Sunday, October 12, 2014

Documenting a notable California legal crusade against sex offender restrictions

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

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

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

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

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

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

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

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

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

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

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

Monday, September 29, 2014

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

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

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

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

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

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

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

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

Tuesday, September 23, 2014

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 18, 2014

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

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

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

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

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

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

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

Related prior posts:

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

Tuesday, September 09, 2014

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, August 23, 2014

Residency restrictions keep NY sex offenders confined after serving their senetence

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

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

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

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

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

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

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

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

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

Friday, August 22, 2014

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

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

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

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

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

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

Sunday, August 17, 2014

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

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

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

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

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

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

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

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

Friday, August 15, 2014

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

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

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

Tuesday, August 12, 2014

"Sex Offender Laws Have Gone Too Far"

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

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

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

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

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

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

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

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

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

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

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

Wednesday, July 30, 2014

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

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

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

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

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

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

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

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

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

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

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

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

Monday, July 07, 2014

"Do Residency Bans Drive Sex Offenders Underground?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 24, 2014

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

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

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

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

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

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

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

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

Monday, June 16, 2014

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

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

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

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

June 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Thursday, May 29, 2014

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

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

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

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

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

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

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

Thursday, May 08, 2014

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

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

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

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

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

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

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

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

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

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

Friday, May 02, 2014

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

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

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

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

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

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

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

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

Friday, April 25, 2014

Local California sex offender restrictions legally suspect after California Supreme Court (non)action

As reported in this local article, earlier this week that California Supreme Court "left intact a lower-court ruling that invalidates local ordinances aimed at restricting the movements of registered sex offenders in dozens of cities statewide." Local lawyers say this (non)action is a big deal:

The court’s decision Wednesday not to hear a case involving a Southern California sex offender means city and county ordinances banning such offenders from public parks and other public areas no longer may be enforced, attorneys say.  Instead, a state law governing where sex offenders on parole may live now stands as the main restriction.

“If I read the tea leaves correctly, it’s probably dead everywhere in California,” Susan Kang Schroeder, chief of staff to Orange County District Attorney Tony Rackauckas said Thursday.

The Orange County District Attorney’s Office had led the effort to tighten restrictions on sex offenders and advised communities in that area on how to enact such ordinances.  “We still believe that we were right on the law and we respectfully disagree,” Schroeder said. “We don’t regret the choices that we made in trying to keep sex offenders out of parks and keep children safe.”

The state Supreme Court’s action stemmed in part from an Orange County case in which a registered sex offender in Irvine went to a tennis court at a public park in violation of a local ordinance.  The offender pleaded guilty, but a public defender appealed the case and won a ruling that state law trumps such local ordinances, Schroeder said.  Her office appealed that to the 4th District Court of Appeal, which agreed with the appellate decision, so the Orange County District Attorney’s Office asked the state Supreme Court to hear the matter.

That court declined to do so Wednesday.  It also declined to hear a second, similar case involving an offender who was cited after going to a picnic at a county park. The move effectively invalidates such local ordinances, Schroeder said, and leaves Jessica’s Law, passed by voters in 2006, as the main enforcement tool over paroled sex offenders. That measure, which also has faced court challenges, prevents sex offenders on parole from living within 2,000 feet of schools and parks.

Santa Maria attorney Janice Bellucci, president of a group called “California Reform Sex Offender Laws,” said the Supreme Court’s move is a “major victory” for efforts to provide more rights for individuals who must register on California’s Megan’s Law list of people with sex offenses in their pasts.  “It means that our people on the registry — and we have over 105,000 now — can now go to public and private places that they could not go to before,” she said.

Bellucci has been waging a legal battle against such ordinances throughout the state and last month filed suit in U.S. District Court in Sacramento seeking to overturn a South Lake Tahoe measure.  The South Lake Tahoe ordinance prohibits sex offenders from being in or within 300 feet of public or private schools, parks, video arcades, swimming pools or other areas where children might congregate.  The ordinance allows for single trips traveling past such spots.

Bellucci said 70 cities and five counties in California have enacted such measures, and she has used a client, Frank Lindsay of San Luis Obispo, a registered sex offender, as the face of her lawsuits against such ordinances....   Bellucci said she views the matter as a “civil rights issue” that ultimately should be addressed by legislators to differentiate between people who made a mistake in their past — such as urinating in public or a young adult having consensual sex with a 17-year-old girlfriend, for example — from predators...

El Dorado County District Attorney Vern Pierson said Thursday that the Legislature has failed to address the need for balanced restrictions, something that may lead to new initiative drives. “This is more than anything else due to the Legislature’s inability to craft appropriate legislation to control the behavior and conduct of sex offenders that are out,” Pierson said.

He added that the county had crafted policies he thought were appropriate and similar to those in Orange County, allowing an offender to get written permission from the sheriff to be in certain public places around children. “I think there’s this misimpression that we want to ban sex offenders from going anywhere and doing anything,” Pierson said. “What we’re attempting to do is deal with the unusual situations where they’re predatory. If they go to an ice skating rink because they want to look at the young children, that’s who we’re trying to prevent from being in that kind of situation.”

April 25, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, April 10, 2014

First Circuit hears argument on whether Eighth Amendment might limit deportation as collateral consequence

This National Law Journal piece, headlined "Court Weighs Whether Deportation Fits Crime," reports on an interesting case that was argued before the First Circuit yesterday.  Here are highlights:

A federal appellate court heard oral arguments Wednesday about whether immigration judges must consider whether deportation amounts to disproportional punishment for a legal permanent resident following a criminal conviction.  The U.S. Court of Appeals for the First Circuit weighed that question in Hinds v. Holder.  

Rogelio Blackman Hinds, 59, a U.S. Marine Corps veteran, is fighting an August 2013 Board of Immigration Appeals ruling upholding his removal.  U.S. Immigration Judge Steven Day ordered Hinds ordered Hinds removed to Panama in March 2013 because of drug and firearms convictions for which he served 18 years in prison.

Hinds claims he should be allowed to stay because he’s lived in the United States for nearly 40 years, is married to a U.S. citizen and fears being targeted by a Panamanian gang to which he says his co-defendant belongs.  Moreover, one of his five adult children is severely mentally and physically disabled and requires constant care.

Hinds also claims severe health problems that may be linked to his military service, including epilepsy, anemia, high blood pressure and post-traumatic stress headaches. His brief argues that the Fifth Amendment and Eighth Amendment, which bans cruel and unusual punishment, require proportionality review....

Amici who have lined up to support Hinds include the Center for Constitutional Rights, the American Immigration Council, the Post-Deportation Human Rights Project at Boston College, the American Civil Liberties Union and a group of law professors.

Judges Jeffrey Howard and O. Rogeriee Thompson sat on the panel with District of New Hampshire Chief Judge Joseph Laplante, sitting by designation.  Howard asked Hinds’ lawyer, Zac Hudson, an associate at Washington’s Bancroft, “What would be the mechanics of doing the balancing you want to have done?”

Hudson replied that if the court ruled in Hinds’ favor without reaching the constitutional questions it “wouldn’t have to delineate a standard.”  The review would be based on the judge’s individual analysis, he said.

Howard then asked Hudson which precedent best supports his argument. “It’s all the due-process cases we cite,” Hudson replied. “Lawful permanent residents have the full protection of the U.S. Constitution.”

Aimee Carmichael of the Justice Department’s Office of Immigration Litigation argued that Hinds wants criminal protections extended to civil proceedings. “The Eighth Amendment does not apply [and he] has not demonstrated that the agency has denied him due process,” she said.

April 10, 2014 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Tuesday, April 01, 2014

"Sex offender housing restrictions do more harm than good"

The title of this post is the headline of this notable Concord Monitor editorial.  Here are excerpts:

Of all the constituents that politicians want to help out, sex offenders probably rank at the very bottom of the list.  But the New Hampshire Senate should summon the courage to do just that. By helping sex offenders, as strange as it sounds, the Senate will end up making life safer for everyone else.

At issue is legislation that would ban cities and towns from placing broad restrictions on where sex offenders may live.  Several communities have attempted such restrictions, and lower-court judges have already struck down two as unconstitutional: one in Franklin and one in Dover.  In both cities, local officials wanted to keep convicted sex offenders from living too close to places where children regularly gather: schools, day care centers and playgrounds.  Several other communities still have such ordinances on the books, among them Tilton, Sanbornton, Northfield and Boscawen.

The impulse to keep sex offenders away from kids via zoning is completely understandable.  But there is strong reason to resist. And there is strong reason to set such policy at the state level, rather than leaving it to individual communities.

A growing body of evidence — gathered not just by civil liberties lawyers, but from law enforcement officers, public officials and child advocacy groups — suggests that residency restrictions are placebo pills at best and counterproductive at worst.  Such ordinances give communities a false sense of security while driving sex offenders underground or into rural areas where they can’t access the services that give them the best chance at rehabilitation....

An Iowa study, for instance, showed that sexual-abuse convictions had remained steady since statewide residency restrictions went into effect five years earlier but that the number of sex offenders failing to register their addresses with local police departments, as the law required, had more than doubled.

When a sex offender has served his sentence, it is in everyone’s interest that he succeed on the outside. Passing this bill would help.

April 1, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (34) | TrackBack

Tuesday, March 25, 2014

Illinois commission advocates against putting all juve sex offenders on registry

As explained in this AP article, headlined "Commission: Remove Juveniles From Sex Offender Registries," a new public policy report urges Illinois officials to no longer require juvenile sex offenders to register. Here are the basics:

Requiring juveniles to register as sex offenders impairs rehabilitation efforts for a crime that very few of them ever commit again, according to a study released Tuesday.  The Illinois Juvenile Justice Commission’s report recommends ending the practice of making offenders younger than 17 add their names to sex-offender registries, which can negatively affect an offender for years.  Every juvenile convicted of a sex crime must register, and 70 percent of the 2,553 currently registered must do so for life, the report said.

The 150-page review of laws and treatment practices regarding juvenile sex crimes calls for the state to abolish the categorical requirement for young offenders’ registration.  The report [available here], which the General Assembly requested in 2012, says sex crimes committed in youth are seldom repeated in adulthood and that individualized, community-based treatment plans are highly effective and more productive than incarceration.

“Automatic, categorical registries do not protect public safety,” commission chairman George Timberlake, a retired chief circuit judge from Mount Vernon, told The Associated Press.  “There’s no evidentiary basis that says they do and more importantly, they have very negative consequences in the effects they have on the offenders’ life, and perhaps the victim’s life.”

Timberlake said the victim, often a family member, loses confidentiality through offender registration and can also suffer from not being able to resume a familial relationship with an offender who is required to register.  He added that a registry might be appropriate based on risk.  Many states offer courts flexibility.

The report recommends developing statewide standards and training for courts and law enforcement professionals for intervening with young sex offenders and victims.  It also calls for a consistent assessment tool for evaluating risks an individual juvenile poses. Also, the report says, offenders whenever possible should be kept in treatment programs in their homes that involve parents as opposed to locking them up.

March 25, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Wednesday, March 19, 2014

Should sex offenders be prohibited from winning lottery jackpots?

The question in the title of this post is prompted by this new FoxNews report headlined "Massachusetts official seeks to prevent sex offenders from collecting large lotto payouts."  Here are excerpts:

A Massachusetts state senator is pushing to close a lottery loophole that allows sex offenders to pocket huge payouts and potentially use their winnings to buy their victims' silence.

"Should someone on the sex offender list purchase a ticket and win, I think we should find a way from preventing them from enjoying the proceeds," state Sen. Richard Moore told The Boston Herald. "This doesn't smell right to start with."

Moore's concern came as it was revealed that a Level 3 serial child predator walked away with a $10 million win in 2008 and used his winnings to buy gifts for a boy he was allegedly abusing. Daniel T. Snay, 62, was convicted four separate times of indecent assault and battery on a person 14 years or older from 1974 to 1987. He pleaded not guilty Monday at his arraignment on charges including indecent assault and battery on a child under the age of 14 and other charges....

"I guess he bought my silence by giving me gifts and stuff," the boy, now 16, told police, according to a transcript released in court, the paper reported. The alleged abuse occurred about the same time he won the lottery and it continued until March 1, 2012, the report said.

Police Chief Jeffrey Lourie said Snay's "windfall aided the commission of the crimes" by helping him gain favor with people. Sam Goldberg, Snay's attorney, told the paper the allegations are "very easy to bring ... especially when you know this is someone who’s already been a lightning rod ... because of the lottery winnings."

The director of the state's lottery told the paper that winnings can be intercepted by the IRS or Department of Revenue, but a payout cannot be withheld “based on someone’s character."

March 19, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (42) | TrackBack

Friday, March 07, 2014

"Criminal Records, Race and Redemption"

The title of this post is the title of this notable paper I just noticed via SSRN authored by Michael Pinard. Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment.  Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record.  However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions.  These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records.

To address these issues, this article proposes a redemption-focused approach to criminal records.  This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records.  Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

March 7, 2014 in Collateral consequences, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (5) | TrackBack

Tuesday, February 25, 2014

Notable emphasis on CJ reform in AG Holder speech to National Association of Attorneys' General

In Washington DC this morning, Attorney General Eric Holder delivered these remarks at the National Association of Attorneys General Winter Meeting. Here are sections that should be of distinct interest to sentencing fans:

In recent years, no fewer than 17 states — supported by the Department’s Justice Reinvestment Initiative, and led by state officials from both parties — have directed significant funding away from prison construction and toward evidence-based programs and services, like supervision and drug treatment, that are proven to reduce recidivism while improving public safety.  Rather than increasing costs, a new report — funded by the Bureau of Justice Assistance — projects that these 17 states will save $4.6 billion over a 10-year period.  And although the full impact of our justice reinvestment policies remains to be seen, it’s clear that these efforts are bearing fruit — and showing significant promise across the country.

From Georgia, North Carolina, Texas, and Ohio — to Kentucky, Arkansas, Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources.  And I believe that the changes that have led to these remarkable results should be carefully studied — and emulated.

That’s why, last August — in a speech before the American Bar Association in San Francisco — I announced a new “Smart on Crime” initiative that’s allowing the Justice Department to expand on the innovations that so many states have led; to become both smarter and more efficient when battling crime, and the conditions and choices that breed it; and to develop and implement commonsense reforms to the federal criminal justice system.

Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal, drug-related crimes will now be reserved for the most serious criminals. We’re taking steps to advance proven reentry policies and diversion programs that can serve as alternatives to incarceration in some cases.  And as we look toward the future of this work, we’ll continue to rely on your leadership — and close engagement — to keep advancing the kinds of data-driven public safety solutions that many of you have championed for decades.

This also means making good on our commitment to provide formerly incarcerated people with fair opportunities to rejoin their communities — and become productive, law-abiding citizens — once their involvement with the criminal justice system is at an end.  With the Justice Department’s strong support, the ABA has done important work in this regard, cataloguing tens of thousands of statutes and regulations that impose unwise collateral consequences — related to housing, employment, and voting — that prevent individuals with past convictions from fully reintegrating into society.  As you know, in April 2011, I asked state attorneys general to undertake similar reviews in your own jurisdictions, and — wherever possible — to mitigate or eliminate unnecessary collateral consequences without decreasing public safety.  I’ve made the same request of high-ranking officials across the federal government.  And moving forward, I’ve directed every component of the Justice Department to lead by example on this issue — by considering whether any proposed rule, regulation, or guidance may present unnecessary barriers to successful reentry.

Two weeks ago, at Georgetown University Law Center, I called upon state leaders and other elected officials to take these efforts even further — by passing clear and consistent reforms to restore voting rights to those who have served their terms in prison or jail, completed their parole or probation, and paid their fines.  I renew this call today — because, like so many other collateral consequences, we’ve seen that the permanent disenfranchisement of those who have paid their debts to society serves no legitimate public safety purpose. It is purely punitive in nature.  It is counterproductive to our efforts to improve reentry and reduce recidivism.  And it’s well past time that we affirm — as a nation — that the free exercise of our citizens’ most fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.

I applaud those — like Senator Rand Paul, of Kentucky — who have already shown leadership in helping to address this issue.  And I encourage each of you to consider and take up this fight in your home states.

February 25, 2014 in Collateral consequences, Criminal justice in the Obama Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, February 11, 2014

"Eric Holder makes case for felons to get voting rights back"

The title of this post is the headline of this new Washington Post report on the latest policy advocacy by the US Attorney General concerning criminal justice reform. Here are the notable details:

Attorney General Eric H. Holder Jr. on Tuesday called on states to repeal laws that prohibit ex-felons from voting after their release from prison, urging reforms that could allow millions more former convicts across the country to cast ballots.

In a speech at Georgetown University Law Center, Holder said: “It is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision.” Current laws forbidding felons from voting make it harder for them to reintegrate into society, he said.

Holder said that current laws forbidding felons from voting make it harder for them to reintegrate into society. He pointed to a recent study, which showed that felons in Florida who were granted the right to vote again had a lower recidivism rate. “These restrictions are not only unnecessary and unjust, they are also counterproductive,” Holder said. “By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes.”

Holder does not have the authority to force states to change their laws, but his request could influence the debate to restore voting rights. His appeal is part of a broader effort currently underway by the Justice Department to reform the criminal justice system, which U.S. officials say often treats minority groups unfairly.

The attorney general said that after the Civil War, laws that prohibit ex-felons from voting were a way for post-Reconstruction states to keep blacks from casting ballots. Today, an estimated 5.8 million Americans are not allowed to vote because of current or previous felony convictions. Of those, nearly 38 percent are black.

The Justice Department said that 23 states since 1997 have enacted voting-rights reforms. They include Nebraska, Nevada, Texas and Washington state.

The Justice Department said that 11 states, including Florida and Kentucky, restrict voting rights for ex-felons. Holder said that 10 percent of Florida’s population is disenfranchised.

Voting-rights activists are trying to change the law in that state to make it easier for “returning citizens” to vote. The push could become a campaign issue in Florida’s gubernatorial election this year. In Kentucky, a bill to restore felon voting rights to those not convicted of certain lascivious or violent crimes gained momentum last month in the state legislature. “These laws deserve to be not only reconsidered, but repealed,” Holder said.

There is even more of note in the full speech given today by AG Eric Holder at Georgetown University Law Center, the text of which is available here. I now have to go teach, so I will not be able to comment further until late tonight, but here are parts of the discussion of voting rights referenced above:

These laws deserve to be not only reconsidered, but repealed. And so today, I call upon state leaders and other elected officials across the country to pass clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines. I call upon experts and legislators to stand together in overturning an unfortunate and outdated status quo.

And I call upon the American people – who overwhelmingly oppose felony disenfranchisement – to join us in bringing about the end of misguided policies that unjustly restrict what’s been called the “most basic right” of American citizenship.

I applaud those who have already shown leadership in raising awareness and helping to address this issue. Later today, this conference will hear from Senator Rand Paul, who has been a leader on this matter. His vocal support for restoring voting rights for former inmates shows that this issue need not break down along partisan lines.

Bipartisan support will be critical going forward because, even in states where reforms are currently taking hold, we need to do even more. And we need to make sure these positive changes are expanded upon – and made permanent.

Some prior related posts:

February 11, 2014 in Collateral consequences, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (35) | TrackBack

Sunday, January 26, 2014

"Sex offender fights registry by registering his registerers"

The title of this post is the headline of this interesting Washington Post article discussing an efforts of, and challenges facing, one registered sex offender seeking to showcase the realities of being a registered person.  Here are excerpts:

If nothing else, Dennis Sobin is not your typical ex-con.

At first glance, he looks like the model returning citizen: After serving more than a decade in prison, Sobin, 70, returned to the District, started a gallery for prison art and ran for mayor. His nonprofit organizations have received grants from George Soros’s Open Society Institute and the National Endowment for the Arts and, in 2010, he appeared on the cover of the Washington City Paper .

But Sobin is also sex offender. A former pornographer who’s appeared on “The Sally Jesse Raphael Show” and “Geraldo,” Sobin was convicted of sexual performance using a minor in 1992 in Florida. So, every 90 days, Sobin must report to D.C.’s Court Services and Offender Supervision Agency (CSOSA), and his photo appears on D.C.’s public registry.

Sobin thinks it’s unfair. So, for his latest act, Sobin has decided to protest his treatment by creating his own online data base and registering the people who monitor him at the sex offender registry. Now, in an unusual case that will be heard on Tuesday, a D.C. Superior Court judge will decide whether a court employee can file a civil protection order to prevent Sobin from posting her photo on his anti-registry registry, www.idiotsregistry.info, and distributing her photograph on fliers.

“Here at www.IdiotsRegistry.info you will find the names of politicians and public figures who have encouraged the creation of, or have refused to denounce, government registration websites that target citizens for harassment,” Sobin’s site reads. “In the tradition of Nazi registration of Jews and Gypsies and the Salem lists of alleged witches, modern government registries are unfair and un-American.”

Stephanie Gray, who works for CSOSA, is asking the court to force Sobin to remove her picture from the site. Sobin, who was under Gray’s supervision until she got another position at the agency, did not mince words when criticizing Gray. “Face of Evil: ‘Registry Specialist’ Stephanie Gray shoots icy stare,” Sobin posted under a photo of Gray. “Gray requested and received a transfer due to the guilt she felt in her loathsome job.”

Sobin said his action was inspired by Supreme Court rulings which hold that sex offender registries are not punitive and do not constitute double jeopardy. “If it’s not punishment to be on a list, we thought we’d put the people who do the registering on a list,” he said.

Gray took another view. “He writes derogatory information about me,” Gray wrote in her request for a protection order. “I have been move[d] from the Sex Offender Registry and he continues to trash the bldg. where I am with pictures he has taken of me without me knowing.”

Should Sobin prevail,“It would send a message to all sex offenders in the District of Columbia,” according to a petition filed by Gray’s attorneys which accused Sobin of stalking. “Convicted criminals required to report to CSOSA could harass them with impunity under the guise of protected political speech.” Gray, through her attorneys, declined comment, as did CSOSA.

Sobin has found an ally: the American Civil Liberties Union, which filed an amicus brief on his behalf. “We think there are some significant First Amendment issues,” said Art Spitzer, legal director of ACLU’s D.C. office, who pointed out that Gray is not alleging physical harm. “Domestic violence laws are supposed to protect people from crimes, but not hurt feelings. . . . People are allowed to embarrass each other and make each other feel bad when making a political point.”...

Should Sobin win, Gray’s civil protection request will be denied, but D.C.’s sex offender registry will not be affected. But, Sobin said, he’ll have struck a blow for free speech and shown the flawed logic behind the registry — even if there’s collateral damage.

“Ms. Gray happens to be a very sensitive, compassionate individual who is on the registration list,” Sobin said. “It’s a war. . . . They’re involved in this registration thing and unless they move themselves out, we’re going to oppose them.”

January 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, January 16, 2014

Orange County DA hoping California high court will rescue local sex offender park ban

As reported in this local article, headlined "D.A. will take sex-offenders fight to state Supreme Court," a California prosecutor is planning to seek review in the Supreme Court of a lower state appellate court ruling that struck down local laws banning sex offenders from parks.  Here are the details:

The Orange County District Attorney's Office plans to go to the California Supreme Court to defend local ordinances that ban registered sex offenders from city parks.  A state appeals court on Friday struck down an Irvine law that barred registered sex offenders from city parks without written permission from police, a ruling that will become legal precedent. The court also struck down a similar Orange County law.

About a dozen other Orange County cities passed similar ordinances banning sex offenders from parks at the urging of District Attorney Tony Rackauckas.  Rackauckas helped craft Orange County's law with county Supervisor Shawn Nelson. “Protecting children from dangerous sex offenders is an ongoing war, and we believe that it's one of the most important jobs we have at the D.A.'s (office),” said Susan Kang Schroeder, Rackauckas' chief of staff.

Janice Bellucci, president of California Reform Sex Offender Laws, said of the pending appeal. “I think they're foolish to do it. They're wasting taxpayer money.”  Bellucci said her organization will urge Orange County cities that adopted similar legislation to pull the laws off their books or face a lawsuit.  

Opponents criticize the ordinances as overly broad and an infringement on civil rights.  They are “unenforceable,” Bellucci said.  “These ordinances give a false sense of security to parents. They don't really protect their children from those who are most likely to assault their children,” Bellucci said....

The Orange County ordinance, which became a model for local cities, made it a misdemeanor for any registered sex offender to enter a county park, beach or other recreational area without permission from the Orange County Sheriff's Department. Those convicted would face six months in jail or a $500 fine.

In Friday's ruling, a panel of judges said state laws regulating sex offenders pre-empt any local ordinances.  State law has long overseen sex-offender registration, the opinion said. State law already regulates where sex offenders may live and also identifies certain sex offenders who must be monitored by law-enforcement via GPS.

Offenders whose victims were younger than 14 may only enter parks where children gather with permission from their parole agents. The laws create a comprehensive system regulating sex offenders' daily lives, the court said.  No outright ban on sex offenders in parks is included in state law, an omission that “manifests a legislative determination that such a ban is not warranted,” the court said. Any such local laws undermine the decisions of the Legislature, the court said.

January 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, January 10, 2014

"A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service?"

The title of this post is the title of this very interesting new empirical paper by James Michael Binnall now available via SSRN. Here is the abstract:

In the United States, a vast majority of jurisdictions statutorily exclude convicted felons from jury service. Justifying these exclusions, lawmakers and courts often cite the inherent bias rationale, which holds that convicted felons harbor a prodefense/antiprosecution pretrial bias that would jeopardize the impartiality of the jury process. The inherent bias rationale has never been the subject of empirical analysis. Instead, authorities seemingly accept the logic of the rationale unconditionally.

This study (1) explores the prevalence, strength, and direction of convicted felons' pretrial biases; (2) compares the group‐level pretrial biases of convicted felons, nonfelon eligible jurors, and nonfelon law students; and (3) examines if and how a felony conviction shapes pretrial biases. The results of this study indicate that a majority of convicted felons harbor a prodefense/antiprosecution bias and, in this way, differ from eligible jurors generally. Yet, the results of this study also show that many convicted felons are neutral or harbor a proprosecution pretrial bias, and that the strength and direction of convicted felons' group‐level pretrial biases are similar to those of other groups of nonfelon jurors. In sum, this study suggests that while felon jury exclusion does not offend applicable constitutional standards, it is an imprecise and perhaps unnecessary practice that may come at substantial costs.

January 10, 2014 in Collateral consequences, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, January 09, 2014

"Are there no limits on Second Amendment rights?"

The title of this post is the title of this new entry by Lyle Denniston at the "Constitution Daily" blog of the National Constitution Center.  After I reprint some excerpts, I will explain why I see more limits on Second Amendment rights than any other right in the Constitution:

In only one place in the Constitution’s Bill of Rights is there a provision that flatly bars the government from regulating one of the protected rights. That is in the First Amendment, declaring that “Congress shall make no law respecting” the rights listed in that Amendment. The “right to keep and bear arms” is not one of those rights; it is contained in the Second Amendment.

The Second Amendment’s text, of course, does say that the right it protects “shall not be infringed.” Is that the same thing as saying that government may pass “no law respecting” gun rights?...

The only place that Americans can look for a binding interpretation of what the Constitution’s words mean – other than to the people acting through the amendment process to make a new constitutional declaration – are the decisions of the U.S. Supreme Court....

Over the time since 1791, when the Bill if Rights was ratified, the Supreme Court has given its blessing to an entire governing edifice that regulates First Amendment rights: the laws of libel and defamation, limits on publishing secret military strategy, regulation of “obscene” and “indecent” expression, and limits on “hate speech.” Famously, the court has said that one has no right to shout “Fire!” in a crowded theater. Even the right to worship freely sometimes is curbed by laws that regulate conduct that has religious meaning.

In contrast to the First Amendment, there is very little constitutional history about the meaning of the Second Amendment. In fact, until just five years ago, the “right to keep and bear arms” was not generally understand as a personal right to have a gun, even for self-defense. It was only in 2008 that the Supreme Court declared that such a personal right does, indeed, exist.

That decision, in the case of District of Columbia v. Heller, is – so far – the most important decision the court has ever issued on the scope of the “right to keep and bear arms.” But in that very ruling, the Court said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.” It went on to say just as clearly that it was not barring the government from imposing “reasonable regulation” on that right.

Is a “reasonable regulation” of gun rights, then, an “infringement” on those rights? If the word “infringement” means to encroach on something, as one does when one “trespasses” on someone else’s private property, that does not support the idea that Second Amendment rights are absolutes. Government can “trespass” on private property to put out a fire, for example....

The Supreme Court, of course, could re-enter into that national debate if it felt a need to clarify just what kind of “regulation” of gun rights is allowed without being found to violate the Second Amendment. Up to now, however, the Court does not seem to sense that need. It has issued only one significant gun rights decision since the 2008 ruling, and that 2010 decision in McDonald v. Chicago expanded the personal right to a gun to exist at the state and local level, as well as at the federal level. The court did not go further to explain what it would allow in gun regulation by state and local governments.

It has been asked, every year since then, to take on a variety of new cases, to answer some of the lingering questions: does the personal right to have a gun extend beyond one’s own home, who can be forbidden to have a gun at all, when can a gun be carried in public in a concealed way, what types of guns or ammunition can be regulated or even banned, what places in a community are too sensitive or too prone to violence to allow guns in them, how can the government trace a gun that has been used in a violent incident, how freely should gun shows be allowed to operate?

However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes.

As regular readers know, I have long highlighted (and lamented) that so far the Second Amendment has been interpreted by lower courts to mean that, if an American ever does one bad thing once (a felony or certain misdemeanors), she can forever be subject to a criminal convction for exercising Second Amendment rights. I know of no other express right set forth in the Bill of Rights that a person forever forfeits based on a single prior bad act. Thus, from my perspective, the Second Amendment is subject to many more rigid limits than any other constitutional right.

January 9, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, January 06, 2014

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

Cross-posted at PrawfsBlawg

January 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Friday, December 20, 2013

Should elected officials be subject to drug tests? And then forced to resign if they fail?

The questions in the title of this post are prompted by this new Politico article headlined "Trey Radel likely won’t resign after leaving rehab." Here are excerpts:

Despite an eventful two months that saw an undercover cocaine bust and a stint in drug rehab, Florida Rep. Trey Radel (R) doesn’t sound like a man who is going to resign.

On the same day he walked out of a Naples, Fla., drug rehabilitation clinic, the freshman congressman — who pleaded guilty to possessing cocaine in November — said he is wrestling with what he describes as a problem with alcohol, and added that he loves “serving” his southwest Florida constituents.  “I’m excited to begin this process of rebuilding your trust and doing what you elected me to do,” Radel said at the news conference.

Radel, a freshman member of the House, was caught buying cocaine from an undercover federal agent near Dupont Circle in October. Radel bought what’s commonly known as an “eight ball” of cocaine from a federal agent, according to court records.  When he realized he was purchasing the drug from a federal agent, he tried to throw it away, the records detail.  When those agents entered his D.C. apartment, Radel handed over more cocaine. He pleaded guilty to possessing the drug in D.C. court in November, and entered a rehabilitation facility on Nov. 21.  He has been on leave from the House.

Radel pledged to answer all questions at the news conference, but declined to detail the timeline of his cocaine use, or answer questions about why he waited nearly a month between getting caught buying cocaine and revealing it to the public.  Radel said he was not with any other member of Congress when he was caught buying cocaine, and said elected officials should be subject to drug tests.  He said he only used cocaine a handful of times.

The court of public opinion isn’t his only judge. The House Ethics Committee is investigating the incident. Radel pledged to “cooperate” with that inquest “in every absolute possible way that I can.”

December 20, 2013 in Celebrity sentencings, Collateral consequences, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (8) | TrackBack

Wednesday, December 11, 2013

Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry

This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts.  Here are the basics:

The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.

The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.

In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....

In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....

The court also said the board is required to ensure that its guidelines are based on "the available literature."

"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.

I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.

December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Tuesday, November 26, 2013

Intermediate NJ appeals panel upholds broad restriction on released sex offender access to social media websites

As reported in this AP article, headlined "NJ panel: Sex offenders can be kept off Facebook," a New Jersey appeals panel handed down today a notable opinion upholding a notable restriction on computer use by released sex offenders. Here are the basics:

A New Jersey appeals court has ruled that paroled sex offenders can be barred from Facebook, LinkedIn and other online social networks.

Two offenders had gone to court to challenge that restriction, saying social networks are important ways to get news, information and find business opportunities.

However, a three-judge panel ruled Tuesday that the offenders can be kept off social network as a term of parole. The judges said they agree that the networks are an important facet of modern life, but said there is a good reason to keep convicted sex offenders off them. "The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior," Judge Jack Sabatino said in his opinion. He noted that the parolees can still get news and buy products online.

The ruling referenced in this article is partially available at this link, and here are excerpts from the start of the opinion:

Appellants J.B., L.A., B.M., and W.M. are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board (the "Parole Board") as of fenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). Represented by the same attorney, appellants challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them. Similar conditions have been imposed on other offenders subject to CSL or PSL, although appellants have not filed a class action.

The terms of supervision mainly being challenged in these related appeals are (1) the Parole Board's restrictions on appellants' access to social media or other comparable web sites on the Internet; and (2) the Parole Board's authority to compel them to submit to periodic polygraph examinations....

For the reasons that follow, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges should they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

I expect the defendants here may be eager to appeal this matter to the NJ Supreme Court and maybe even the US Supreme Court, especially since it appears that the internet use restrictions upheld here are set to last a lifetime.  And though this case might not be the best vehicle, I suspect that SCOTUS will eventually have to consider what restrictions can be poperly place on internet access for released offenders.

November 26, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, November 18, 2013

Ninth Circuit rejects Second Amendment attack on federal crime of gun possession by certain misdemeanants

In a lengthy panel opinion coupled with a notable concurrence, the Ninth Circuit today in US v. Chovan, No. 11-50107 (9th Cir. Nov. 18, 2013) (available here), rejects a defendant's Second Amendment challenge to the federal statute criminalizing gun possession by persons convicted of domestic violence misdemeanors. Here is how the majority opinion starts:

Following the entry of a conditional guilty plea, Daniel Chovan appeals the district court’s denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. § 922(g)(9).  Section 922(g)(9) prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life.  Chovan contends that § 922(g)(9) is unconstitutional both on its face and as applied to him because it violates his Second Amendment right to bear arms.  In the alternative, he argues that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii).  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We reject Chovan’s “civil rights restored” argument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g)(9) under intermediate scrutiny.

In a lengthy concurrence, Judge Bea explains why he thinks strict scrutiny is the right way to scrutinize the federal gun crime at issue here, and his opinion concludes this way:

The Heller opinion did not provide lower courts with explicit guidance on how to analyze challenges to statutes under the Second Amendment. If we are to apply the familiar tiers of scrutiny analysis in Second Amendment cases, instead of a pure textual, historical, and structural analysis, however, history and precedent still dictate a more stringent examination of these issues than the majority allow. Strict scrutiny has become an integral aspect of much of our constitutional jurisprudence. See Fallon, supra, at 1268 (ranking strict scrutiny “among the most important doctrinal elements in constitutional law”). After applying strict scrutiny to § 922(g)(9), I come to the same conclusion as do the majority, and uphold the law. The close look afforded by strict scrutiny, however, ensures that the law truly is narrowly tailored to further a compelling governmental interest, and ensures that the Second Amendment’s contours are drawn by the Constitution, and not by Congress.

November 18, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack

Friday, November 08, 2013

"Informal Collateral Consequences"

The title of this post is the title of this notable new piece available via SSRN by Wayne Logan. Here is the abstract:

This essay fills an important gap in the national discussion now taking place with regard to collateral consequences, the broad array of non-penal disabilities attaching to criminal convictions. In the wake of the Supreme Court’s landmark 2010 decision in Padilla v. Kentucky, efforts are now underway to inventory collateral consequences imposed by state, local, and federal law.  Only when the full gamut of such consequences is known, law reformers urge, can criminal defendants understand the actual impact of their decision to plead guilty.

The increased concern over collateral consequences, while surely welcome and important, has however been lacking in a key respect: it has ignored the many adverse social, medical and economic consequences of conviction, experienced by individuals independent of formal operation of law.  This essay augments the consciousness-raising effort now under way and makes the case that informal, and not just formal collateral consequences of conviction, should figure in post-Padilla policy efforts to achieve a fairer and more transparent criminal justice system.

November 8, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Thursday, November 07, 2013

State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional

As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders."  Here is more:

Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.

Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.

The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.

Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.

In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."

"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."

County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.

Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."

The full 40+ page ruling reference here is available at this link, which I found via this helpful page from the helpful folks at the Juvenile Law Center.

November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

New Michigan law adds to number of states requiring registered sex offenders to pay yearly fee

This local article report on yet another notable extra bit of punishment now for sex offenders in Michigan.  The piece is headlined "Sex Offenders Will Have To Pay To Live In Michigan Under Bill Signed By Gov. Snyder," and here are the details:

Gov. Rick Snyder has signed legislation requiring registered sex offenders living in Michigan to pay an annual $50 fee. The bill, sponsored by Republican Sen. Rick Jones, replaces the system under which sex offenders paid a one-time $50 fee. Snyder signed the bill into law on Tuesday.

The measure only applies to registered sex offenders who are out of prison. Officials say $20 of each fee would go to local law enforcement and $30 would go to the state. If offenders don’t pay the annual fee, they face misdemeanor charges.

Offenders who can’t afford the fee would have the chance to make their case and receive a 90-day waiver. To do that, offenders would either have to prove in court that they are indigent, are receiving food assistance from the state, or are living under the federal poverty level.

Snyder said the law brings Michigan in line with neighboring states that require sex offenders to pay for the operating cost of sex offender websites. He said Indiana charges $50 per year, while Illinois and Ohio charge offenders $100 per year. The state said the move could bring in about $540,000 more in revenue each year.

But not everybody is on board with the new law. Opponents, which include the American Civil Liberties Union, say it’s merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.

“They have paid their dues … this is a burden that we just keep piling on,” said Shelli Weisberg, legislative liaison for ACLU of Michigan. She argues that the state is not asking offenders to pay for something that benefits them, but something that is intended to protect citizens. Therefore, the state should pay for it.

November 7, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (86) | TrackBack

Wednesday, October 23, 2013

Should Congress tell all states and localities they many never employ certain ex-offenders in their public schools?

The question in the title of this post is prompted by this new AP story headlined "House Votes for School Checks for Sex Offenders." Here are is the backstory:

Public schools would be barred from employing teachers and other workers convicted of sexual offenses against children or other violent crimes under a bill the House approved Tuesday.

The measure would require school systems to check state and federal criminal records for employees with unsupervised access to elementary and secondary school students, and for people seeking those jobs. Workers refusing to submit to the checks would not be allowed to have school positions.

A 2010 report by the Government Accountability Office, the auditing arm of Congress, cited one estimate that there are 620,000 convicted sex offenders in the U.S. It also found that state laws on the employment of sex offenders in schools vary.  Some require less stringent background checks than others, and they differ on how people with past convictions are treated, such as whether they are fired or lose their teaching license.

The bill has run into objections from major teachers' unions like the National Education Association and the American Federation of Teachers.  In letters to lawmakers, their criticisms included concerns that the measure might jeopardize workers' protections under union contracts.  In addition, the NEA wrote that criminal background checks "often have a huge, racially disparate impact" — a reference to critics' complaints that minorities make up a disproportionately high proportion of people convicted of crimes.

Despite those concerns, the House approved the measure by voice vote. "Keeping children safe is not a partisan issue," said the chief sponsor, Rep. George Miller, D-Calif. "It's a moral obligation."

"Every school employee, from the cafeteria workers to the administrators, to janitors to the teachers, principals and librarians, that every one" is subject to background checks including the FBI fingerprint indentification system to the national sex offender registry, said Rep. Todd Rokita, R-Ind.

No one said they opposed the bill.  But Rep. Keith Ellison, D-Minn., said that by imposing lifetime bans and ignoring the ability of people to overcome criminal backgrounds, "We do run the risk of doing a good thing, but doing too much of a thing." He said he'd continue seeking changes in the measure as it moves through Congress....

The bill would forbid public schools to employ people convicted of crimes against children including pornography, or of felonies including murder, rape, spousal abuse or kidnapping. It would bar school districts and state education agencies from transferring workers who have engaged in sexual misconduct with minors to another location.  The measure would also apply to contractors who work at schools.

Especially as this bill moves to the Senate, I wonder how tea party conservatives like Senators Cruz and Lee and Paul are likely to look at this seemingly significant intrusion by the federal government into state and local education and employment authority. If applied broadly, it sounds as though this bill would preclude someone convicted decades earlier of public indecency or child abuse from serving as a janitor or construction worker in any public school in any state. Whatever one might think about a state adopting such a rule for its own schools, but it seems like quite an intrusion into state authority for the feds to require this rule for all states and localities nationwide.

October 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

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 (8) | TrackBack