American ideas of crime and punishment it can seem tautological: Of course prisoners can’t vote; they’re prisoners! However, recent primary elections in Vermont, Maine, and Puerto Rico challenge that common knowledge and provide a glimpse of what the country’s voting process might look like if the franchise was extended to those serving time.
The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment — a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.
But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting — for example, fraud or bribery. This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.
Jeff Manza and Christopher Uggen’s Locked Out: Felon Disenfranchisement and American Democracy details how early incarceration’s link to indebtedness and poverty dovetailed with widespread property and tax suffrage requirements to create a de facto system of disenfranchisement. Paupers or debtors were often denied the vote through their lack of property or their inability to pay poll taxes, and both were likely to face prison time for felonies, especially if they could not afford fines. Both incarceration and civil death were largely threats faced only by the lower classes, a correlation that turned causal as the prison system was codified and American mass incarceration was born....
A key legal factor in defense of civil death has been the idea that felons have broken the social contract and have forfeited their rights in participating in it. Thus, civil death is considered a reflexive defense of the social contract and a fitting punishment. However, that reasoning falls doubly short. Even death-row inmates retain a broad array of constitutional rights, including access to due process, the right to sue, and the right to appeal. Why is the right to vote excluded? Also, the social contract may not need civil death to defend it. The social fabric of Vermont and Maine, where felons have and will vote in general elections, can hardly be considered to have been irreparably damaged by their participation.
Perhaps it’s not coincidence that Vermont and Maine are the two whitest states in the country. They’re comparatively immune to the racialization of crime policy and rhetoric that dominates conversations elsewhere. In states where the social contract has always been interpreted through a lens of racial tension and where criminalization and race have often been intertwined, it may be harder to challenge policies that have been accepted as deeply as self-evident truths. Or, in plainer language, some people are less enthusiastic about the idea of minority inmates having meaningful participation in elections than they might be if most inmates were white.
International comparative analyses simply reinforce the lessons of Vermont, Maine, and Puerto Rico. Prisoners in dozens of countries, including Canada, Germany, South Africa, and Israel, are allowed to vote in all elections — without significant problems.
The sky hasn’t fallen in Vermont or Maine either. Inmates in Puerto Rico may be playing a serious role in advocating for national assistance for the island’s troubles, voting at a time when it has become more difficult for everyone else. Perhaps the idea of prisoners as stable voting populations, or prisons as reliable polling centers, could provide an example for states on the mainland struggling with declining turnout. At the very least, Vermont, Maine, and Puerto Rico should alleviate some fears about a possible post-disenfranchisement future in the United States. The death of civil death doesn’t kill democracy.
As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote":
Though Berman agrees that disenfranchisement laws disproportionately affect racial minorities, his argument is founded on a more fundamental belief. "The right to participate in the political process flows from being subject to the laws, rules and regulations that political process sets forth," says Berman, "Prisoners are in some sense being subjected to those rules and regulations in a more severe way than those who vote — in some ways they're even more affected by our legal system — therefore they should have the right to fully partake in the political process."
Berman's advocacy of inmate enfranchisement is also driven by his instinct that historical expansions of the franchise — whether to African-American men in 1870 or to women in 1920 — have in hindsight never been perceived as a mistake. Generally, he feels that expanding the franchise is beneficial to democracy. If Berman had his way, voting rights would also be extended to children as young as 10 years old. "My nine-year-old strikes me as a lot more political knowledgeable than a lot of adults I deal with on a regular basis," he says.
Tuesday, March 08, 2016
Judge John Gleeson invents and issues a "federal certificate of rehabilitation"
Thanks to this post at the Collateral Consequences Resource Center, I see that US District Judge John Gleeson has issued yet another remarkable opinion concerning the collateral consequences of a federal criminal conviction and what he thinks he can do as a federal judge in response. Here is how the 33-page opinion in Doe v. US, No. 15-MC-1174 (EDNY March 7, 2016)(available here) gets started:
On June 23, 2015, Jane Doe moved to expunge a now thirteen-year-old fraud conviction due to its adverse impact on her ability to work. The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Discipline Summaries. In other words, the conviction is visible to a prospective employer both as the result of a criminal background check and upon examination of her nursing license. Numerous employers have denied Doe a job because of her conviction. On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record. Despite these obstacles, Doe has found work at a few nursing companies, and she currently runs her own business as a house cleaner. Doe’s two children help to support her, and during periods of unemployment, her parents have also assisted her financially.
The government opposes Doe’s motion, contending that federal district courts do not have subject matter jurisdiction to expunge a conviction on equitable grounds. The Second Circuit has ruled, however, that “[t]he application of ancillary jurisdiction in [expungement] case[s] is proper.” U.S. v. Schnitzer, 567 F.2d 536, 538 (1977), cert. denied, 435 U.S. 907 (1978). Accordingly, I have weighed the equities in this case, which are grounded in my understanding of Doe’s criminal conviction and sentence; I was the judge who presided over her jury trial and imposed punishment.
I conclude that while Doe has struggled considerably as a result of her conviction, her situation does not amount to the “extreme circumstances” that merit expungement. See id. at 539. That said, I had no intention to sentence her to the unending hardship she has endured in the job market. I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated. Her conviction makes her no different than any other nursing applicant. In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing. She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation. As explained below, this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.
Monday, March 07, 2016
Extended discussion of sex offender registries as life sentences for juveniles
The new issue of The New Yorker has this very lengthy article authored by Sarah Stillman titled "The List: When juveniles are found guilty of sexual misconduct, the sex-offender registry can be a life sentence." I recommend the piece in full, and here are just a few snippets:
Kids who sexually harm other kids seldom target strangers. A very small number have committed violent rapes. More typical is the crime for which Josh Gravens, of Abilene, Texas, was sent away, more than a decade ago, at the age of thirteen. Gravens was twelve when his mother learned that he had inappropriately touched his eight-year-old sister on two occasions; she sought help from a Christian counselling center, and a staffer there was legally obliged to inform the police. Gravens was arrested, placed on the public registry, and sent to juvenile detention for nearly four years. Now, at twenty-nine, he’s become a leading figure in the movement to strike juveniles from the registry and to challenge broader restrictions that he believes are ineffectual. He has counselled more than a hundred youths who are on public registries, some as young as nine. He says that their experiences routinely mirror his own: “Homelessness; getting fired from jobs; taking jobs below minimum wage, with predatory employers; not being able to provide for your kids; losing your kids; relationship problems; deep inner problems connecting with people; deep depression and hopelessness; this fear of your own name; the terror of being Googled.”
Often, juvenile defendants aren’t seen as juveniles before the law. At the age of thirteen, Moroni Nuttall was charged as an adult, in Montana, for sexual misconduct with relatives; after pleading guilty, he was sentenced to forty years in prison, thirty-six of which were suspended, and placed on a lifetime sex-offender registry. In detention, the teen-ager was sexually assaulted and physically abused. Upon his release, his mother, Heidi, went online in search of guidance. “I’m trying to be hopeful,” she wrote on an online bulletin board, but “I wonder if he even stands a chance.”
Last fall, she contacted a national group called Women Against Registry, joining the ranks of mothers who are calling into question what a previous group of parents, those of victimized children, fought hard to achieve. Recently, common ground between the two groups has emerged. Many politicians still won’t go near the issue, but a growing number of parents — along with legal advocates, scholars, and even law-enforcement officials — are beginning to ask whether the registry is truly serving the children whom it was designed to protect.
If the sex-offender registry is a modern development, the impulse behind it — to prevent crimes by keeping tabs on “bad actors” — is not. In 1937, after the sexualized murders of several young girls in New York, Mayor Fiorello LaGuardia called for the police to keep a secret list of “all known degenerates.” A decade later, California built the first database of sex offenders, for private use by the police. But the practice of regulation took off only in the nineteen-nineties, when a tragedy changed the public’s sense of the stakes involved.
Thursday, March 03, 2016
Has the federal Adam Walsh Act been a success and should it be reauthorized?
The question in the title of this post is prompted by this recent press release coming from the office of Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, which is titled "Grassley Introduces Bill to Aid States, Public in Tracking Sex Offenders." Here is how it begins:
Senate Judiciary Committee Chairman Chuck Grassley today introduced legislation to assist states in preventing future abuses by registered sex offenders. The Adam Walsh Child Protection and Safety Act Reauthorization helps to improve tracking of sex offenders through federal support of state registries and dedicated resources to target offenders who fail to comply with registration requirements.
“Preventing sex crimes, especially by known offenders, requires a team effort by law enforcement at every level. Congress has passed laws to promote a unified approach to sex offender registration and notification. This bill will help to ensure that our state and local law enforcement officials continue to have the federal resources and assistance they need to successfully track offenders with a history of crimes against children,” Grassley said.
The Adam Walsh Child Protection and Safety Act of 2006 established nationwide notification and registration standards for convicted sex offenders to bolster information sharing between law enforcement agencies and increase public safety through greater awareness. Grassley’s bill reauthorizes key programs in the 2006 act to help states meet the national standards and locate offenders who fail to properly register or periodically update their information as the law requires.
Specifically, Grassley’s bill reauthorizes the Sex Offender Management Assistance Program, a federal grant program that assists state and local law enforcement agencies in their efforts to improve sex offender registry systems and information sharing capabilities. The bill also authorizes resources for the U.S. Marshals Service to aid state and local law enforcement in the location and apprehension of sex offenders who fail to comply with registration requirements.
The Adam Walsh Child Protection and Safety Act is named for a six-year-old Florida boy who was kidnapped and murdered in 1981. Adam’s father, John Walsh, worked closely with Congress to develop the 2006 law and the reauthorization that was introduced today. Cosponsors of the bill include senators Chuck Schumer (D-N.Y.), Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif.).
Candidly, I am not entirely sure what would be the best metrics for judging the "success" of the Adam Walsh Act, and perhaps that should be the question in the title of this post. So, dear readers, I would be eager to hear thoughts both on how we ought to assess the success of the AWA and also on whether it ought to be reauthorized.
March 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (14)
Friday, February 19, 2016
"Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of a Conviction"
The title of this post is the title of this new paper by Heather Garretson now available via SSRN. Here is the abstract:
Mass incarceration in America is creating an employment paradox that is the result of three facts: an estimated 65 million Americans have a criminal record, a criminal record significantly impairs job opportunities, and a job is a critical component of living a crime-free life. This paradox is perpetuated by thousands of legal and administrative barriers to employment and by employers’ unwillingness to hire someone with a criminal record.
States have recently started addressing the employment paradox with legislation. This legislation authorizes an administrative relief mechanism — often a certificate of some kind — that is intended to lift employment barriers and encourage employers to consider applicants with a criminal record. Such legislation is on the rise: of the ten states that have certificate legislation, eight passed such legislation in the last five years. This passage comes without an understanding of the impact of certificates. The accessibility and relevance of certificates to employment has — until now — been assumed, but not examined.
New York State has the oldest and most robust certificate system, and is a model for much of the recent certificate legislation. This paper contains the first comprehensive research on New York’s certificates. The research asks whether New York’s certificates are accessible and relevant to employment. It combines statutory analysis with qualitative research. It is a study of how certificate legislation is supposed to work — and how it actually does. It examines a statutory scheme that is recently replicated but empirically empty. Through interviews with judges, people with certificates or those eligible but without one, attorneys, current and former probation officials, service providers, and advocates, this paper provides insights into the use of certificates, their challenges, and examines how legislating more of the same can effectively address the employment paradox.
Tuesday, February 09, 2016
Prez Obama signs into law the "International Megan's Law," and group immediately files suit against passport scarlet letter requirement
As reported in this AP piece, headlined "Sex offenders challenge new federal passports law," over the last 24 hours President Obama signed a somewhat controversial federal sex offender law and a group has filed suit to block part of its mandates. Here are the basics:
A civil rights group has filed a lawsuit challenging a law that will require sex offenders to be identified on their passports.
President Obama signed the International Megan's Law bill into law on Monday following Congress passing the bill last week. The California Reform Sex Offender Laws filed the lawsuit in U.S. District Court in San Francisco, challenging the laws, which requires the Secretary of State to add "unique identifiers" to the passports of all registered sex offenders.
Passports today are used as a primary form of identification as well for entry into a foreign country. A passport symbol that identifies an individual as a registered sex offender could place at significant risk that person as well as others traveling with them, including family members and business colleagues, the lawsuit says.
This page on the site of the California Reform Sex Offender Laws organization provides these additional details about the suit:
The lawsuit will be filed in U.S. District Court, San Francisco, on behalf of four registered citizens. The lawsuit alleges that International Megan’s Law violates several provisions in the U.S. Constitution including the First, Fifth and Fourteenth Amendment, as well as the equal protection and ex facto clauses. Subsequent to filing of the lawsuit, an application for a Preliminary Injunction will be filed which, if granted, would stop the law from being implemented.
A helpful reader emailed me a copy of the 27-page complaint in this case, and I have provided it for downloading here: Download Complaint filed against IML Feb 2016
Monday, February 08, 2016
Notable battles in Texas over local sex offender residency restrictions in small towns
A helpful reader alerted me to this interesting new AP article headlined "More Than 20 Texas Town Repeal Sex Offender Residency Law," which reports that a "broad legal challenge has led more than 20 towns in Texas to ease restrictions over the last few months on where sex offenders can live instead of fight a costly battle in court." Here is more:
While other states, including neighboring Oklahoma, continue to push offenders away from some neighborhoods, about 45 Texas towns received letters in November from the group Texas Voices for Reason and Justice demanding they repeal residency restrictions. The nonprofit, which is critical of sex offender laws it considers ineffective, also has sued 14 towns and has a powerful ally — the state attorney general's office. "We advocate an individual assessment on a case-by-case basis to determine if someone is a threat to the community," said Richard Gladden, an attorney for the group. "The myth that people who commit sex offenses just generally are unable to control their sexual conduct is just that, a myth."
At issue is how Texas' small towns are differentiated from larger ones. Communities with fewer than 5,000 people are "general law" towns, which can't adopt an ordinance that the Legislature hasn't permitted. Dozens of these smaller communities have restricted where sex offenders can live — usually with the purpose of keeping them away from schools and other places children gather — but only later learned they've run afoul of state rules. "Unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live," according to a 2007 opinion signed by then-AG Greg Abbott, who's now Texas governor. Larger cities fall under "home rule," which means they have "a constitutional right of self-government," Abbott wrote.
But the Texas Municipal League, which provides support services and lobbies on behalf of cities, is pushing for legislative action that reverses Abbott's decision. "It's new where a general-law city has had its authority taken away by an attorney general's opinion," executive director Bennett Sandlin said.
The state allows leaders in general law towns to fashion municipal rules for "the good government, peace or order of the municipality," Sandlin said, such as zoning and noise control laws. But state officials can step in when local laws overreach....
Krum Mayor Ronald Harris Jr. said litigation prevents him from talking about whether his town will repeal its law, but he criticized the Legislature for not acting on behalf of small-town Texas. "They're saying that we as a small town don't have a right to have an ordinance to protect our children and our residents, but larger towns do," Harris said.
The city manager of Alvarado, which is south of Fort Worth, has told WFAA-TV in Dallas that although residents expressed concern about repealing the law, they know valuable town money could evaporate under the weight of a lawsuit. "They're disappointed that we're not able to regulate our own town," said Clint Davis, who did not respond to a message left by The Associated Press for comment....
Gladden argues myriad laws aren't necessarily benefiting public safety. In many cases, he said, an innocent "Romeo and Juliet relationship" can result in a young man being prosecuted for having sex with a minor and labeled a sex offender for the rest of his life. Meanwhile, federal statistics show the overwhelming number of sex abuse cases involving children are perpetrated by a family member or friend of the family, and not an anonymous stranger, he said. "Obviously, people are concerned about their kids and sometimes people are so overwhelmed by their natural instinct to protect their children that they don't necessarily use their heads and see what works and doesn't work," Gladden said.
But Sandlin argues the residency restrictions are common-sense measures to protect children and don't amount to an unwarranted hardship, as some would claim, because Census data shows more than 90 percent of land in Texas is outside incorporated cities. "Cities are dense urban areas where it makes sense to regulate where sex offenders live," Sandlin said.
I have long considered political and legal disputes over local sex offender residency restrictions to be among the most interesting and dynamic criminal justice arenas for debating what might be called "local federalism." But I am not aware of any other state in which certain localities were allowed to enact sex offender residency restrictions and others were not, and I suppose this story is just still further proof that Texas often has its own unique approach to justice.
February 8, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)
Thursday, February 04, 2016
Detailing shrinking number of states still denying federal benefits to former drug felons
The Marshall Project has this intriguing new piece on the modern reality and reform of collateral consequences headlined "Six States Where Felons Can’t Get Food Stamps: Few holdouts remain, as drug-war-era bans on benefits are lifted." Here are the details:
For almost two decades, Alabama residents convicted of a drug-related felony were barred for life from receiving food stamps or welfare payments. Starting this month, the ban will officially be lifted.
Alabama is not the only state that is backing away from the ban, which was established in 1996 under President Bill Clinton’s welfare reform law and blocks only drug offenders from receiving assistance, not any other felons.
Eighteen states have completely abandoned the federal prohibition on drug offenders receiving Supplemental Nutrition Assistance Program (SNAP) benefits, or food stamps. Twenty-six other states have partly eased those restrictions, often by providing the benefits only if the recipient complies with parole, does not commit a second offense, enrolls in treatment, etc. At least three more states — Georgia, Nebraska, and Indiana — are now considering similar reforms. Only six states continue to fully enforce the War on Drugs-era ban. ...
States have been somewhat less willing to lift the ban on drug offenders receiving Temporary Assistance to Needy Families (TANF), otherwise known as welfare. Thirteen states continue to fully prohibit anyone with a drug-related conviction from getting welfare benefits, and 23 others maintain a partial ban.
Unlike food stamps, which are paid for in full by the federal government, welfare is partly funded by the states. That means it is significantly more expensive for states to expand access to welfare, which may be part of the reason this ban has been slower to fall.
Wednesday, February 03, 2016
"Do sex offenders deserve a scarlet letter on their passport?"
The question in the title of this post is the headline of this Los Angeles Times editorial. Here is how it starts:
After rousing themselves from the 30-plus-year bad trip that was the war on drugs — or rather, the war on drug users — many Americans in and out of elected office looked around for someone else to persecute. Someone, somewhere, must be so depraved and hateful that liberals and conservatives, Democrats and Republicans could join in common cause to vilify them.
They appear to have found their target: sex offenders. The current case in point is a congressional proposal to alert the nations of the world that particular U.S. citizens who have committed sex offenses against minors are planning to visit. Passports would be specially marked so that other countries could turn travelers away at the border because of old crimes for which they have already served their time in the U.S.
This vindictive bill has been wisely rejected numerous times in the past, but now it's heading to President Obama's desk. He should veto it.
Sex offenses against minors are particularly horrendous crimes. But when offenders have completed their sentences and periods of supervision, there is no more reason to continue hounding and harassing them than convicted murderers or drug traffickers, who don't bear scarlet letters on their passports.
But wait, some supporters argue, people who commit sex crimes against children are a special case. As soon as they've done it once, they'll want more, posing imminent danger to any underage person anywhere. Their front doors should be marked to warn trick-or-treaters. They should be banned from park benches.
This blatantly false argument thrives on ignorance. There are indeed mentally disordered sex offenders whose conditions make them extremely high risks to commit more crimes of the same variety. Some may target minors. But that is far different from saying that anyone convicted of a sex offense against a minor falls into that very narrow category. Corrections officials in California report that most sexual crimes committed by adults against minors occur among family members, and that the rate of recidivism is fairly low.
Prior related post:
Tuesday, February 02, 2016
"International Megan's Law" heading now to Prez Obama's desk
As reported in this dispatch from The Hill, the US House of Representatives "easily cleared legislation on Monday to expand efforts within the Department of Homeland Security to track registered child sex offenders’ travel plans as a means of combatting human trafficking." Here is more about a bill often called an international Megans Law:
The measure, passed by voice vote, would codify the Department of Homeland Security’s (DHS) “Operation Angel Watch” program that determines whether countries should be notified of sex offenders’ travel. Under the legislation, sex offenders would be required to report to law enforcement when they plan to travel internationally. Sex offenders who fail to comply would face up to ten years in prison.
In addition, the State Department will be obligated to create a unique identifier for child sex offenders’ passports. Lawmakers said the provisions would help prevent sex offenders from trying to break the law undetected. “Child predators thrive on secrecy,” said Rep. Chris Smith (R-N.J.), the bill’s author.
The House previously passed a version of the bill last January, and the Senate later approved it with amendments by unanimous consent in December. Congress last year approved legislation to create a fund for victims of sex trafficking and give prioritize states for federal grants if they establish “safe harbor” laws for child victims of trafficking.
Last month here at The Volokh Conspirary, David Post expressed concerns about this legislation. The title of the post reveals the basic nature of his concerns: "The yellow star, the scarlet letter, and ‘International Megan’s Law’." The Marshall Project has this new piece echoing similar themes under the headline "Congress Acts to Mark Passports of Sex Offenders: Target of legislation is sex-traffickers; critics call it a ‘scarlet letter’."
Saturday, January 02, 2016
"Throwaway Children: The Tragic Consequences of a False Narrative"
The title of this post is the title of this notable new paper authored by Catherine Carpenter now available via SSRN. Here is the abstract:
Truth be told, we are afraid for our children and we are afraid of our children. The intersection of these disparate thoughts has produced a perfect storm. We have created increasingly harsh sex offender registration schemes to protect our children from sexual abuse. At the same time, fear of our children ensnares and punishes them under the very same laws that were designed to protect them. Yet, what compels action is premised on a false narrative that includes flawed studies on recidivism rates and misguided case decisions that embraced these findings.
In this article, I explore the inherently unfair and deeply flawed practice of mandatory lifetime registration for children who commit sex offenses. Examination reveals two fallacies in a system that condemns children to lifetime monitoring: the breadth of its ensnarement, and the presumption of a child’s continued sexual predatory behavior. Fueled by emotional rhetoric, both are tightly bound in a fundamentally false narrative that is unnecessary and wholly damaging for the child registrant.
The utility of an overly-simplified registration scheme comes with a hefty price tag: the acknowledgement that mandatory lifetime registration captures and shatters the lives of many non-dangerous children. It is a price tag we should no longer be willing to bear. In the face of overwhelming statistical evidence to the contrary, we must commit to changing the false narrative that children who commit sex offenses are presumed to become sexually dangerous adults. We must commit to replacing it with a narrative that acknowledges that recidivism rates are low and that mandatory lifetime registration is both unnecessary and devastating.
Wednesday, December 30, 2015
How can a sex offender prove he is no longer a threat ... three decades after molesting a child?
The question in the title of this post is prompted by this local article about a state court ruling from New Hampshire headlined "Judge rules convicted sex offender must remain on registry until he can prove he is no longer a threat." Here is the interesting backstory:
A Manchester sex offender convicted 28 years ago will remain a lifetime registrant unless and until he proves he is no longer a threat, which, at least for now, he can ask to do at any time, a judge in Concord has ruled. The decision, issued last week and distributed Monday by Merrimack County Superior Court, caps the latest phase in a years-long campaign by the man, identified by the court under the pseudonym John Doe, to become eligible for public housing.
Doe’s real name is Norman St. Hilaire. He has long pressed to be removed from the state’s public registry of sex offenders, arguing that his conviction predated its creation. More recently, though, he asked the court to table that question and instead recognize that a recent state Supreme Court decision effectively lifts his lifetime status -- a smaller change, but one that could be enough to secure him housing eligibility.
In his new ruling, Judge Richard McNamara quickly rejected the request, writing that the higher court’s decision allows St. Hilaire to change his status only if and when he proves he is no longer a threat. “If he never succeeds in showing that he is not a danger to the public, he must continue to register,” McNamara wrote. “It follows that the only accurate way to describe his status at the current time is that of a lifetime registrant.”
St. Hilaire is currently a Tier III “lifetime” offender, the state’s highest sex offender category. His attorneys had claimed he should no longer be classified as such because he now has the chance to petition to get off the registry, a privilege unavailable to Tier III offenders convicted after the registry’s creation in the early 1990s. Tier III offenders convicted today have no opportunities to get off the list.
St. Hilaire’s case was scheduled for an evidentiary hearing in November, but he backed out shortly before, citing his victim’s request to testify. She and victims advocates suspect he was worried she would easily derail the effort by describing the abuse and possibly disclosing new allegations (though the statute of limitations on new charges involving her has passed).
McNamara’s ruling was only a partial win for state prosecutors, who not only objected to St. Hilaire’s petition but also asked that he be barred from bringing another request for five years. Like the Supreme Court, McNamara deferred to the Legislature on that question, saying it’s their responsibility to set parameters for how frequent the reviews should be.
Several state lawmakers are proposing new parameters, and hearings on their legislation, sponsored by Republican Senate Majority Leader Jeb Bradley and two dozen others, are expected to begin next month. The bill prohibits offenders from getting off the list if they have been convicted of serious crimes since their original convictions. Among other things, it also requires that victims get the chance to address the court, and that offenders whose petitions have been denied wait five years before petitioning again.
Amanda Grady Sexton, director of public policy for the New Hampshire Coalition Against Domestic and Sexual Violence, said the proposed language mirrors the requirements in place for lower tiered offenders who want to be removed from the registry. Sexton called McNamara’s ruling “a big win for victims.”...
In arguing earlier this month for the five-year ban, Assistant Attorney General Dianne Martin said the victim, now in her 40s and living out of state, “had to go through preparation for this case, and she had to relive all the events that she suffered as a child.” She should not have to constantly wonder if and when St. Hilaire will bring another petition, Martin said.
Chapman countered that St. Hilaire, who is 66 and has physical disabilities, had no plans to request a hearing, but hoped to reserve the right to do so in case his physical condition deteriorates further. St. Hilaire has not been present for the court proceedings. He was arrested last month and charged with failure to register, a felony. Police have said he created a Facebook account but never reported it, as required. He is out on bail and was scheduled for an arraignment at the end of this month.
St. Hilaire was convicted three decades ago of molesting the woman when she was a young teen in Hooksett, once in 1983 at Lambert Park and again the next year at their home, where the woman’s mother and three other children also lived. He was placed on probation and ordered to attend sex offender counseling, which he did weekly for two years. In an interview last month, the victim said the abuse was far more pervasive than the convictions reflected. She said St. Hilaire sexually abused her numerous times over a decade, starting as a toddler and continuing into adolescence.
December 30, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (11)
Sunday, December 20, 2015
Michigan Supreme Court takes up punishing questions about lifetime sex offender registration
As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago." Here is more about the case and context:
The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.
In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”
The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.
The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:
The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.
The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.
December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)
Tuesday, December 15, 2015
Examining the crimmigration connections between sentencing and deportation
An important and timely new and growing speciality in the legal academy is "crimmigration," a label used to describe and analyze the intersections of criminal law and immigration law. In that vein, I just came across this notable new paper by Jason Cade available via SSRN titled "Return of the JRAD," which looks closely at the particular intersection of sentencing decision-making and deportation consequences. Here is the abstract:
Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar on August 14, 2015, he recommended that the government not deport Mr. Aguilar, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief. As a result, the immigration system, as it works today, is in deep tension with the principle that under a humane system of justice the penalty should fit the crime.
Judge Weinstein’s sentencing order in Aguilar points the way to an important reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history. A sentencing judge’s decision to recommend against deportation in criminal cases offers immigration authorities an efficient, reliable, and cost-effective means of assessing a noncitizen’s positive and negative equities and determining whether removal is an appropriate part of the total penalty for the noncitizen’s transgression. In short, a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions. This essay makes the case that immigration authorities could rely on such recommendations -- as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications) -- as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation. To be sure, in some cases, that presumption should be overcome, particularly when the government can establish the noncitizen’s dangerousness or otherwise demonstrate social undesirability. But deportation should be the exception, not the rule, in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction.
Sunday, December 13, 2015
Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification
A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts:
We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q. The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence. In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree. For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.
Thursday, December 10, 2015
Shouldn't the Black Lives Matter movement focus a lot more on ensuring black voters are able to matter?
The question in the title of this post reflects my reaction to two stories I came across this morning. First, as reported here, readers of The Crime Report in the site's "fifth annual survey of the most significant criminal justice news stories and developments ... [chose] the growing political profile of Black Lives Matter and related organizations as the major development of 2015." Second, this new Intercept article reports that within "Florida’s black population, the rate of disenfranchisement is high, with nearly a quarter of African-Americans prohibited from voting." This second piece is headlined "Thanks to Republicans, Nearly a Quarter of Florida's Black Citizens Can't Vote," and here is an excerpt:
Nationwide, nearly 6 million Americans are barred from voting due to felony convictions. Although most states restrict the voting rights of imprisoned felons, Iowa currently is the only one that joins Florida in imposing a lifelong disenfranchisement on ex-felons. Until three weeks ago, Kentucky also had such a ban, but on the Tuesday before Thanksgiving the state’s outgoing Democratic governor issued an executive order restoring the voting rights of 140,000 nonviolent ex-felons in the state. The incoming Republican governor has signaled that he may uphold the order.
Meanwhile, the scale of the problem in Florida appears to be growing. The 1.5 million figure dates from 2010; when Republican Gov. Rick Scott took office in 2011, he immediately rolled back a policy of his predecessor, Charlie Crist, who automatically restored the rights of many felony offenders who had completed their sentences. Scott introduced new rules requiring that people convicted of nonviolent felonies wait five years before they can apply to have their civil rights restored; those convicted of violent and certain more serious felonies must wait seven years to apply. Under Crist, tens of thousands of felons, on average, won back their right to vote each year. So far, Gov. Scott has restored the rights of just 1,866 ex-felons, while tens of thousands of former inmates are released each year, stripped of their voting rights. As the Scott administration has choked off the one existing channel for former felons seeking suffrage, anecdotal evidence suggests that wait times are getting longer for those petitioning the governor to restore their civil rights. ...
More than 50 years after Congress passed the Voting Rights Act of 1965, Florida is still a place where in a typical public setting — a grocery store or a city block — a sizable portion of the citizens you walk among are likely to be quietly enduring the state’s lifelong disenfranchisement. In neighborhoods like heavily black Parramore, an even larger number of residents will be unable to vote. And Walker says that in his congregation, those who can vote are outnumbered by those who cannot.
“We’ve had older clients call us and say I want to be able to vote again before I die,” said Mathew Higbee, the founding partner of Higbee & Associates, a law firm that helps ex-felons restore their civil rights. “And we say, ‘Right now it’s going to be a six- to 10-year wait before they’ll even look at it,’ and the person says: ‘I’m not sure I’m going to live that long so I’m not even going to try.’”
The Scott administration has asserted that the governor uses the right to vote as an incentive to encourage former offenders to stay out of trouble. “Gov. Scott feels that convicted felons need to have an opportunity to show they can be law-abiding members of society before those rights are restored,” a spokesperson said during the 2012 election season. Yet ex-felons who have stayed clear of the law for more than a decade told me that their petitions to Florida’s clemency board have gone unanswered or have become stalled in a bewildering bureaucracy plagued with a backlog of nearly 11,000 pending applications for civil rights restoration. So far this year, the state has approved only 315 applications. The former felons I spoke with hold little faith in the clemency process. And, perhaps more than anything else, they express a feeling of having been being forgotten by virtually every element of political life in America. (Gov. Scott’s office did not respond to a list of emailed questions.)
I view the 2008 and 2012 election results as dramatic proof that minority populations garner significant political power and can have maximum political and social impact when they turn out in large numbers to vote. As the title of this post suggests, I think the BLM movemen could and would have the most long-term political and social impact if it were to aggressively challenge felon disenfranchisement laws and other formal and informal barriers to people of color voting in very large numbers in every election.
Monday, December 07, 2015
Justice Thomas (with Justice Scalia) dissents from cert denial in Second Amendment challenge to local assault weapon ban
After SCOTUS released on Friday its most list of certiorari grants (including a sentencing case as noted here), the highlight of today's long order list of denials of certiorari comes in the form of this dissent authored by Justice Thomas and joined by Justice Scalia. The dissent from the denial of certiorari in Friedman v. City of Highland Park, Illinois, begins and ends this way (with a few cites removed):
“[O]ur central holding in” District of Columbia v. Heller, 554 U. S. 570 (2008), was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. Chicago, 561 U. S. 742, 780 (2010) (plurality opinion). And in McDonald, we recognized that the Second Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Despite these holdings, several Courts of Appeals— including the Court of Appeals for the Seventh Circuit in the decision below — have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410–412 (2015). Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case....
[The Seventh Circuit's] analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose — regardless of whether alternatives exist. 554 U. S., at 627–629. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624–625. The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F.3d, at 415, n.3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. See 784 F. 3d, at 411–412. The court conceded that handguns — not “assault weapons” — “are responsible for the vast majority of gun violence in the United States.” Id., at 409. Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.” Id., at 412. Heller, however, forbids subjecting the Second Amendment’s “core protection . . . to a freestanding ‘interest-balancing’ approach.” Heller, supra, at 634. This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.
The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.... There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.
As I have noted in prior posts, the Second Amendment has been relegated to status as a "second-class right" primarily due to dicta in Heller suggesting that any person who ever commits a crime can and does forever forfeit the "personal right to keep and bear arms for lawful purposes." Lower courts since Heller have consistently upheld federal prosecution and severe sentencing of persons who long ago committed nonviolent crimes simply for much later seeking to "keep and bear arms for lawful purposes." Not a single Justice has said a peep about this extreme restriction on Second Amendment rights even though, to my knowledge, few have ever seriously argued that any other right enumerated in the Bill of Rights is or should be subject to permanent forfeiture forever once a person is adjudicated guilty of a crime.
The significant and enduring pattern of courts upholding laws criminalizing persons with criminal records for gun possession, especially in a nation in which it seems more than a 25% of adults have some kind of criminal record, is what I think truly relegates the Second Amendment to a second-class right. But, for obviously reasons, I am not expecting any SCOTUS Justices to note anytime soon that a mere local ban on possessing a certain type of firearm is far less consequential than the current federal ban on tens of millions of Americans ever being able to possess any firearm even for self-defense in their home.
Tuesday, November 24, 2015
Outgoing Kentucky Gov restores voting rights to many thousands of nonviolent felons
As reported in this AP article, the "outgoing Democratic governor of Kentucky signed an executive order Tuesday to restore the right to vote and hold public office to thousands of non-violent felons who've served out their sentences." Here is more:
The order from Gov. Steve Beshear — who leaves office next month — does not include those convicted of violent crimes, sex offenses, bribery or treason. Kentucky already restores voting rights to some nonviolent convicted felons, but the felon must apply to the governor's office, which approves them on a case by case basis. This new order automatically restores voting rights to convicted felons who meet certain criteria upon their release. Those who have already been released can fill out a form on the state Department of Corrections' website.
"All of our society will be better off if we actively work to help rehabilitate those who have made a mistake," Beshear said. "And the more we do that, the more the entire society will benefit."
Kentucky was one of four states that did not automatically restore voting rights to felons once they completed all the terms of their sentences. About 180,000 in Kentucky have served their sentences yet remain banned from casting ballots. The Kentucky legislature has tried and failed numerous times to pass a bill to restore voting rights to felons. The Republican-controlled Senate would agree only if there was a five-year waiting period, which Democrats refused....
Democrats control state government until next month, when Republican Gov.-elect Matt Bevin takes office. Bevin could repeal Beshear's order or allow it to stand. Bevin spokeswoman Jessica Ditto said Bevin supports restoring voting rights to nonviolent offenders, but added he was not notified of Beshear's order until a few minutes before he announced it. "The Executive Order will be evaluated during the transition period," she said.
Republican State Rep. Jeff Hoover, the minority floor leader of the state House of Representatives, said he supports restoring voting rights to convicted felons but opposes Beshear's method of doing it. "It should be the role of the legislature, not one person, which should address these issues through legislative debate," Hoover said in a news release. "This is a prime example of this Governor following in the footsteps of President Obama and putting his own agenda above the people of Kentucky and the elected legislators who serve them."
Thursday, November 12, 2015
Split Ohio Supreme Court rejects constitutional challenge to registration requirement for 21-year-old who had consensual sex with 15-year-old
Any and all college guys in Ohio who may still be dating younger high school girls will want to know about the new Ohio Supreme Court opinion in Ohio v. Blankenship, No. 2015-Ohio-4624 (Nov. 12, 2015) (available here). Here is how the majority opinion gets started:
Appellant, Travis Blankenship, challenges as cruel and unusual punishment the sex-offender-registration and address-verification requirements imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging in unlawful sexual conduct with M.H., a 15-year-old, when he was 21. Because we hold that the Tier II registration requirements imposed upon him are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and to the community’s sense of justice, we affirm the judgment of the court of appeals.
The chief dissent gets started this way:
The framework within which an issue is presented can unduly influence the outcome. For example, if you ask a stadium full of people whether requiring a Tier II sex offender to comply with certain reporting requirements shocks their sense of justice, you are unlikely to receive a single affirmative response. But... but add that the offender was an adult male who had sex with a 15-year-old girl ...[and] add that the offender was a 21-year-old male, that the 15-year-old girl consented, and that the registration and address-verification requirements must be complied with every six months for 25 years, and now we are at the threshold. Many will see the consent as a mitigating factor, many will see the relatively modest age difference as a mitigating factor, and many will see the 25-year time period as unnecessarily long. As the majority notes, and I acknowledge, these potentially mitigating factors are not statutorily relevant, but they are nevertheless constitutionally relevant.
Assume further that the offender has been determined by a psychologist to have none of the characteristics of a sex offender and to have a low risk of reoffending. There would be many who would be shocked at the severity and length of the punishment, i.e., the reporting requirements. Assume all of the above and add that the offender could have received a sentence of up to 18 months, see R.C. 2929.14(A)(4), that he was sentenced to six months in prison (the shortest term possible), and that a judge released him after he had served a mere 12 days. Now the community’s sense of justice has been violated. Few would deem it appropriate to require a person who committed a crime that warranted a 12-day sentence to comply with reporting requirements every six months for the next 25 years.
The touchstone of federal cruel-and-unusual-punishment analysis is that the punishment must be proportional to the crime. Weems v. United States, 217 U.S. 349, 367 (1910). The case before us fails this standard.
November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)
Tennessee soon to become first state with animal abuser registry
As reported in this local article, headlined "TBI will soon post animal abuse offenders," the Volunteer State is soon to have animal abuse offenders subject to required on-line registration. Here are the details:
Come January 1, Tennessee will post online a list of animals abusers near you. It will be similar to a sex offender registry, and Tennessee will be the first to have a statewide site.
"Her hind legs were put into a pot of water. Boiling water," said Cindy Marx-Sanders as she held Molly the chihuahua. Molly was rescued from an abusive home. "She is exactly why we need an animal abuser registry," Marx-Sanders said.
Marx-Sanders was one of the lobbyists who helped make an animal abuser registry a reality. By January, the Tennessee Bureau of Investigation will have the statewide website up and running. It will be a registry open to the public with pictures of people convicted of felony animal cruelty.
A person convicted of hurting an animal would have their picture up for two years, but if convicted again, their picture would be up for five years.
State Rep. Darren Jernigan of Nashville was a sponsor. "We want to put it in one spot so someone in Memphis can't drive to Knoxville and get an animal if they're going to abuse it. It's going to be statewide," he said.
Angela Klein, with the Bartlett Animal Shelter, has seen her fair share of animal abuse. "Sometimes it can be pretty heart-breaking," she said Monday. She's glad to now have another resource to help combat abuse. "We can go online now and check to see if people are on that registry, and it will give us one more tool to help place animals into better homes," Klein said....
Marx-Sanders said it's a great start, but there's more that needs to be done. "It does need to be expanded to include state-level misdemeanors, which are just a little bit lower on the cruelty scale than the felony level, but is still neglect and cruelty."
Saturday, November 07, 2015
Split NC Supreme Court upholds state prohibition on sex offenders using social media available to kids
As reported in this local article, yesterday the "N.C. Supreme Court has upheld a state law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join." Here is more about the notable ruling:
In the split opinion issued Friday, the justices reversed an N.C. Court of Appeals ruling that found the 2008 law too broad and vague, and therefore unconstitutional. The challenge was brought by Lester Gerard Parkingham Jr., a registered sex offender in North Carolina, who faced additional charges after Durham police found a Facebook page he created under an assumed name.
The case raises questions about whether such laws prohibit sex offenders from participating in web-based forums, which have become virtual town squares, as they re-enter society. The four justices in the majority ruled that the “incidental burden imposed” upon convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”
Writing for the majority, Justice Robert Edmunds stated, “the General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors. For example, Edmunds wrote, the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.
Edmunds wrote that the law is meant to limit conduct and that it only incidentally affects speech. “The justification of the statute — protecting minors from registered sex offenders — is unrelated to any speech on a regulated site,” he wrote.
Emails and text messages aren’t restricted by the law. “Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.
Justice Robin Hudson dissented, and Justice Cheri Beasley joined her in a minority opinion describing the law as unconstitutionally vague. They contended that the law prohibits sex offenders from “communicating with others through many widely used commercial networking sites.” It also could restrict sex offenders from joining news sites and being able to use retailers such as Amazon....
In North Carolina, where 14,268 people are entered in the N.C. Sex Offender and Public Protection Registry database, civil liberty organizations have paid close attention to Packingham’s case. The 2008 restriction was part of a legislative package that N.C. Attorney General Roy Cooper advocated for years. Packingham argued that prohibiting him from those social media sites is a violation of his rights to “free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.”...
Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued several years ago that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search. The law defines a “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions and allows users to create pages to post information.
The full ruling in North Carolina v. Packingham, No. 366PA13 (N.C. Nov. 7, 2015), is available at this link. The majority opinion in this case explained why the court believed that the North Carolina statute being challlenged was more narrowly tailored than somewhat similar statutes struck down by federal courts in Indiana and Louisiana. But the dissent cites some recent US Supreme Court rulings to make the case that the NC statute is still not sufficiently limited to be compliant with the First Amendment.
Though I am never good at predicting whether and when the Supreme Court will take up an important criminal justice issue, I would not be at all surprised if the Justices show some interest in this case if (when?) the defendant were to seek certiorari.
Friday, November 06, 2015
SCOTUS grants review on federal/international sex offender registration issue
The big news from the US Supreme Court's order list this afternoon is the grant of review on another issue concerning the intersection of religious liberty and Obamacare requirements. But sentencing fans might be interested to see SCOTUS also took up a federal case involving sex offender registration laws: by granted cert on just question 1 in the case of Nichols v. United States, the Justices will consider later this Term "whether 42 U.S.C. $ 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals."
November 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)
Saturday, October 31, 2015
"Is Halloween Really More Dangerous for Kids?: A lack of evidence doesn’t stop cities from rounding up sexual offenders on the holiday."
The title of this post is the headline of this recent Marshall Project piece that seems fitting to spotlight on October 31. Here is an excerpt (with links from the original):
Despite research showing no evidence that children are at greater risk of experiencing sex abuse on Halloween than on any other day, states and localities around the country impose severe restrictions on registered sex offenders during the holiday.
Some, including parts of Virginia, Georgia, Delaware and Texas, require sex offenders on probation or parole report to designated locations. O thers, such as Missouri, Florida and Nevada, direct some offenders to post signs on their doors that say, “No candy or treats at this residence.” Broader restrictions in most states direct people on the registry to keep their lights off to deter trick-or-treaters and stay away from children in costumes in their neighborhood or at the local mall.
Before a 2014 ACLU complaint, the Plaquemines Parish Sheriffs Office in Louisiana required all registered sex offenders post this sign on their front lawn on Halloween.
For more than six years, the Gaston County Sheriff’s Department in North Carolina has ordered sex offenders who are still on parole to report to the courthouse on Halloween, said Capt. Mike Radford, who helps to oversee the program. “We keep them in one big courtroom and call people in and out to do random drug testing and vehicle searches, and we have guest speakers,” he said. “If they don’t show up, we pick them up and arrest them.” Radford said he doesn’t know why the program began but believes it is because Halloween presents “easy accessibility to a minor.”
The laws began to proliferate nationwide in the 1990s, when the fear of a predator who lures young children into his home with candy arose amid other concerns, such as poisoned treats and razor blades in apples. “Going back decades, there is this sense that there are these dangers to children on Halloween,” said Jill Levenson, a clinical social worker and associate professor at Barry University in Florida.
But studies have shown that more than 90 percent of children who are sexually abused know their abuser, who is often a family member or close acquaintance. A Bureau of Justice Statistics report showed that only 7 percent of those who sexually abused juveniles were strangers to their victims.
Levenson co-authored a study that examined the Halloween effect by looking at sex crimes against children between 1997 to 2005. The researchers analyzed more than 67,000 crimes in which the perpetrators were strangers, acquaintances, and neighbors.
In a year-by-year comparison that zeroed in on Halloween, the researchers found no variation in number or types of crimes committed, even as more laws were added. But that’s not the message families hear in the weeks before Oct. 31, when articles with headlines such as “Homes to Watch Out for This Halloween,”which run the addresses of local registered sex offenders, are common.
Monday, October 19, 2015
New York Times editorial rightly frames debate over federal judges' expungement power
Regular readers may recall this recent post highlighting the interesting (and hip?) legal issue arising in federal court lately concerning the inherent power of federal judges to expunge a federal conviction. This effective New York Times editorial, headlined "How to Get Around a Criminal Record," spotlights some of the unfortunate reasons this legal issue is now coming up for debate. Here are excerpts:
In May, a federal judge in Brooklyn took the extraordinary step of expunging the conviction of a woman he had sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme that netted her $2,500.... The move was significant because there is no federal law that allows for expungement — the permanent sealing of a criminal record to the general public....
Some 70 million to 100 million people in the United States — more than a quarter of all adults — have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges — from voting, employment and housing to business licensing and parental rights. Some of these collateral consequences make sense — like preventing people convicted of molesting children from working in schools. But many have no relation at all to the original offense.
The woman whose record Judge Gleeson expunged was hired repeatedly for social-work or health-care jobs, and then fired after employers ran a background check. As the judge wrote, it is “random and senseless” that her “ancient and minor offense should disqualify her from work as a home health aide.”
The federal government lags far behind in reducing the burdens of a conviction. About half the states allow some convictions to be expunged; almost all allow expungement for arrest records and other non-conviction records. Some expungements are automatic, while others require a petition to the court. Of course, expungement is not a cure-all. The vast majority of employers now run background checks, many using error-strewn databases that often fail to delete sealed records.
A better, increasingly popular approach is a “certificate of rehabilitation,” which state judges issue as a way of removing certain restrictions and encouraging employers and others to take a chance on someone despite his or her record.
Another solution is the executive pardon, which restores rights lost after a conviction. Pardons were once a common method of relief from injustice, and some state governors still use it vigorously. Gov. Jack Markell of Delaware has issued almost 1,600 pardons in six years. But President Obama, like his recent predecessors, has almost entirely abandoned the practice.
Mr. Obama’s former attorney general, Eric Holder, understood the importance of giving people with criminal records a better chance at finding jobs and regaining their foothold in society. And yet the Justice Department is reflexively fighting Judge Gleeson’s expungement order, calling it “judicial editing of history.”
If the White House or Congress made a real effort to alleviate the crippling consequences of criminal records — by increasing pardons, or passing laws to give courts more options to lessen or remove those burdens — there would be no need for judges to play the role of editors.
Some prior related posts:
- US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
- DOJ indicating it will appeal Judge Glesson's remarkable federal expungement order
- "Expunging America's Rap Sheet in the Information Age"
- "Clean Slate: Expanding Expungements & Pardons For Non-Violent Federal Offenders"
- "Administering Justice: Removing Statutory Barriers to Reentry"
- Federal judicial power to expunge old convictions getting lots of (hip?) attention in EDNY
October 19, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Sunday, October 18, 2015
Sex offenders in San Diego sue over strict Halloween rules
As reported in this Los Angeles Times article, headlined "Halloween rules to protect children violate sex offenders' rights, lawyer says," another season of spooks and sex offender restrictions is bringing another round of suits. Here are the basics:
As a safety precaution, state authorities have imposed Halloween restrictions on sex offender parolees, barring them from putting up decorations or passing out treats. And in San Diego County, they are required to post signs outside their homes discouraging trick-or-treaters from approaching.
A lawyer and activist from Santa Maria, Calif., wants to change that. She filed a lawsuit last week in San Diego federal court on behalf of an unidentified Chula Vista man, accusing the state of violating his rights and those of other registered sex offenders.
"For them, Halloween truly is a night of horrors," said Janice Bellucci, who also is president and founder of California Reform Sex Offender Laws. The organization is "dedicated to protecting the U.S. Constitution by restoring the civil rights of individuals required to register as sex offenders in California," according to court documents.
Bellucci said many parolees don't know how officers are going to interpret the special conditions on Halloween night. She said she's received calls from people with concerns that they might be violating parole if they turn on the porch light for a visiting relative or if they post a pumpkin drawing on the refrigerator created by one of their own children. "They don't know truly what is required of them," Bellucci said....
For more than 20 years, the department has run what it calls Operation Boo, a statewide Halloween night event in which parole officers and other law enforcement conduct compliance checks on known sex offenders. The goal is to make sure that sex offender registrants aren't attracting children to their homes....
According to the lawsuit, requiring parolees to post signs on their front doors encourages speech in violation of their 1st Amendment rights. It also invites harm to themselves, the people they live with and their property by forcing parolees to "advertise" their status as registered sex offenders.
Bellucci contends in the suit that state authorities enforce the Halloween policy in an "arbitrary and unreasonable manner," taking no account of the age of a sex offender's conviction or whether it involved a crime against a child.... Bellucci has filed similar lawsuits against the cities of Simi Valley and Orange over Halloween restrictions on registered sex offenders — "registered citizens," as she prefers to call them — including mandatory sign requirements. She said officials repealed the laws and the suits were dismissed.
Last year, parole agents arrested 62 of the 1,294 sex offender parolees who were contacted during Halloween night compliance sweeps throughout the state. The arrests were on charges of possession of child pornography, narcotics, weapons and other parole violations, state authorities said.
Wednesday, October 14, 2015
Charles Koch Institute produces great set of short videos urging crimnal justice reforms
I am really intrigued, and really impressed, by this new set of one-minute videos created by the the Charles Koch Institute under the banner "Criminal Justice and Policing Reform Explainer." Here are the topics and links to the videos, and I have embedded the one on mandatory minimums below:
Friday, October 09, 2015
Highlighting who is now highlighting the inefficacy of sex offender registries
This new local Ohio article, headlined "Sex offender registries draw criticism from some unlikely sources," spotlights that some perhaps unexpected voices are advocating against sex offender registries. Here are excertps (with links from the source):
You might think that all advocates for rape victims would support the practice of forcing sex offenders to publicly register their addresses after their release from prison. But you would be mistaken.
Growing numbers of victim advocates and criminal justice researchers are among those who have concluded that sex offender registries are too costly and provide little or no protection to the public. "The registry gives the appearance that our community is safer, but we really question whether it lives up to that expectation," said Sondra Miller, president of the Cleveland Rape Crisis Center....
It's not surprising that defense attorneys oppose the registries, but therapists and victim's advocates also are among those calling for change.
"The biggest frustration we have with the registry is it feeds into the myths that the general public has about sexual assault," Miller said. "It feeds this stranger-danger mentality when we know it's such a small fraction of the sexual assaults that occur in our community." Miller said the registries give people a "false sense of security" that sex offenders can be easily identified and avoided, when that's not the case.
Tyffani Dent, a clinical director at the Abraxas Counseling Center and a psychologist who works with both victims and offenders, said registries spread law enforcement too thin. Deputies have to check in not only on repeat, violent offenders but also teenagers who sent illicit text messages to their girlfriends, and who pose little threat to their neighbors. "I want for victims to get justice," she said. "Unfortunately, registration the way it is now doesn't do what it's designed to do."
Several large-scale studies have shown that registries don't do much to prevent criminals from committing new crimes.
- A 2008 U.S. Department of Justice study concluded that "Megan's Law showed no demonstrable effect in reducing sexual re-offenses."
- A 2011 study from the University of Chicago found that "registered sex offenders have higher rates of recidivism" than those who did not have to register.
- Another study published in 2011 found that a registration requirement has a deterrent effect on sexual offenders, but the notification aspect of the registries leads to higher rates of offense because of the social and financial costs to the offender.
- A 2004 Canadian study found that "after 15 years, 73 percent of sexual offenders had not been charged with, or convicted of, another sexual offense."
Dent doesn't think the registry system should be abandoned entirely. Instead, she favors registering only the most dangerous offenders. That would free up resources for preventative measures and treatment, such as mental health therapy, which Dent said has been proven to reduce recidivism. In particular, Dent said cognitive behavioral therapies, which address the way people think and behave, have been proven to reduce recidivism among sex offenders....
Miller ... noted that victim's services and treatment programs are both underfunded, and could use some of the more than half a million dollars Cuyahoga County spends maintaining its registry. "It really is a question of where do we put our resources where we're going to have the maximum impact and I'm not sure the sex offender registry is where we're getting the most impact," Miller said.
This companion story to the one quoted above carries the headline "Sex offender says registry amounts to punishment for life." Here is how it starts:
Nearly three decades ago, Emil Basista was convicted of raping a 33-year-old woman. While serving time in prison, he was retroactively labeled as a sexual predator, a designation that requires him to report where he lives every 90 days to the sheriff's department. Basista, 66, is one of several thousand Ohioans who have tried to challenge the state's sexual offender registration requirements, contending that the publicly accessible registries amount to life-long punishment.
October 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)
Wednesday, September 30, 2015
Missouri Supreme Court considering constitutional challenge to lifetime sex offender registration for 14-year-old offender
As reported in this local article, headlined "Missouri’s juvenile sex offender registry challenged as unconstitutional," the top court in the Show Me state heard argument today on a notable constitutional question involve a juve sex offender. Here are the details:
A 14-year-old Missouri boy’s vicious sexual assault on his adult sister landed him in the juvenile justice system. But should it land him on the Missouri sex offender registry for the rest of his life?
That’s the question the Missouri Supreme Court is being asked to answer by attorneys for the St. Louis boy, identified in court documents as S.C.. The court heard oral arguments on the case Wednesday morning and took the matter under advisement.
Attorneys for S.C. argue that subjecting a juvenile to the same registration requirement imposed on adult sex offenders is cruel and unusual punishment, and it contradicts the goal of the juvenile justice system to “rehabilitate and reintegrate.” They say several studies show that juvenile sex offenders are no more likely to commit sex offenses as adults than other juveniles.
“Lifetime sex offender registration has no relationship to the goal of protecting society from re-offenders and yet imposes severe hardship on juvenile offenders by impairing their ability to rehabilitate and function as productive members of society,” according to documents filed by S.C.’s lawyers.
The Missouri Attorney General’s Office argues that S.C.’s appeal should be dismissed. They say that Missouri is following federal law in requiring certain juveniles to register as offenders, and federal appeals courts have upheld the constitutionality of similar laws in other states.
“The risk posed by someone who, like S.C., has attempted to forcibly rape another, creates a sufficient basis...to mandate actions that will protect the public against the likelihood of similar future offenses,” the state says in its written answer to the appeal.
The American Civil Liberties Union of Missouri has filed a brief supporting the boy’s case. “When children are treated and punished as adults, we see constitutional difficulties,” said Gillian Wilcox, an ACLU staff attorney in Kansas City....
Under Missouri law, most juveniles placed on the registry are removed when they turn 21. But those, like S.C., who were 14 or older when they committed certain serious crimes, have to register as adults when they turn 21.
Statewide, more than 300 people are now on the registry for crimes committed while juveniles.... Once on the adult registry, placement is for life, and the law does not allow for a way to petition for removal....
In its arguments in support of S.C., the ACLU of Missouri cites research by social scientists that shows that requiring lifelong sex offender registration for juveniles can actually increase their chances of recidivism because offenders “find themselves isolated from important social, educational and family networks.”
“No opportunity exists for children or their counsel to present evidence demonstrating they should not be required to register publicly for the rest of their lives,” the ACLU argues.
Attorneys for the state, however, argue that appeals courts have found that sex offender registry laws are not criminal punishments, but are civil in nature and are designed with the “rational basis” of giving the public information about individuals who pose “a significant risk.”
"The Costs and Benefits of Subjecting Juveniles to Sex-Offender Registration and Notification"
Every state and territory in the United States has registration and notification laws that apply to adults convicted of, and juveniles adjudicated delinquent for, certain sex offenses. Most jurisdictions enacted these laws on their own, but expanded them in response to the Adam Walsh Act of 2006 (AWA).
Registration laws require offenders to appear in person to provide identifying information (e.g., fingerprints, DNA samples) and, at least once a year, to provide an updated current photograph. States vary with respect to the kinds of additional information they require, but the list is extensive. An in-person update also is required for any covered change in life circumstances. These include changes in residential, school, work or email addresses, screen names and even blog avatars.
The time allowed to complete each update is short. Failure to register or update an existing registration is itself a felony. Offenders may be covered by multiple states, each with its own rules and procedures. Notification laws make some of this information publicly available via the Internet.
Registration is calculated to produce about $200 million in social benefits per year. Social costs are calculated to range from $200 million to $2 billion, depending on the proportion of registrants listed due to offenses committed as juveniles. Thus, net benefits are calculated to range from -$40 million to -$1 billion per year, with present-value net benefits that range from -$2 billion to -$20 billion. This result depends on a small number of parameters. First, based on the best available study in the literature, which applies to all sex offenders and not just juveniles, registration is assumed to have reduced sex-offense recidivism by about one-eighth. This translates into an annual reduction of about 800 major sex offenses committed by juveniles.
Notification is estimated to produce no social benefits, with social costs per-year that range from $10 billion to $40 billion and present-value costs that range from -$100 billion to -$600 billion. About three-fourths of these costs are borne by sex offenders’ neighbors. This occurs because living near a registered sex offender – whether an adult or juvenile – has a substantial “disamenity” value. Costs imposed on juvenile offenders are calculated to range from $400 million to $2 billion per year. Costs on their families are calculated to add another 50 percent to these amounts. Additional costs on third parties are calculated as: $3 billion per year on employers for registry searches; $100-$500 million on employers for adaption and mitigation of employment issues; and $200 million to $1 billion on the public for registry searches.
Because notification cannot produce net benefits, the qualitative prospective benefit-cost analysis focuses on ways to reduce the social costs of notification. A number of reform alternatives warrant consideration to reduce the substantial net social costs of notification. These alternatives involve exempting certain fractions of registrants listed due to offenses committed as juveniles. High-quality risk assessment is necessary to minimize false positives.
Wednesday, September 16, 2015
"Who Pays? The True Cost of Incarceration on Family"
The title of this post is the title of this new report based on research by a number of public policy groups. Here is the executive summary:
For decades, individuals, families, and communities—especially low-income people and communities of color—have faced destabilizing and detrimental impacts as a result of our nation’s unfair criminal justice policies. The repercussions of these policies extend far beyond sentencing and incarceration, affecting the employment, education, housing, and health of individuals and their families for years to come. A unique contribution to the body of research, the study explores the ways in which women support their incarcerated loved ones, often jeopardizing their own stability. Our nation can no longer afford the devastating financial and familial costs of incarceration if we truly want to foster communities that are healthy, sustainable, and just.
As a result of this research, recommendations are made for three key categories of critical reforms necessary to change the criminal justice system and to help stabilize and support vulnerable families, communities, and formerly incarcerated individuals: Restructuring and Reinvesting, Removing Barriers, and Restoring Opportunities.
Restructuring and Reinvesting: Following the lead of states like California, all states need to restructure their policies to reduce the number of people in jails and prisons and the sentences they serve. The money saved from reducing incarceration rates should be used instead to reinvest in services that work, such as substance abuse programs and stable housing, which have proven to reduce recidivism rates. Additionally, sentencing needs to shift focus to accountability, safety, and healing the people involved rather than punishing those convicted of crimes.
Removing Barriers: Upon release, formerly incarcerated individuals face significant barriers accessing critical resources like housing and employment that they need to survive and move forward. Many are denied public benefits like food stamps and most are unable to pursue training or education that would provide improved opportunities for the future. Families also suffer under these restrictions and risk losing support as a result of their loved one’s conviction. These barriers must be removed in order to help individuals have a chance at success, particularly the many substantial financial obligations that devastate individuals and their families. On the flip side, when incarcerated people maintain contact with their family members on the outside, their likelihood of successful reunification and reentry increases, and their chances of recidivating are reduced. For most families the cost of maintaining contact is too great to bear and must be lowered if families are to stay intact. Removing cost and other barriers to contact is essential.
Restoring Opportunities: Focusing energy on investing and supporting formerly incarcerated individuals, their families, and the communities from which they come can restore their opportunities for a brighter future and the ability to participate in society at large. Savings from criminal justice reforms should be combined with general budget allocations and invested in job training and subsidized employment services, for example, to provide the foundation necessary to help individuals and their families succeed prior to system involvement and upon reentry.
Our nation’s criminal justice system has dramatic impacts on the lives of individuals who are incarcerated and the lives of those they touch. These effects wreak financial, physical, and emotional havoc on women, families, and communities, undermining potential for a better life. The true costs of our criminal justice system are complex, deeply rooted, and demand a closer look at the multiple impacts on individuals and families. When these costs are understood and acknowledged, it becomes clear that the system — and society more broadly — must change.
Tuesday, September 08, 2015
"The Pointless Banishment of Sex Offenders"
The title of this post is the headline of this New York Times editorial in today's paper. Here are excerpts:
It’s a chilling image: the sex predator skulking in the shadows of a swing set, waiting to snatch a vulnerable child.
Over the past two decades, that scenario has led to a wave of laws around the country restricting where people convicted of sex offenses may live — in many cases, no closer than 2,500 feet from schools, playgrounds, parks or other areas where children gather. In some places, these “predator-free zones” put an entire town or county off limits, sometimes for life, even for those whose offenses had nothing to do with children.
Protecting children from sexual abuse is, of course, a paramount concern. But there is not a single piece of evidence that these laws actually do that. For one thing, the vast majority of child sexual abuse is committed not by strangers but by acquaintances or relatives. And residency laws drive tens of thousands of people to the fringes of society, forcing them to live in motels, out of cars or under bridges. The laws apply to many and sometimes all sex offenders, regardless of whether they were convicted for molesting a child or for public urination.
Lately, judges have been pushing back. So far in 2015, state supreme courts in California, Massachusetts and New York have struck down residency laws.... The United States Supreme Court has not yet weighed in on residency restrictions, although a 2003 ruling upholding mandatory registration for sex offenders suggested that such laws may violate the Constitution.
It is understandable to want to do everything possible to protect children from being abused. But not all people who have been convicted of sex offenses pose a risk to children, if they pose any risk at all . Blanket residency-restriction laws disregard that reality — and the merits of an individualized approach to risk assessment — in favor of a comforting mirage of safety.
Monday, September 07, 2015
"The New Peonage"
The title of this post is the title of this notable new article by Tamar Birckhead now available via SSRN. Here is the abstract:
Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court in Bailey v. Alabama (1911) and U.S. v. Reynolds (1914) invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act. Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.
This Article, the Author’s third on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the phenomenon of what the Author calls “the new peonage.” It argues that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today. Across the U.S. even seemingly minor criminal charges trigger an array of fees, court costs, and assessments that can create insurmountable debt burdens for already-struggling families. Likewise, parents who fall behind on their child support payments face the risk of incarceration, and upon release from jail, they must pay off the arrears that accrued, which hinders the process of reentry. Compounding such scenarios, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When low-income parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge, the failure of which can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For youth in the juvenile court system, mandatory fees impose a burden that increases the risk of recidivism. In short, for families caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms. Ironically, rather than having court fees serve as a straightforward revenue source for the state, this hidden regressive tax requires an extensive infrastructure to turn court and correctional officials into collection agents, burdening the system and interfering with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.
This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: both function to maintain an economic caste system. The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece. The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment through the early twentieth century. It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay, including juveniles. It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact. The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings.
September 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)
Sunday, September 06, 2015
Digging deeply into the back-end of criminal justice systems
Regular readers are accustomed to seeing my praise in this space for Margaret Love's commentary about the federal clemency process and for the commentary and coverage of a range of back-end criminal justice issues at the Collateral Consequences Resource Center. These new posts at CCRC provide yet more support for my view that any and everyone interested in the so-called "back-end" of American criminal justice systems should be reading everything Margaret Love has to say and all the posts at CCRC:
Friday, September 04, 2015
"American Criminal Record Exceptionalism"
The title of this post is the titel of this new paper by Kevin Lapp now available via SSRN. Here is the abstract:
In recent decades, criminal records have proliferated and come to be more consequential than ever. James B. Jacobs’s new book, THE ETERNAL CRIMINAL RECORD (2015), documents their broad scope, wide availability, and the long, devastating shadow that criminal records cast.
In this Review, I organize the material in this challenging book into three different claims about American criminal record policy: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent. I explain how this results in an inexpensive means of sorting and inflicting punishment by devolving a great portion of the work to private actors and the general public. It also presents a public policy conundrum for American criminal justice: the more information we collect and share about suspected criminals and actual offenders, the easier it is to identify and discriminate against those marked individuals. This, it turns out, increases recidivism, therefore undermining the public safety goal at the heart of comprehensive, accessible criminal records. To counter this perverse outcome, I marshal evidence and optimism for reforms that Jacobs considers either unattainable or unwarranted, including the possibility of juvenile justice policy serving as a blueprint for a more redemptive criminal record policy for all.
Tuesday, September 01, 2015
"Charging on the Margin"
The title of this post is the title of this notable new paper discussing prosecutorial practices and collteral consequences autored by Paul Crane now available via SSRN. Here is the abstract:
The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions.
Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.
This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.
September 1, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)
Friday, August 28, 2015
Massachusetts SJC rules local sex offender restrictions preempted by state law
As reported in this Boston Globe article, "Massachusetts cities and towns cannot broadly restrict where sex offenders can live, the state’s highest court ruled Friday, declaring that measures in place in more than 40 municipalities were in conflict with state law." Here is more on the ruling:
The decision came as the Supreme Judicial Court upheld a lower court ruling on a Lynn ordinance that the judges said would have affected 95 percent of the city’s residential properties. The court decried the measure, which it said conflicted with a 1999 state law that set up a system to keep track of sex offenders in communities.
“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst,” the ruling said.
Timothy Phelan, who sponsored the Lynn ordinance when was City Council president in 2011, called the decision discouraging and disappointing. SJC rules against sex offender zone laws in Mass. “It seems like the rights of children are taking a back seat to what is politically correct,” Phelan said.
The ordinance placed strict limits on the ability of Level 2 and 3 sex offenders — those deemed by the state to have moderate and high risks of reoffending — from living within 1,000 feet of a park or school.
John Reinstein, the attorney who argued the case on behalf of three registered sex offenders, said the strong language in the ruling is “a shot across the bow to any attempt to provide the authority for broad-based restrictions to cities and towns.” Reinstein began work on the subject while he was legal director of the American Civil Liberties Union of Massachusetts and continued after his retirement in 2013.
He and his colleagues had urged the court to reject the law on constitutional grounds, arguing that it violated the fundamental rights of sex offenders to move freely within the state and choose where they live.
Friday’s decision instead followed a lower court ruling in deciding that the ordinance violated “home rule” provisions because it is a local measure in conflict with state law. The outcome leaves open the possibility that lawmakers could restore the ability of municipalities to create residency restrictions for sex offenders.
The full unanimous Massachusetts SJC ruling is available at this link.
August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)
Do tough sex offender restrictions really hurt women and children more than keeping them safe?
The question in the title of this post is prompted by this lengthy new Al-Jazeera America article headlined "Collateral damage: Harsh sex offender laws may put whole families at risk: Research says that registries and residency bans leave children of sex offenders vulnerable to bullying, homelessness." Here are excerpts:
In 1996, Congress passed Megan’s Law, which allowed states to publicize the names of those convicted of sex offenses. A wave of federal and state laws followed that created online sex offender registries, broadened who is listed and restricted where registrants can live.
But today there’s a growing body of research and court opinions questioning those laws’ effectiveness and constitutionality. No studies have looked at what proportion of the country’s nearly 850,000 people on state registries are providing for families of their own. Activists say, however, that thousands of female partners and children are being hurt by laws that aim to protect kids....
Vicki Henry, who runs Women Against the Registry, a group trying to roll back registration and residency laws nationwide, [with] volunteers operate a hotline for family members of registrants seeking help in dealing with the consequences of those laws. They field about 100 calls a month, Henry says.
The only quantitative study to date suggests how serious those consequences may be. In the American Journal of Criminal Justice in January 2009, researchers Jill Levenson and Richard Tewksbury reported on their survey of nearly 600 immediate family members of registrants. More than 20 percent said they had to move out of a rental because their landlord found their relative’s name on the registry, and 40 percent said they found it hard to find an affordable place to live.
Respondents said that their kids didn’t fare well either. Two-thirds reported that their children felt left out of activities because of their parent’s status, more than three-quarters said their children were depressed, and almost half reported that their children were harassed....
Two new qualitative studies provide more backing for the 2009 study findings. From 2010 to 2012, a team of researchers from four universities surveyed almost 450 registrants about the consequences for their families of their being on the list. Their report on the study ran in the October 2014 Justice Policy Journal. Another by two University of Delaware researchers involved surveys last year of 36 family members and interviews with 16 of them; it’s still under review for publication. Both studies asked open-ended questions, so the researchers couldn’t crunch any numbers. But key themes run through the responses — children being shunned and harassed, families struggling to find a place to live, wives losing friends and jobs because a husband is on the list....
Those families may be the collateral damage in a war on sex crimes that’s been underway since passage of Megan’s Law. But it’s far from clear that the chief weapons politicians have employed — registries and residency bans — are helping to protect children or the public.
None of the six studies on sex offender registries conducted between 1995 and 2011 found that registries lowered recidivism, according to a meta-analysis of 20 years of research in the November 2012 Journal of Crime and Justice. “Over the last 15 years, sex offender registries have been established in all empirical forums not to reduce sexual offending behavior, violence, or the number of victims,” Kristen Zgoba, coauthor of that study, wrote in an email.
There’s an even broader consensus on residency restrictions. A U.S. Department of Justice brief released last month concluded that “research has demonstrated that residence restrictions do not decrease and are not a deterrent for sexual recidivism.” And a December 2013 study report in the journal Criminal Justice Policy Review noted that Florida’s residency laws likely play a “significant role” in homelessness and transience among sex offenders.
Thursday, August 06, 2015
Teen placed on sex offender registries after encounter with girl claiming to be 17 to be resentenced
According to this new CNN piece, there seems to be a notable new legal development in a notable case of a teen facing extreme sex offender restrictions after a seemingly not-so-extreme sex offense. The piece is headlined "Judge reconsidering case of teen on sex offender registry," and here are the details:
A 19-year-old Indiana man convicted of a sex offense after a teenaged girl lied about her age on a hookup app may get a new sentence. The judge in the case, Dennis Wiley, did not make a decision Wednesday, but he agreed to consider Zach Anderson's request to be resentenced, meaning that Anderson could potentially be taken off the sex offender registry.
Anderson met the girl on the dating app "Hot Or Not." The 14-year-old girl lied about her age, claiming she was 17, which made having sex with her a crime. She lived in southern Michigan, close to Anderson's parents' home in Elkhart, Indiana. Anderson was given a 90-day jail sentence, five years probation and placed on both Indiana's and Michigan's sex offender registry for the next 25 years -- the same registry as child rapists, pedophiles and predators.
Anderson and his lawyer, Scott Grabel, had asked a court in Niles, Michigan, to vacate Anderson's sentence, alleging that prosecutors broke the plea agreement, the defense attorney said. Grabel, who accuses the prosecution of not staying neutral during the sentencing of Anderson as required under the agreement, described the judge's decision Wednesday as a "significant step." Wiley is expected to make a further ruling in about a week.
"In the long run, I'm confident we're gonna get this thing fixed," the attorney told CNN. Both the girl's mother and the girl herself had earlier appeared in court, to say they didn't believe Anderson belonged on the sex offender registry....
"Our goal is to get this case resentenced in front of a different judge, because the law mandates if the prosecutor violates their plea agreement, then it should be sent to a different judge for possible resentencing, or if we want to withdraw the plea and go to retrial that may be an option, as well," Grabel told CNN before the court action Wednesday.
Anderson's attorney is also striving to get the entire case dismissed. "I don't certainly speak for the public in general, but the comments I've read nationally think that his whole life shouldn't be ruined by his decision to go on a date and obviously have sexual relations with that person, especially when that person in all honesty misrepresented their true age," Grabel said.
As a registered sex offender, Anderson can't access the Internet, go to a mall or linger near a school or playground. His parents say because he has a 15-year-old brother, he can't even live at home any longer....
Anderson's case has stirred much debate about the one-size-fits-all sex offender laws that treat all offenders the same whether they are serial child predators or teens who've had sex with a girlfriend. His family has started a Facebook page, called "Justice 4 Zach," and has been very vocal about what they call the injustice of the sex offender registry. "He's obviously not a sex offender," Anderson's father told CNN, "I mean when there's a consensual act, to have one person labeled as the offender and the other person as a victim ... It's hard to swallow."
A former judge in a nearby town said the sex offender registry has to be changed. "If we caught every teenager that violated our current law," said former Judge William Buhl, "we'd lock up 30 or 40% of the high school. We're kidding ourselves."
According to The National Center for Missing & Exploited Children, there are 850,000 people on the sex offender list and about a quarter of them were juveniles when they were sentenced, but the records are not broken down by the severity of the crimes they committed.
Some recent related posts:
- "For Juvenile Sex Offenders, State Registries Create Lifetime Of Problems"
- Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions
- New York Times reviews juve problems with modern sex-offender laws
Monday, August 03, 2015
Two distinct notable tales of crimes and punishment via the Grey Lady
The New York Times starts the work week off with these two intriguing lengthy pieces about two different stories of crimes and punishment:
Saturday, August 01, 2015
Notable recent state criminal justice reforms highlighted by Pew
The Pew Charitable Trusts has done a lot of important criminal justice reform work at the state level in recent years. These notable recent Pew discussions of state reforms provide an effective review of encouraging reform developments from a state-level perspective:
Tuesday, July 21, 2015
Intriguing federal civil rights case assailing New York sex offender family restrictions
A helpful reader altered me to this fascinating story, headlined "Bronx Dad's Case Tests Restrictions on Sex Offenders," concerning a fascinating federal court case being litigating in New York. Here are the basic details via the press account (with links):
With a name resembling a kindergartner's alphabet primer, the lawsuit ABC v. DEF takes on far more insidious themes -- namely the parental rights of a Bronx man who spent eight years in prison for raping his ex's teenage niece.
A federal judge issued an order in the case last week that could earn that man unspecified financial compensation from New York state. Three law professors interviewed by Courthouse News say they have never heard a sex offender case quite like it.
Though the case was unsealed last year, a pseudonym still shields the name of the 50-year-old plaintiff. The docket meanwhile evinces a powerful support network for his cause, including dozens of family members and friends who wrote to the court on his behalf. Doe's attorney, Debevoise & Plimpton partner Michael Mukasey, is a former U.S. attorney general.
It's been 10 years since a jury found that Doe committed second-degree rape and other offenses against his ex-wife's niece, who accused him of assaulting her when she lived with the family between the ages of 13 and 14. The jury acquitted Doe of the first-degree charges, and he is appealing the counts for which he was convicted, maintaining that he is innocent.
While still behind bars, Doe and his wife divorced, and he remarried another woman he had known for 25 years. They had a child, "M.S.," shortly before Doe successfully completed his sex-offender and substance-abuse rehabilitation programs in the fall of 2012. Since Doe requires permission to contact anyone under the age of 18, parole officers ordered him away from his new home -- and into a homeless shelter -- when his son turned 1 month old.
A Bronx Family Court already allowed the father of six to have unsupervised visits with his teenage daughter, and social workers saw no danger with his raising a newborn son.
Doe's accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life. "Why should he live happy and comfortable when he took something from [me] that [I] can't get back?" she asked them, according to court papers.
After this conversation, a Manhattan bureau chief of New York State's parole division ordered Doe away from his new family in a one-paragraph directive stating that the "victim's perspective is always important." Bureau Chief Joseph Lima officer noted in his decision that Doe's crimes "occurred within the family constellation and in some instances while other family members were present in the residence."
Doe's attorney Mukasey noted in a legal brief that all four of their client's adult children wrote letters to the court on behalf of their father. "He has a close relationship with his five oldest children, who range in age from 14 to 27," the brief states. "Mr. Doe has never been accused of neglecting or abusing any of these children; to the contrary, they speak fondly of their relationship with him and his importance in their lives. Mr. Doe desperately wants to establish an equally loving bond with his one-year-old son, plaintiff M.S."...
Neither Mukasey nor his co-counsel would respond to press inquiries. Their amended complaint sought a court order reuniting the family, plus unspecified monetary damages for deprivation of Doe's rights to due process and intimate association. U.S. District Judge Paul Engelmeyer pushed the case forward to discovery Wednesday, in a 36-page opinion and order.
Since parole officers can impose "several dozens" of conditions on the lives of registered sex offenders, Engelmeyer said their expansive powers must face a check. "In addition to the power to decide whether Doe may have contact with any person under age 18, a parole officer has the authority to grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess 'any children's products' or photos of minors; rent a post office box; obtain a driver's license; 'rent, operate or be a passenger in any vehicle'; travel outside of New York City; visit an arcade, bowling alley, beach, or swimming pool; or have visitors at his approved residence," the opinion notes.
Refusing to grant immunity, Engelmeyer wrote "there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court action, over so many aspects of a parolee's life." His ruling allows Doe's claims against six DOCCS officials to advance to discovery. In a phone interview, Georgetown University Law professor Abbe Smith called the decision a "terrific development."
"If you commit a crime, and you're punished, you should be allowed to serve your debt to society and then move on," said Smith, who co-directs the university's Criminal Defense and Prisoner Advocacy Clinic. "[The Bronx father] has a newborn son. I can't imagine on what basis he could be deprived from having contact from his own child." Smith added that she never heard of a case like this before because, "typically, parole officers have immunity," and the ruling emphasizes that they cannot have "limitless discretion."
David Rudovsky, a Penn Law School professor and founding partner of the Philadelphia-based firm Kairys, Rudovsky, Messing & Feinberg, LLP, called the case "significant" because it expands upon a Second Circuit case striking down restrictive probation terms involving relationships with close family members. Unlike that case, however, the ruling in Doe's lawsuit "extended that doctrine to a damages claim against a parole officer," Rudovsky said in an email....
Florida State University professor Wayne Logan, an expert on sex-offender registries, said he had not heard of such a case either.... Smith, the Georgetown professor, said that she felt sympathy for the Doe's victim, but she said that criminal justice must "root for people to rebuild their lives."
"Marriage and making a family, becoming gainfully employed, those are all signs that a person has abandoned their lawless ways," she said.
Wednesday, July 08, 2015
Some notable new posts from the Collateral Consequences Resource Center
It has been a long while since I highlighted some of the great work still being done regularly over at the still-kinda-new Collateral Consequences Resource Center. So here are a bunch of new posts from CCRC from recent weeks:
Tuesday, July 07, 2015
"Sex Offender Registries And Calls For Reform"
The title of this post is the title of this recent extended segment on NPR's Diane Rehm Show. Here is how the program is previewed and the guests on the program:
Sex offender registries are designed to protect the public from pedophiles and others who have committed sexual crimes. But some say those guilty of much lesser offenses don’t belong on the list. We look at sex offender registries and calls for reform.
Abbe Smith, professor of law and co-director of the Criminal Justice Clinic and E. Barrett Prettyman Fellowship program at Georgetown University; author of "Case of a Lifetime."
Jill Levenson, associate professor, social work, Barry University and clinical social worker
Brenda V. Jones, executive director, Reform Sex Offender Laws, Inc.
Victor Vieth, founder and senior director, Gundersen National Child Protection Training Center
Monday, July 06, 2015
ACLU argues Indiana's new religious freedom law protects sex offenders seeking church access
As reported in this interesting local article, headlined "ACLU: RFRA must let sex offenders worship at churches with schools," a new lawsuit in Indiana is creating a new stir surrounding the state's controversial new state religious liberty law. Here are the details:
The American Civil Liberties Union of Indiana filed Wednesday what appears to be the first lawsuit that invokes the state's new new Religious Freedom Restoration Act. Their clients? Registered sex offenders who believe their religious freedom is being denied by another new law that bans them from attending any church located on the same property as a school.
"This is a prime example as a place where people's religious rights are being burdened, and therefore under RFRA the state has to justify that," said ACLU of Indiana legal director Ken Falk. "It makes no sense to ban people on a Sunday if there are kids there on a Thursday." For example, that would be the case with church preschools or parochial schools with adjacent churches....
The lawsuit was filed in Elkhart Superior Court, on behalf of two unnamed sex offenders, against the prosecutors and sheriffs of Allen and Elkhart counties. When reached by The Indianapolis Star, the sheriff's departments declined to comment.
Indiana's new religious freedom law, which went into effect Wednesday, says if the government imposes an undue burden on the religious rights of individuals, businesses or religious organizations, it must prove a compelling interest and that it is using the least restrictive means possible.
"I think this is exactly the kind of case RFRA was about," said Indiana University law professor David Orentlicher. "You've got this sex offender law that's designed to protect children. It wasn't passed with the intent to interfere with religious practice, but it turns out there are a fair number of schools on church grounds. These people now can't go to pray without running afoul of the law."
Some in Indiana — including the ACLU — opposed the state RFRA, arguing that the law would allow discrimination against lesbians, gays, bisexuals and transgender individuals. That led to a "fix" to the law to clarify that an RFRA defense could not be used to trump local and state civil rights laws.
But with the heated debate over how RFRA would apply in wedding services for same-sex couples, "what got lost was there are a lot of good reasons for these statutes," Orentlicher said. "That's what this case should remind us — that RFRAs can be misused, but we don't want to throw the baby out with the bathwater," he added.
Falk of the ACLU said the lawsuit uses RFRA "as it was originally contemplated" to protect religious freedoms. "We're not going to pretend it doesn't exist now," Falk said. "It does exist. The legislature said it wants to protect religious liberties, and that's exactly what we're trying to do."
Still, state Senate President Pro Tempore David Long, a Fort Wayne Republican, criticized the ACLU for the lawsuit. "The ACLU used to be a staunch supporter of religious liberty," he said in a statement. "Now they've reduced themselves to making a mockery of it. On top of this, they also support endangering our children while championing the rights of sex offenders. It's a sad day for the ACLU."
State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds and reacted to the ACLU lawsuit by slamming the religious freedom law: "Clearly nobody had thought through what all the negative ramifications might be for people."
"I think that we have to keep in mind that Indiana is one of the very worst states in the nation when it comes to protecting our children from sexual violence," she added, citing national health statistics and recidivism rates. "We're second only to Wyoming. And we have to do whatever it takes to protect our kids. ... Any time we can keep a sexual predator away from a child, that's a small victory."
But Orentlicher made the point that the case may not be so simple. For sex offenders who have served their time, religion may be instrumental to their rehabilitation, he said: "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."...
In addition, the ACLU argues for sex offenders to have access to the worship services when schools aren't in session. And the lawsuit says it's "not rational" that serious sex offenders can still go to church services where children are present if there's no school attached. Orentlicher said other states, such as Missouri, have carved out religious exemptions to allow sex offenders to attend church when school is not in session. "They're just saying, 'Let us pray when the kids aren't there,' " Orentlicher said.