Tuesday, October 22, 2013

Lamenting sex offender fear-mongering around Halloween

Writing over at Huffington Post, Emily Horowitz has this notable new commentary headlined "Manufacturing Fear: Halloween Laws for Sex Offenders."   Here is how the piece starts and ends:

In North Carolina, a sheriff tells parents to check the online sex offender registry before allowing children to trick-or-treat.  In Montana, a town offers a "trunk-or-treat" event where kids can get Halloween candy from trunks of cars in a parking lot to avoid potential danger.  In New York, "Operation Halloween: Zero Tolerance" prohibits sex offenders from wearing masks or costumes or answering their doors on Halloween, and, as a parole source says, "There is certainly nothing more frightening than the thought of one of these men opening their door to innocent children."  In Oklahoma, a city council is considering an ordinance forbidding sex offenders from decorating their homes or passing out candy on Halloween. In Orange, California, sex offenders can't answer their door or have outside lighting on Halloween, but an additional ordinance requiring window signs saying, "No candy or treats at this residence" was recently revoked after attorneys argued it was a form of cruel and unusual punishment.

Why worry about sex offenders on Halloween?  Research shows no evidence of increased child sex abuse on Halloween and no evidence that a child was ever a victim of sexual abuse by a stranger while out trick-or-treating. This makes perfect sense, because government data shows the vast majority (about 93%) of sex crimes against children are not committed by strangers but by family members or acquaintances....

The false dichotomy of evil adults and innocent children and families prevents children from meeting their neighbors and becoming part of a community.  Sex offenders are subject to more post-punishment restrictions than any other ex-offenders, and have lower recidivism rates.  Halloween sex offender laws, and rampant media coverage of the threat of sex offenders on Halloween and throughout the year, is creating a neurotic and fearful generation of kids who grow up thinking they are helpless prey facing threats from real monsters. Children are safest when they know their neighbors, and Halloween is a good opportunity to meet others in the community.  There are some actual threats to child safety on Halloween -- like an increase in pedestrian car accidents -- but sex offenders and poisoned candy aren't among them.

October 22, 2013 in Collateral consequences, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Monday, October 21, 2013

Alabama legislators proposing adult day-care "clusters" for sex offenders

As reported in this local article, headlined "Bill Proposes Licensed Residential Sex Offender Clusters," legislators in Alabama are considering a new innovation in the monitoring of sex offenders. Here are the details:

Some Alabama State Representatives are hoping a proposed bill will change the laws surrounding where convicted sexual predators are able to live together. Representatives Kurt Wallace and Paul Beckman are sponsoring the proposal that would make it against the law for sexual predators to live together unless it’s in what they’re calling a licensed, regulated residential sex offender cluster.

The proposed bill is similar to a bill passed into law earlier this year by the Alabama State Legislature. Alabama State Senator Arthur Orr is the sponsor of that bill. It encompasses Morgan County, while the proposed bill will cover the entire state.

In part Senator Orr’s bill made it against the law for convicted sex offenders to live in the same house. ”Studies show that if that is the situation there is much more proclivity for them to sexually offend others in the surrounding area,” Senator Orr says. He says his bill was met with agreement from the Alabama Legislature and Morgan County residents. “Certainly the constituents who had small children who were living near this group sexual offender home, and they certainly wanted something done.”

The proposed bill by Representatives Wallace and Beckman would create what lawmakers call residential sex offenders clusters. The bill spells out what that means. A residential sex offender cluster would be a tract of land where registered sex offenders could live together. An on-site monitor would also be required to live there to supervise the offenders. The clusters would have to be licensed and it would authorize the Department of Mental Health to make rules regulating the clusters.

If passed this proposed bill would require any sex offenders who wanted to live together to live in one of the clusters. It’s proposed if they violated that, it would be punishable by a felony charge. Already Alabama has laws preventing convicted sex offenders from living near a school or their victims. Some officials argue it’s already hard enough for them to find a place to live and this proposed bill would make it even harder....

Lawmakers say the proposed bill would promote public safety, health and confidence. They are expected to take this proposed bill up in the 2014 regular session.

October 21, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (32) | TrackBack

Thursday, October 10, 2013

Please welcome (and often visit) the new Civil Rights Law & Policy Blog

It is with great joy and pleasure that I get to promote a great new blog just started by a great former student of mine, Andrew Ironside.  Andrew explains in this first post, some of his primary plans and aspirations for his new Civil Rights Law & Policy Blog:

CRL&P’s goal is to provide an open space for discussion of civil rights and constitutional law issues.  CRL&P’s analyses will focus on contemporary civil rights debates and the concomitant coverage of these conflicts by the press and the academy.  Further, CRL&P will also highlight historical examples of civil rights disputes as they relate to our current understanding of these issues.

CRL&P also hopes to serve as a resource for anyone interested in learning more about this robust and important area of the law.  In particular, CRL&P will provide daily news rundowns; and, it will highlight forthcoming, newly-released, and generally interesting scholarly works relevant to CRL&P’s areas of inquiry.  Visitors are encouraged to visit CRL&P’s resource page.

CRL&P also welcomes debate — comments and criticisms are encouraged, and responses to both specific CRL&P posts and the blog as a whole are appreciated.

Additionally, CRL&P will consider submissions for guest posts. While the scope of civil rights and civil liberties provides virtually limitless opportunities for inquiry, potential guest contributors are encouraged to consider CRL&P’s goals before sending submissions. Similarly, there is no limit to the length of guest posts. But, potential guest contributors ought to consider the blog format before clicking “send.”  Submissions should be sent here.

The editor is Andrew M. Ironside, a graduate of The Ohio State University Moritz College of Law.  Ironside’s academic interests include civil rights law, election law, the First Amendment, and the right to vote. Currently, with support from the new Institute for the Study of Democracy at Ohio State, his research focuses on the right to vote as protected First Amendment speech (more forthcoming).

I have had the pleasure to work with Andrew on a variety of projects, and his prior work history in journalism as well as his interest in the intersection of civil rights and criminal justice leads me to urge fans of SL&P to make regular visits over his new Civil Rights Law & Policy Blog.  Indeed, here are just a small sampling of the many interesting posts one will find at that space already:

October 10, 2013 in Collateral consequences, On blogging, Recommended reading | Permalink | Comments (9) | TrackBack

Thursday, October 03, 2013

Should downloading a few pics of child porn result in attorney's disbarment?

The question in the title of this post concerning a notable collateral consequence of some convictions is prompted by this fascinating cover story from the October 2013 issue of the California Lawyer magazine. (Hat tip: How Appealing.) The story is headlined "Unfit to Practice? The state Supreme Court must decide whether a lawyer's possession of child pornography requires summary disbarment," and here is how the piece begins:

Gary Douglass Grant is a lawyer with a big problem. In 2007 the civil litigator and former captain in the Army Reserves, now 56, was a JAG lawyer assigned to Los Alamitos Army Airfield when an Immigration and Customs Enforcement (ICE) operation in Virginia tracked hits on approximately 18 commercial child pornography websites. ICE agents in Project Flicker, as it was known, located a number of active and retired military members, civilians, and contractor employees - several of whom had Top Secret or higher clearances - who allegedly used their military email addresses to register for PayPal accounts to access the images.

One of the 16 individuals identified that summer was Gary Grant. A search of computers at his Aliso Viejo home revealed that he had sent over the Internet an image depicting minors engaged in sexually explicit conduct; Orange County sheriff's deputies arrested him a year later. Investigators had found that between 2001 and 2007 Grant accumulated more than 100,000 digital pornographic images, much of it legal adult material. But mingled among those images were pornographic pictures of children. An analyst who examined the seized files found 19 photos and a videotape of youths who appeared to be between 14 and 16 years old - "possibly minors."

The Orange County District Attorney charged Grant with three counts of California Penal Code section 311.11(a), possession of obscene matter of a minor in a sexual act. Prosecutors gave Grant and his lawyer a CD with at least 100 sexual images of children retrieved from Grant's computers.

From the outset, Grant gave specific orders to his criminal defense attorney: "Defend this to the nth degree, because no way, no how, did I knowingly possess child pornography."

Ultimately, though, Grant conceded there were sexual images of underage girls on his computer. He said he had found the photos repugnant and deleted them. But even deleted images may remain on a hard drive, and that's where forensic computer analysts in this case located them. In April 2009 Grant admitted he had temporarily possessed two "unsolicited electronic images" of children, received by email while he was downloading other pornography. He pleaded guilty to one count of felony possession; prosecutors agreed to drop the other two charges. The judge sentenced Grant to 90 days in jail and three years of probation, and ordered him to register as a sex offender for the rest of his life. He did not appeal his conviction or sentence.

Grant joined a twelve-step fellowship known as Sex and Love Addicts Anonymous. But by autumn he had violated the terms of his probation by downloading adult pornography to his computer and by "sex-texting" two former girlfriends. The violations brought Grant an additional 183 days of jail time - more than twice his original sentence.

Based on the felony conviction, the State Bar of California automatically placed Grant on interim suspension pending further disciplinary proceedings. A State Bar Court trial judge later recommended that Grant be disbarred because his felony involved moral turpitude. His lawyer challenged that characterization, and the severity of the discipline. When the Review Department recommended only a suspension, the prosecutors appealed. Now Grant's case is pending before the state Supreme Court, where it has been fully briefed and awaits oral argument. (In re Grant, No. S197503 (Cal. Sup. Ct).)

At issue is the State Bar's ability to exact the ultimate sanction - disbarment - pursuant to a summary procedure that permits neither consideration of mitigating factors nor whether that sanction is appropriate. What began as one man's compulsion to accumulate pornography has become a challenge to the moral-turpitude-per-se standard, and the State Bar's procedures associated with it. Ultimately the Grant case could result in changes to disciplinary proceedings that affect hundreds of matters.

October 3, 2013 in Collateral consequences, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, September 23, 2013

Litigation prompting California city to give up Halloween sex offender posting law

As reported in this Los Angeles Times piece, headlined "O.C. city likely to drop Halloween law aimed at sex offenders: A lawsuit challenges a city of Orange law requiring sex offenders to post signs to discourage trick-or-treaters," it appears that just the filing of a constitutional lawsuit is prompting reform of a local ordinance. Here are the basics:

An Orange County city will probably toss out a law requiring registered sex offenders to post a sign in front of their homes on Halloween to discourage trick-or-treaters after it was hit with a federal lawsuit alleging the practice is unconstitutional.

Registered sex offenders in the city of Orange are legally required to post a sign on Halloween, no smaller than 12 by 24 inches, that reads, "No candy or treats at this residence." Violators face a $1,000 fine or up to a year in jail. The lawsuit, filed Wednesday on behalf of an individual identified only as "John Doe," alleges the law violates the 1st Amendment rights of registered sex offenders and puts them, and anyone living with them, at risk of physical and emotional harm.

"If you think about it, a lot of older kids go out to trick rather than treat," said Janice Bellucci, an attorney and president of the California Reform Sex Offender Laws group. "All you have to do is look for the house with the sign."...

Bellucci filed a similar lawsuit last year to strike down a Simi Valley ordinance that also required people convicted of sex crimes to post a sign. That law also banned them from putting up Halloween displays and outside lighting on Oct. 31. But the day before the Simi Valley law went into effect, federal court Judge Perry Anderson issued a temporary restraining order barring the city from enforcing the sign provision.

The judge let stand provisions of the ordinance that keep sex offenders from turning on outside lights, decorating their homes and answering their doors to trick-or-treaters....

In Orange, no registered sex offenders have been cited since the ordinance was adopted, said City Atty. Wayne Winthers. When the city passed the law in February 2010 officials counted 81 registered sex offenders, with 81% of them having convictions involving minors, according to city records.

There was no need for the group to file the lawsuit, he said, since the city had been in contact with Bellucci and the City Council was expected to discuss the issue next week in closed session. "I read the district court's [Simi Valley] ruling and I don't see any reason why the court would look at ours any differently," said Winthers, who said he intended to ask the council to remove the sign requirement from the Halloween ordinance. "Our intent wasn't to bring any unnecessary harm or scrutiny to any particular individual," Winthers said. "We just wanted to protect children."

September 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Monday, September 16, 2013

Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform

I-love-randMy (unhealthy? appropriate?) bromance with U.S. Senator Rand Paul has reached a whole new level based on this notable new article from Kentucky.  The piece is headlined "Sen. Rand Paul calls for restoring felons' voting, gun rights," and here are excerpts:

U.S. Sen. Rand Paul told a largely black audience Monday in Louisville that he will push to restore the voting and gun-ownership rights of felons who have completed their sentences — and he will urge state Senate Republicans to follow his lead. Currently in Kentucky, felons must petition the governor to get their voting rights restored.

“I am in favor of letting people get their rights back, the right to vote ... Second Amendment rights, all your rights to come back,” he said. “I know of one man who 30-some-odd years ago had pot plants in his closet in college, got a felony conviction in college, still can’t vote, and it’s plagued him his whole life trying to get work.”

The Republican’s comments came at the Plymouth Community Renewal Center in western Louisville as he spoke with community leaders about issues that affect African Americans. Additionally, as he has done in the past, he called for doing away with mandatory minimum sentences in the federal criminal justice system, saying they are often too harsh.

The Rev. Patrick Delahanty, the executive director of the Catholic Conference of Kentucky and who was not at the meeting, applauded Paul’s stance on restoring voting rights in a later interview. He said Paul’s comments could help advance the issue during the next session of the General Assembly....

Paul said during the meeting in western Louisville that he believes felons should have their rights restored automatically — either immediately after completing their sentences or at some specified point after the sentences are served. He said he plans to talk to leaders in the Kentucky Senate about their opposition and would be willing to travel to Frankfort to testify in favor of legislation to restore voting rights....

The League of Women Voters found in a 2006 study that nearly one in four African Americans is banned from the polls because of a felony conviction, compared with 1 in 17 Kentuckians overall.

Paul, who has said he is considering running for president in 2016, has been meeting with African-American groups in an effort to bridge the gap between blacks and the Republican Party. Paul also met this year with students at the historically black Howard University in Washington, D.C., and then later with students at historically black Simmons College in Louisville.

During an hourlong discussion Monday, Paul listened as black leaders talked about issues that hinder African Americans’ ability to get a leg up and fully participate in the community. Much of their concern centered around helping black men who committed crimes but have turned their lives around.

This AP article about Senator Paul's comments today also contributes to my man-love for this GOP leader:

U.S. Sen. Rand Paul drew a favorable response Monday in a mostly black Louisville neighborhood as the tea party favorite promoted the ideas of giving judges more sentencing flexibility, restoring voting rights for felons and offering tax breaks to lure businesses into struggling communities....

Paul spoke with a group of ministers and community activists during a meeting that lasted more than an hour. The senator told the group at the Plymouth Community Renewal Center that the "War on Drugs" unfairly targeted blacks. "We went crazy on the 'War on Drugs,'" the libertarian-leaning senator said. "Drugs aren't good. We should have some laws. ... We have to figure out how to go forward, so changing those laws is important."

Paul criticized federal mandatory minimum penalties that he said have clogged prisons with non-violent drug offenders. Blacks make up a disproportionately high number of those inmates, he said. "We have people in jail for life for non-violent drug crimes," he said. "I think this is a crime, in and of itself."

The first-term senator is a leading sponsor behind legislation that would give federal judges greater flexibility in sentencing. The measure is scheduled to be reviewed at a Senate Judiciary Committee hearing later this week.

"Mandatory minimums have trapped a lot of people, made them felons, made it hard for them to get jobs, for non-violent crimes," Paul said. "I would just as soon take some of these non-violent crimes and make them misdemeanors so you don't get in that trap."

Paul said he's also considering legislation that would restore voting rights for non-violent felons of federal crimes. The bill is still in draft form, he said, but the restoration of rights would apply to non-violent offenders who haven't committed other crimes for perhaps five years.

Paul said such a bill would especially be aimed at people who committed drug offenses as young adults — which he referred to as a "youthful mistake." Such offenders pay for those indiscretions for decades to come, he said. "I think the biggest problem right now with voting rights is ... not being allowed to vote because the law says you can never vote," he said.

Some recent and older related posts:

September 16, 2013 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (16) | TrackBack

Thursday, September 05, 2013

Effective review of history and modern realities of felon disenfranchisement

0613_issuecover_0I just came across this effective recent article in the American Prospect which discusses the history of felony disenfranchisement laws in the United States and their continued impact and import. The piece is titled "The Ex-Con Factor: Felony-disenfranchisement laws suppress black turnout enough to swing elections, and the future of reform is murky," and here are just a few passages that caught my eye:

Virginia is one of four states — along with Florida, Iowa, and Kentucky — that strip voting rights from felons for life.  The U.S. is the world’s only democracy that permits permanent disenfranchisement.  While most states have some restrictions on felons voting, it takes a decree from the governor or a clemency board to restore voting rights in the four states with lifetime bans.  In Virginia alone, 450,000 residents are disenfranchised.  In Florida, the total is an astonishing 1.5 million....

All but two states, Vermont and Maine, disenfranchise felons for some period of time. Thirteen states strip voting rights only for the period of incarceration.  Most have waiting periods with various requirements, like paying fines and completing special applications. Seven states — Alabama, Arizona, Delaware, Mississippi, Nevada, Tennessee, and Wyoming — have lifetime bans for particular crimes or repeat felony offenders.  They aren’t the strictest laws, but they affect enough potential voters to sway statewide elections.  In Alabama, more than 260,000 residents are stripped of their voting rights; more than half, just over 137,000, are African American.  In Mississippi, blacks account for nearly 60 percent of the 182,000 disenfranchised citizens.

When you add it all up, the numbers are startling.  More than five million Americans are currently disenfranchised because of felony convictions — an increase of some 270,000 over the past decade.  Nearly 1.4 million are ... black men. They represent 24 percent of the total disenfranchised population and a whopping 13 percent of all voting-age African American men.

Black men’s overrepresentation is no accident.  Felony disenfranchisement laws trace back to the post-Reconstruction era when former Confederates and white Southern Democrats rolled back the political gains made by free slaves after the war.  The whole point of these laws was the mass exclusion of black men from mainstream civic life.  It still is.

You can see the effects most clearly in black turnout rates.  The nation’s 27 million African American voters are concentrated in the South and in Northern urban centers.  Almost two-thirds — 66 percent — voted in last year’s presidential election, giving African Americans higher turnout than any other racial group.  But unlike with other groups, there was an odd gender gap: While more than 70 percent of black women voted, only 60 percent of black men went to the polls.  The difference, according to Bernard Fraga of Harvard University, is explained entirely by the huge number of black men who are disenfranchised....

From the start, criminal disenfranchisement laws were part of the white Democrats’ Redemption campaign.  They were written as race-neutral but were racist in their effects, as Middle Tennessee State University history professor Pippa Holloway documents in her book Living in Infamy: Felon Disenfranchisement and the History of American Citizenship. In just the period between 1874 and 1882, every Southern state but Texas found ways to disenfranchise those convicted of minor crimes like petty theft.  “Some Southern states changed their laws to upgrade misdemeanor property crimes to felonies,” Holloway explains, “and finally, Southern courts interpreted existing laws to include misdemeanors as disenfranchising crimes.”...

For those who want to end this last vestige of Jim Crow, the past two decades have brought decidedly mixed news.  On the one hand, nine states — including the South’s two largest — have repealed or amended lifetime disenfranchisement laws since the late 1990s. In 1997, the Texas Legislature — under Governor George W. Bush — ended its two-year waiting period for regaining eligibility after release, restoring rights to 317,000 citizens.  Seven years later, in 2004, another Governor Bush — Jeb — ordered the state clemency board to simplify Florida’s procedure, leading to the restoration of voting rights for 152,000 people.

But after the Tea Party wave election of 2010, Republicans in several states began to call again for stricter disenfranchisement.  In Florida, Republican Governor Rick Scott reversed the reforms that had smoothed the process for ex-felons and added a five-year period for rights restoration for nonviolent felonies, and a seven-year period for violent ones and other serious crimes.  One in ten voting-age Floridians now lacks voting rights as a result of past crimes.  Florida’s harsh disenfranchisement laws are reflected in another stark statistic — more than 25 percent of all disenfranchised Americans reside in the state.

In North Carolina, where ex-felons are granted voting rights after completing parole or probation, Republican lawmakers began pushing one of the nation’s toughest laws this spring.  It would impose a five-year waiting period and then require the ex-felons to present affidavits from two registered voters vouching for their “upstanding moral character” and win unanimous approval from their local board of elections.  The bill’s primary sponsor, state Senator E.S. “Buck” Newton, told Raleigh’s News & Observer that he considered it a lenient measure, because “the vast majority of people I have spoken to regarding election laws think convicted felons should not be able to vote at all.”

Some recent and older related posts:

September 5, 2013 in Collateral consequences, Who Sentences? | Permalink | Comments (15) | TrackBack

Tuesday, August 27, 2013

"Is it fair for sex offenders to stay listed on a registry for life?"

The title of this post is the headline of this recent lengthy article in the St. Louis Post-Dispatch. Here are excerpts:

On one side of the latest debate over Missouri’s sex-offender registry are people such as Daniel Ray Winfrey. In 1991, when Winfrey was 15, he and three others raped and murdered sisters Julie and Robin Kerry at the Chain of Rocks Bridge near St. Louis.

Winfrey testified against his co-defendants in exchange for a 30-year prison sentence. Though back in prison, he has been paroled twice since his conviction. At those times, he was free but still listed on the state’s sex-offender registry website. That website, Gov. Jay Nixon argues, is the only way for most neighbors and others to know of the potential danger while such offenders are among them.

“You wouldn’t want to know if one of these guys moved in next door?” Nixon asked last week. He was defending his veto of a bill that would remove from the website all offenders who, like Winfrey, were under 18 when they committed their crimes.

On the other side are people such as Ali Nemec’s fiancé. He was 17 when he was arrested for having child pornography on his computer. Now 24 and still listed on the registry website, he’s had difficulty at work, has been been turned away from housing and lives with his parents.

“We can’t go to a park, we can’t go to a mall. If there’s an event with our friends near a school, we can’t go,” said Nemec, 23, of St. Peters. “He made a mistake ... (but) he is not the boy that he was. There’s no reason to ruin him for the rest of his life.”

The registry is today’s ultimate “scarlet letter.” Long after they’ve served their time, sex offenders remain barred from parks and schools and limited in their employment and housing options. Their names and faces are posted on the Internet, easily accessible to friends and neighbors.

In Missouri, they stay listed for life, even if they were juveniles when they committed their crimes. The state Legislature passed this year a bill to change that. Nixon vetoed it, potentially setting up an emotionally charged veto fight next month.

The bill would remove from the sex-offender registry website hundreds of offenders such as Nemec’s fiancé and Winfrey, whose crimes were very different but who were both under 18 when they committed them. By one estimate, the bill would cull about 870 names from the more than 13,000 on the site, in addition to future offenders in the same situation.

Those offenders would still be listed on the registry itself, accessible to law enforcement and anyone from the public who requests the information. But the bill would allow the offenders to petition for complete removal from the registry starting five years after the end of their sentences.

“These kids have served their debt to society. They are adults now and haven’t done anything wrong since,” said Rep. Dave Hinson, R-St. Clair, a co-sponsor of the measure. He and others note that listed offenders have high unemployment rates because many employers won’t hire them. “We’re just trying to give them another shot at being productive citizens.”

Nixon, a Democrat, vetoed the bill in July, arguing that it makes no distinction between relatively minor offenders and those who used force or violence. In a news conference at St. Louis police headquarters last week, defending the veto amid the backdrop of uniformed officers, the governor warned that the measure could make Missouri a haven for sex offenders from other states who want to hide from their pasts....

In Missouri, and nationally, the issues connected to sex-offender registries — who should be on them, how long they should stay listed — have been in flux for years, with opposing interests battling to tighten or loosen the requirements.

The concept behind the lists is that because of the high rate of repeat offenses among sex offenders, the public needs to be warned of their whereabouts even after their sentences are served. Civil libertarians have long argued that this amounts to an unconstitutional open-ended punishment, but courts have generally upheld the registries....

Missouri’s system is tougher than some because once a person is on the list, he or she is on it for life, regardless of the severity of the original crime or the offender’s age at the time. Illinois, in contrast, has a lifetime tier and a 10-year tier, based on the details of the crime. People who commit crimes as juveniles have to register, but they aren’t listed on the registry’s public website....

Critics claim that the registry nets are cast so widely they often catch people who most would agree aren’t sexual threats. One commonly cited example are the so-called “Romeo and Juliet” offenders, who had consensual sex with teenage lovers, sometimes when they themselves were teenagers. Critics say those pitfalls in the system are especially ominous in Missouri, where juvenile crimes are listed for life.

August 27, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack

Tuesday, August 13, 2013

New Nebraska study suggests sex offender registry changes pushed by feds may do more harm than good

Ne-sex-offender-recidivism-report2-p1-smallAs reported in this notable local piece, headlined "UNO report: Nebraska sex offender law 'founded more on public emotion than good science'," an important new study suggests that state sex offender registry laws have perhaps been made less effective as a result of reforms prodded by new federal sex offender laws. Here are highlights from the report on the report:

A newly released report questions whether public safety has improved since Nebraska adopted a state law that requires all convicted sex offenders to be listed on a public website.

The law, known as the Adam Walsh Act, was passed in 2009, but has been criticized as being too harsh on former offenders who committed minor crimes, are low risks to reoffend and have now become productive, law-abiding citizens....

On Monday, a report done by the University of Nebraska at Omaha’s Consortium for Crime and Justice Research concluded that the Adam Walsh Act “was founded more on public emotion than good science, which is its fundamental shortcoming.”

The 58-page document stated that Nebraska’s previous system of sex-offender registration, which required only that the highest risk offenders be listed publicly, “did not seem to be broken.” The report, though, stated that it could not be discerned if the previous, or new, registration system was superior in deterring repeat sex offenses.

The adoption of the Adam Walsh Act in Nebraska was controversial and spawned a lawsuit by a group of convicted sex offenders, who said it violated their constitutional rights. It was also praised for removing the subjective decision of whether an offender was at low or high risk to reoffend....

Prior to 2009, only the names and photographs of sex offenders who had committed the most serious offenses and were deemed by the patrol as most likely to reoffend were publicized on the patrol’s website. Under the old system, those who committed minor offenses and were considered a low risk were required to register with law enforcement agencies, but their information wasn’t made public.

Nebraska’s Adam Walsh Act, Legislative Bill 285, required that all sex offenders — low risk and high risk — have their photos and addresses posted on the state website, and to report to local law enforcement officials. The photos are to stay for 15 years for misdemeanor offenses, but as long as 25 years to life for more serious offenses.

The Legislature’s Judiciary Committee two years ago discussed whether to exclude low-risk offenders from the public website, but instead decided to seek more information, via the UNO report, which cost $60,000....

State Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee, said the UNO report provides better data for lawmakers on which to judge the effectiveness of sex offender registries. He said his committee may look at revamping the registration requirements of lower-risk offenders, but that overall, the report showed him that it’s not necessary to repeal the entire Adam Walsh Act. “I don’t see that changing registration laws and going back to tiering them is the answer,” Ashford said.

The senator added that the report’s data will aid his effort to reform state criminal sentences to ease the state’s chronic prison overcrowding. Treating sex offenders outside of prison must be considered, Ashford said, because among state prison inmates, sex offenders make up one of the largest categories....

Among the UNO report’s other findings:

» Recidivism rates for sex offenders were low — more than 97 percent do not reoffend — but were lower following the passage of the Adam Walsh Act. For instance, the recidivism rate for Level 2 (medium-risk) offenders was 0.5 percent after passage of the act and 2.5 percent before....

» Registries that show the addresses of offenders could provide a false sense of security because most sex offenders do not commit crimes in their own neighborhoods. Only 7 percent of such crimes were committed within a mile of an offender’s residence.

The full report, titled simply "Nebraska Sex Offender Registry Study," is available at this link.

August 13, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Monday, June 03, 2013

Upon second thought, split South Caroline Supreme Court (sort-of) upholds mandatory lifetime GPS monitoring for sex offender

In this post just over a year ago, I noted that the South Carolina Supreme Court issued an interesting (and somewhat confusing) ruling in SC v. Dykes which declared unconstitutional some apsects of state law concerning GPS tracking of sex offenders.  Then, in this post from last September, I noted on the rehearing of this case by South Carolina Supreme Court.  And now, thanks to this new post at The Volokh Conspiracy, I have discovered that a new Dykes decision was handed down last week. 

The ruling is available at this link, and here is how the majority opinion now gets started:

Jennifer Dykes appeals the circuit court's order requiring that she be subject to satellite monitoring for the rest of her life pursuant to sections 23-3-540(C) and (H) of the South Carolina Code of Laws (Supp. 2011).  We affirm as modified.

Section 23-3-540 represents a codification of what is commonly referred to as Jessica's Law. Many states have some version of this law, which was enacted in memory of Jessica Lunsford, a nine-year-old girl who was raped and murdered by a convicted sex offender in Florida. Across the country, these laws heightened criminal sentences and post-release monitoring of child sex offenders. The specific issue presented in this case concerns the mandate for lifetime global positioning satellite monitoring with no judicial review. The complete absence of judicial review under South Carolina's legislative scheme is more stringent than the statutory scheme of other jurisdictions. A common approach among other states is either to require a predicate finding of probability to re-offend or to provide a judicial review process, which allows for, upon a proper showing, a court order releasing the offender from the satellite monitoring requirements. See generally, N.C. Gen. Stat. Ann. § 14-208.43 (West 2010) (providing a termination procedure one year after the imposition of the satellite based monitoring or a risk assessment for certain offenders). While we hold that the statute's initial mandatory imposition of satellite monitoring is constitutional, the lifetime requirement without judicial review is unconstitutional. 

A lengthy dissent to this notable new version of the Dykes ruling gets started this way:

Because I believe Dykes' status as a sex offender does not diminish her entitlement to certain fundamental rights, I would hold section 23-3-540(C) is unconstitutional because it is not narrowly tailored. I express no opinion on the constitutionality of section 23-3540(H) because that subsection was never challenged and is thus not before us.  Dykes' argument is, and always has been, that subsection (C) of 23-3-540 — the provision requiring lifetime satellite monitoring for persons who violate a term of probation and were convicted of committing criminal sexual conduct with a minor in the first degree or committing or attempting a lewd act upon a child under sixteen — violates her substantive due process rights by imposing monitoring without any showing of her likelihood to reoffend.  By invalidating a statutory provision not challenged, the majority ignores those settled principles of error preservation and appellate jurisprudence, and awards Dykes a consolation prize she has never requested and arguably has no standing to accept.

Prior related post:

June 3, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Sunday, June 02, 2013

Justifiable praise for Virginia Gov for new order restoring some felon voting rights

Today's New York Times has this notable editorial headlined "Restoring the Vote in Virginia." Here are excerpts:

Gov. Bob McDonnell of Virginia enlarged democracy on Wednesday when he announced an order requiring the automatic restoration of voting rights for nonviolent offenders who have historically had to fight through a bureaucratic maze to gain access to the polls.

Governor McDonnell’s order, which could cover more than 100,000 people, reflects a growing awareness that disenfranchisement serves no rehabilitative purpose — and may, in fact, contribute to further criminal behavior by forcing former offenders to the margins of society.

In all, nearly six million Americans — about 2.5 percent of the voting-age population — are barred from voting by a confusing patchwork of state laws that strip convicted felons of the right to vote, often temporarily, but sometimes for life.  Nearly two dozen states have softened their disenfranchisement policies since the late 1990s, with several states repealing or scaling back lifetime bans.

But the practice of barring offenders from the polls remains a pronounced and malignant problem in the South, where it was used starting in the late 19th and early 20th centuries to curtail the political power of African-Americans.  During that period, state legislatures in the South went so far as to disenfranchise citizens for what they viewed as “Negro crimes,” like theft, while exempting defendants convicted of “white crimes,” including fighting in the streets and even murder.

The burden of disenfranchisement continues to fall heavily upon blacks generally, but especially blacks in the South....

Mr. McDonnell, a Republican who was once a prosecutor, saw firsthand how disenfranchisement, combined with other obstacles, makes it harder for former offenders to forge lives outside of prison, and he has worked diligently to address the issue.

Under his order, people convicted of nonviolent felonies will have their right to vote restored if they have completed their sentences, satisfied court-ordered conditions and have no pending felony charges. Although details remain to be worked out, this important move helps restore fundamental rights for a neglected part of the population.

June 2, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, May 10, 2013

Notable new Oregon bill to allow some young sex offenders to get off registry

In this recent post about the Second Amendment rights of registered sex offenders prompted a lengthy comment thread about who does and does not end up on sex offender registries.  With that discussion fresh in mind, I found this AP story about a bill making its way through the Oregon legislature interesting:

Some young offenders convicted of having sex with underage partners would be able to request the crime be removed from their records under a bill narrowly passed by the Oregon House on Wednesday. Voting 31 to 27, the House sent the bill to the Senate with little discussion.

Under the bill, in order for adult offenders to apply to have their records erased, coercion or force could not have been used in the sex act. Other conditions include completion of all required court-ordered programs and treatments.

Proponents say the current punishment for such sex offenders does not fit the crime. Opponents say people convicted of sex crimes often reoffend and should not be able to have their records expunged. "Individuals who commit sex offenses ... this isn't their first time and it won't be their last," said Crook County District Attorney Daina Vitolins, who opposes the bill on behalf of the Oregon District Attorneys Association. To say an act is consensual when it involves a person who is too young to give consent is indefensible and minimizes the law, Vitolins said.

For offenders to have their records cleared under the proposed law, they could be no more than five years older than the victim, and the victim must be at least 14. For sex crimes committed by a minor, the victim must be at least 12 and the age difference can be no more than three years.

House Speaker Tina Kotek, a sponsor, brought the legislation forward after hearing from a constituent who was 14 when his friend's parents reported him to the authorities for engaging in inappropriate behavior — which did not involve intercourse — with their young daughter.  "This is the difference between a life of hopelessness and a future for this individual," the Portland Democrat told lawmakers last month.

Among those testifying for the bill was Matthew Shettles, who served three years' probation on a charge of sex abuse for having sex with his girlfriend in 2004 on the night of his high school graduation. In written testimony, Shettles said he had just turned 18 at the time and she was five weeks shy of 15.  A counselor learned of the encounter and was required by a mandatory reporting law to inform authorities, he said.

He said having a sex crime on his record has made it difficult to get hired and rent an apartment. Employers and housing agencies often run criminal background checks.  "It doesn't seem reasonable that a guy who had sex with his girlfriend should have to pay for the rest of his life," Shettles said in the written testimony.

Under the bill, only sex crimes that meet a specific set of requirements could be erased from an offender's record.  Among other things, the person must have successfully applied to be removed from the state's sex offender registry and cannot have been convicted of other serious crimes.

May 10, 2013 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 (7) | TrackBack

Monday, May 06, 2013

Don't registered sex offenders need gun rights for personal self-defense more than others?

The question in the title of this post is my initial reaction to this big newpaper story from Iowa, headlined "50 sex offenders have gun permits: Law enforcement is concerned that state law allows offenders to easily obtain permits."  Here are excerpts from the lengthy Des Moines Register story,  which is less than fully informative about legal matters, but provides a lot of interesting facts nonetheless:

Joshua Duehr is one of more than 50 sex offenders in Iowa who can carry a gun in public. “I don’t leave the house without one,” said Duehr, who lives in Dubuque.

It’s legal — and it’s news that has surprised some state lawmakers and alarmed a few Iowa and national law enforcement officers.  An FBI official, the president of the Iowa State Sheriffs’ & Deputies’ Association, the president of the Iowa State Police Association and two state lawmakers told The Des Moines Register they have public safety concerns after learning that a two-year-old state law on gun permits allows registered sex offenders to obtain a weapons permit....

Some, if not most, applications by sex offenders for permits to carry weapons would have been denied by county sheriffs before 2011, according to officials from the Iowa Department of Public Safety.  But under a two-year-old state law, sheriffs no longer have discretion to reject such applications.

The law change means people convicted of misdemeanor sex crimes can now walk the streets, malls or virtually any public place in the state while carrying a gun.  Almost all of the sex offenders on the Register’s list were convicted of misdemeanors such as lascivious conduct with a minor or assault with intent to commit sexual abuse.

But the Register found three men convicted of felony sex crimes who had permits to carry weapons in public.  Two of those men had their permits revoked by sheriffs after the Register asked about their situations....

Some sheriffs were aware that sex offenders are carrying weapons in public, primarily because they issue the permits and have firsthand knowledge about the issue.  But other professionals in Iowa’s law enforcement community were caught off guard.

Rob Burdess, a Newton police detective and the president of the Iowa State Police Association, was unaware that sex offenders are being issued weapon permits until he was asked about it by the Register.  He noted that people with felonies or domestic abuse convictions are typically unable to obtain weapon permits, so he questions the logic of allowing sex offenders — even those convicted of non-felony offenses — to carry weapons in public....

[A] review of states surrounding Iowa found that some sex offenders can obtain permits to carry weapons even though authorities said they aren’t aware of a large number being issued.  Those states — including Nebraska, Missouri and Wisconsin — have laws similar to Iowa’s that do not specifically exclude sex offenders from obtaining such permits. Minnesota law, however, makes it a misdemeanor for a person required to register as a sex offender to carry a handgun.

Just as state laws vary, so do opinions about whether armed sex offenders inherently pose more of a risk than other citizens.  Sex offense recidivism rates are much lower than commonly believed, according to legislative testimony given in multiple states by Jill Levenson, an associate professor at Lynn University in Florida.  She is frequently recognized as a national expert on sexual violence....

National uniform crime data from 2006 — the most recent data available — show that about half of all reported sex offenses included a weapon of some form (including the use of fists) but less than 1 percent of all reported sex offenses included the use of a firearm, according to Jason Rydberg, a graduate student at Michigan State.  Iowa numbers mirror the national trend.  Of the roughly 5,750 people on Iowa’s sex offender registry, 47 — or less than 1 percent — used guns in their crimes, according to data from the Iowa Department of Public Safety....

The Association for the Treatment of Sexual Abusers, a national organization focused on the prevention of sexual abuse, generally advocates for cases to be reviewed individually when assessing if a sex offender is likely to reoffend or jeopardize public safety.  “There’s no blanket way of stating that sex offenders are more dangerous than everybody else,” said Maia Christopher, executive director of the association.

Iowa Rep. Clel Baudler, R-Greenfield and a former state trooper, isn’t reassured by the type of research offered by Levenson or groups like the Association for the Treatment of Sexual Abusers.  Until he was contacted for this article, Baudler was unaware that the new gun permit law he advocated for in 2010 has allowed dozens of sex offenders to obtain weapon permits....

An Iowa sheriff may deny a permit to carry a weapon if he believes probable cause exists that the person is likely to use a weapon in a way that would endanger themselves or others.  Those types of denials typically must be based on documented actions from the past two years.  Iowans who believe sheriffs have wrongly rejected their applications for a weapon permit may appeal.  Each appeal, generally reviewed by an administrative law judge, can cost a county government and taxpayers hundreds of dollars....

The cost and the real possibility of losing a case is one reason sheriffs don’t deny permits to carry weapons — even in cases where they have reservations — several sheriffs told the Register.

Washington County in January issued a permit to acquire a weapon to Ronald Nicholis Hahn Jr., who has been on the sex offender registry since 2005 because he was convicted of indecent exposure.  Dunbar said he approved the permit because Hahn passed background checks.  Hahn, 51, said he poses no threat to public safety and that he uses guns for hunting.  “My offense happened seven or eight years ago and it has nothing to do with weapons, so why should I be denied the ability to purchase a gun?” Hahn asked.

Rep. Matt Windschitl, R-Missouri Valley, indicated that he believes Iowa’s new weapons permit law doesn’t need to be revised to specifically ban sex offenders.  People convicted of felonies, including sex offenders, are already prohibited from obtaining a permit, he emphasized. “If their local sheriff does not have probable cause to restrict that person under current law from being able to obtain a permit, then that’s the situation at hand,” said Windschitl, a gunsmith who has advocated for multiple pro-gun bills.

Aggravatingly, this story fails to note that it is a serious federal crime, subject to up to 10 years imprisonment, for any and all persons convicted of a felony or a domestic violence misdemeanor from even possessing a gun. Thus, as the story indirectly notes, only persons without a felony or domestic violence conviction is even lawfully able to possess a gun, let alone get a lawful state permit for one. (I find notable that somehow three sex offender felons were able to get an Iowa gun permit, which perhaps highlights the need for background checks on how good current background checks are in the permit-issuance process in Iowa.)

More to the point of the question in the title of this post, if we think the Second Amendment right to bear arms is linked in some important and significant way to the natural right of personal self-defense (as Heller suggested), a reasonable claim might be made that it would be uniquely unconstitutional to deny gun permits to otherwise eligible persons on a state sex offender registry. There has long been considerable anecdotal evidence of considerable vigilante violence directed toward persons based simply on their presence on a sex offender registry. Given the history of private violence directed toward sex offenders — not to mention the possibility that local law enforcement might not be too quick to come to the aid of someone they know is a registered sex offender — I can fully understand why Joshua Duehr and other low-level registered sex offender might be afraid to move around in public without packing heat to potentially aid any efforts to exercise their natural right of self defense.

Though I do not fancy myself a Second Amendment expert, I wonder if a state law like Minnesota's  prohibiting misdemeanor sex offenders from having a firearm in constitutional in the wake of Heller and McDonald.  If and when a low-level sex offender in Minnesota or elsewhere could reasonably document a history of serious personal threats of serious violence directed toward him because of his placement on the registry and asserted a genuine belief in his need for a firearm in order to protect himself, could a state really require his name and address to stay on the sex offender registry while also denying him a right to keep and bear arms to defend himself?

May 6, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (90) | TrackBack

Wednesday, May 01, 2013

New big Human Rights Watch report assails placing juve sex offenders on registries

Us0513_reportcoverAs reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:

Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author.  "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."

The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries.  One of the boys, from Flint, Mich., killed himself even after being removed from the list....

The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said.  "Many have a hard time finding — and keeping — a job, or a home."

According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....

Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries.  Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.

According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries.  Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.

The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....

Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.

"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...

Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul.  "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said.  "That's more important than the registry."

The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:

This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.

May 1, 2013 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Monday, April 22, 2013

"Defensible Disenfranchisement"

The title of this post is the title of this newly posted article by Mary Sigler now available via SSRN.  Here is the abstract:

As many commentators have noted, the practice of felon disenfranchisement — denying the right to vote to some or all of those convicted of a felony — is widespread and familiar, but, at least in the modern context, also short of defenders.  Indeed, apart from a handful of vocal public officials, a case for disenfranchisement is rarely articulated at all. Instead, critics have occupied the field largely unchallenged, arguing that felon disenfranchisement is illiberal and undemocratic, counterproductive, racist, and, in the United States, unconstitutional.

Against these claims, this paper outlines a form of felon disenfranchisement that is consistent with liberal-democratic values.  In particular, I argue that felon disenfranchisement is best conceptualized not as a form or aspect of punishment but as a means of regulating electoral eligibility.  On this view, felons render themselves liable to disenfranchisement because they have violated the civic trust that makes liberal democracy possible.  Although the long history of disenfranchisement features extreme forms of exclusion and reflects a range of odious and unconvincing rationales, a more defensible version, grounded in the liberal and republican values of the Anglo-American tradition, would apply to a narrower range of offenders and include a meaningful opportunity for restoration. In this way, the temporary exclusion of serious offenders from the electorate has the potential to affirm, rather than betray, our commitment to liberal-democratic community.

April 22, 2013 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5) | TrackBack

Thursday, March 14, 2013

Third Circuit panel discusses at length all the problems with SORNA

The start of the Third Circuit panel's lengthy opinion today in US v. Reynolds, No. 08-4747 (3d Cir. Mar. 14, 2013) (available here), explains the current mess that is certain federal sex offender registration laws better than I could. Here goes (with footnotes removed):

This case returns to us after the Supreme Court’s review in Reynolds v. United States, 132 S. Ct. 975 (2012). Remand requires that we reach the merits of Reynolds’s claim that the regulatory rule upon which his indictment was based was promulgated in violation of the Administrative Procedure Act (“APA”).  This claim gives rise to three questions: (1) What is the appropriate standard of review of an agency’s assertion of good cause in waiving the APA’s notice and comment requirements?  (2) Did the Attorney General have good cause to waive these requirements in promulgating a rule governing the retroactivity of the Sex Offender and Registration Notification Act’s (“SORNA”) registration requirements?  (3) If the Attorney General lacked good cause to waive the requirements, was Reynolds prejudiced by the failure to comply with the APA’s notice and comment requirements?

The courts of appeals are divided on each of these questions.  On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General’s actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question.  On the second question, the Fourth and Eleventh Circuits have held that the Attorney General had good cause to waive notice and comment, while the Fifth, Sixth, and Ninth Circuits have held that he did not.  On the final question, the Fifth Circuit has held that the Attorney General’s lack of good cause does not prejudice defendants, while the Sixth Circuit has held that it is prejudicial.

We conclude that we need not decide the appropriate standard of review today because the Attorney General’s assertion of good cause cannot withstand review even under the most deferential standard available.  We also conclude that the Attorney General’s lack of good cause is prejudicial to Reynolds.  Accordingly, we will vacate Reynolds’ conviction.

March 14, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Wednesday, February 20, 2013

Does Chaidez expand the reach of Padilla even while rejecting its retroactive application?

As noted in this prior post, the Supreme Court handed down four criminal justice decisions today. The most notable and potentially consequential ruling came in Chaidez v. US (available here) in which the Court, per Justice Kagan representing seven votes and speaking for six Justices (with Justice Thomas concurring separately), ruled that the Supreme Court's 2010 decision Sixth Amendment decision in Padilla is not to be applied retroactively to cases which were final when Padilla was handed down. 

Upon first blush, this ruling might seem a big loss for defendants, and it is for those like petitioner Roselva Chaidez, who hoped to undo her guilty plea because long ago she was poorly advised by her lawyer concerning the immigration consequences of her conviction.   But for those in the defense bar eager to see the Padilla Sixth Amendment rule expanded to cover other forms of collateral consequences, I think there more to like than dislike in Chaidez.  Throughout her opinion for the Court, Justice Kagan seems careful to avoid stating or even suggesting that Padilla is only about the unique "collateral consequence" of deportation.   Especially notable in this regard is a phrase on pp. 10-11 of the slip opinion which seems to state that "Padilla’s holding [is that] the failure to advise about a non-criminal consequence could violate the Sixth Amendment" (my emphasis added).

Though I have not followed closely the application of Padilla in lower courts, my sense is that at least a few courts have been keen to hold or suggest that the Padilla Sixth Amendment rule applies only to the unique collateral consequence of deportation.   After Chaidez, it should be at least a bit harder for lower courts to limit Padilla's prospective application to only immigration consequences.

February 20, 2013 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

SCOTUS decides Padilla ruling on IAC claims is not retroactive in Chaidez (and lots of other CJ stuff)

Sentencing and habeas fans have some important SCOTUS action today (after yesterday's Fourth Amendment fun).  Most significantly, as reported effectively via SCOTUSblog:

We have [an] opinion ... in Chaidez v. U.S. The opinion is by Kagan. Seventh Circuit is affirmed.  The Court's decision in Padilla v. KY is not retroactive for cases pending on direct review when Padilla was decided.  It is seven to two.  Justice Thomas concurs in the judgment only. Justice Sotomayor dissents, joined by Ginsburg....

Padilla required defense attorneys to inform defendants about the possible effects of a guilty plea on their immigration status.  The Chaidez opinion can be found here.  So Padilla does not apply retroactively to cases that are already final on direct review.

There are lots more criminal ruling coming over the wire this morning as well, and here are snippets (and links) to the other criminal justice decisions handed down by SCOTUS today:

The second case is Evans v. Michigan. Decision is by Justice Sotomayor, vote is eight to one, with Alito dissenting. Michigan Supreme Court is reversed. Double Jeopardy Clause bars retrial for Evans's crime. The judge had directed a verdict of not guilty during the trial based on a legal error. That kind of acquittal, the Court says today, bars retrial. The opinion in Evans is up here....

We have the third opinion, in Johnson v. Williams. The opinion is by Justice Alito. The result is unanimous, although Scalia concurs in judgment only. The Ninth Circuit is reversed.  Here is the holding: Under the habeas statute, when a state court rules against a defendant in an opinion that rejects some of the claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits.  Read Johnson v. Williams here.

We have the fourth opinion, in Henderson v. United States. Justice Breyer has the opinion. The decision of the Fifth Circuit is reversed.  The vote is six to three; Scalia dissents, joined by Thomas and Alito.  The Court holds that regardless of whether a legal question was settled or unsettled at the time of trial, an error is plain within the meaning of the federal rules as long as the error was plain at the time of appellate review.  The Henderson opinion is here.

As the headline to this post suggests, for sentencing fans, I believe Chaidez is the most notable and consequential of the quartet of criminal justice rulings from SCOTUS this morning.  But, after I likely spend much of the day reading all of these opinions, I will report on anything I find within this big batch of mixed results that might change my view.

February 20, 2013 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, January 23, 2013

Seventh Circuit finds unconstitutional Indiana statute prohibiting sex offenders from social media

The Seventh Circuit today handed down a significant new media and sex offender First Amendment ruling in Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (7th Cir. Jan 23, 2013) (available here).  Here is how the 20-page unanimous panel ruling gets started:
A recent Indiana statute prohibits most registered sex offenders from using social networking websites,instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.

I am pretty sure this is the first significant circuit court constitutional ruling on this kind of state sex offender internet prohibition, and a quick skim suggests that this Doe ruling is a fairly thorough and thoughtful review of the challenging legal and policy issues raised in this setting. I would guess that Indiana will seriously consider seeking en banc review and/or a cert petition in an effort to preserve its statute, but I would also predict that the Justice may think these issues ought to percolate more before granting review.

UPDATE This Politco piece about the Doe ruling provides some information about similar rulings and a statement from the Indiana AG in reaction to the decision:

A similar law in Louisiana was thrown out in February of last year, though the state then passed a revised law requiring sex offenders to disclose their status on social networks, and a Nebraska judge in 2009 blocked parts of a sex offender law that restricted Internet access.

Indiana officials did not know Wednesday whether they would appeal the decision.  “The Indiana Legislature made a policy decision in 2008 that the state’s reasonable interests in protecting children from predators outweighed the interest of allowing convicted sex offenders to troll social media for information.  We have worked with county sheriffs and prosecutors in our defense of the legal challenges to these protections of our children, and we will need to review this 7th circuit ruling to determine the state’s next steps,” Indiana Attorney General Greg Zoeller said in a statement.

January 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, December 10, 2012

Distinguishing Padilla, Pennsylvania Supreme Court finds no Sixth Amendment problem with lack of pension plea advice

An interesting case involving a plea that led to the loss of a pension for a school teacher has now led to an interesting set of opinions from the Pennsylvania Supreme Court in Commonwealth v. Abraham, No. 36 WAP 2010 (Pa. Dec. 10, 2012) (links to majority opinion, concurrence one and two, and dissent).  Here is the set up via the start of the majority opinion:

Joseph Abraham was a high school teacher in the Pittsburgh public school system. In 2008, one of his students alleged he offered her $300 to have sex with him and touched her buttocks; she further stated he gave her one of his business cards and wrote his private cell phone number on it.  After these allegations surfaced, appellee, who was 67 years old, retired from teaching and began receiving pension payments of $1,500 per month.  Shortly after appellee retired, he was charged for the above incident. Pursuant to a negotiated agreement, appellee pled guilty to corruption of a minor and indecent assault of a person less than 16 years of age.  He was sentenced to probation; no direct appeal was filed.

Because the crime of indecent assault of a person less than 16 years of age is one of the enumerated offenses in the Public Employee Pension Forfeiture Act (PEPFA), 43 P.S. §§ 1311-1315, appellee forfeited his pension when he pled guilty to this charge.  He filed a motion to withdraw his plea nunc pro tunc, alleging he was not informed of his right to seek withdrawal of his plea or of the possible sentences he faced. The trial court denied the motion.

Appellee filed a timely PCRA petition alleging plea counsel was ineffective for failing to inform him he would forfeit his pension upon pleading guilty.  The PCRA court, after giving the required notice pursuant to Pa.R.Crim.P. 907(1), dismissed the petition without a hearing. In its Pa.R.A.P. 1925(a) opinion, the PCRA court stated the loss of appellee’s pension was an issue collateral to the plea; thus, under Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 1989), plea counsel’s failure to explain this consequence to appellee was not relevant to whether his plea was knowing and voluntary.  Accordingly, the PCRA court held counsel was not ineffective.

On appeal, the Superior Court reversed, holding a recent United States Supreme Court decision, Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), abrogated Frometa, which held deportation was collateral consequence of a guilty plea and therefore did not need to be explained to the defendant.  The Superior Court noted Padilla, which also dealt with deportation following entry of a guilty plea, held such consequences were so intimately connected with the criminal process that a direct versus collateral consequences analysis was ill suited to evaluate an ineffectiveness claim arising in this context.  Commonwealth v. Abraham, 996 A.2d 1090, 1092 (Pa. Super. 2010)....

We granted the Commonwealth’s Petition for Allowance of Appeal to determine:

(1) Whether, in light of Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473 (2010), the distinction in Pennsylvania between direct and collateral consequences to define the scope of constitutionally “reasonable and professional assistance” required under Strickland v. Washington, 486 U.S. 668 (1984) is appropriate?

(2) If so, whether the forfeiture of a pension that stems from a public school teacher’s negotiated plea to crimes committed in the scope of his employment is a collateral consequence of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise?

The various opinions reach various in Abraham reach various conclusions on these questions, but here is the heart of the analysis of the majority:

Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation...

Our assessment of the above factors leads us to conclude PEPFA’s pension forfeiture provisions are not so punitive in force or effect as to negate the legislative intent that it be a civil, remedial provision. PEPFA is not punitive, and is thus a collateral consequence of appellee’s guilty plea.

Because counsel cannot be deemed ineffective for failing to advise a defendant regarding the collateral consequences of a plea, appellee’s ineffectiveness claim fails. Therefore, we reverse the order of the Superior Court granting appellee a PCRA hearing on the issue of prejudice, and we remand for reinstatement of the PCRA court’s order denying appellee relief.

December 10, 2012 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack