Wednesday, July 27, 2016
"Give felons and prisoners the right to vote"
The title of this post is the title of this new commentary in the Washington Post authored by Gideon Yaffe. Here is how it starts and ends:
This week, Virginia Gov. Terry McAuliffe (D) vowed to sign individual orders restoring the voting rights of more than 200,000 convicted felons living in the state. His pledge followed the Virginia Supreme Court’s ruling that the mass clemency McAuliffe issued in April overstepped his power under the commonwealth’s constitution. Republicans complained bitterly — think of all those Democratic votes from the many African Americans who stand to benefit! — and promised to scrutinize every order for errors.
But the GOP has it wrong. Not only is McAuliffe doing the right thing, but also he should push further. Prisoners, too, should be allowed to vote, no matter their crimes. While only Vermont and Maine currently grant prisoners the vote, felon disenfranchisement fundamentally undermines the democratic rationale of our criminal laws. We cannot hold citizens to account for violating our laws while denying them a say over those laws.
In a democracy, it can fairly be said that when the state does something unpleasant to you — locks you up, forces you to pay taxes, takes your property — that injury is self-inflicted. Since it’s your government, whatever it does to you is something you do to yourself. And it’s your government because you have a say over what it does: You have the vote. But when the state brings down the hammer on a disenfranchised, recidivist felon, the punishment he receives is not self-inflicted. His punishment might as well be levied by a foreign government.
Most felons — whether in prison, on probation or parole, or entirely free of state supervision — are citizens. They should not be treated like foreigners. First of all, they have no other geographic home: They cannot be deported, because citizens have a right to be here. But felons also have no other political home. Nowhere else can they live under a government whose actions are their actions. In this way, they are importantly different from immigrants, who (if they come from a place governed by the rule of law) are granted a say over the behavior of some government somewhere....
In a democracy, felon enfranchisement should not be a partisan issue. Both Republicans and Democrats ought to be held to account for their crimes by a government whose actions they can own. We should give the vote to citizens, in or out of prison, whom we wish to hold responsible for violating laws that are not just ours but also theirs.
Tuesday, July 26, 2016
District Court explains reasons for disallowing penile plethysmograph and visual response testing for child pornography offender
A helpful reader altered me to a notable sentencing opinion handed down last week by District Judge John Kane in US v. Cheever, No. 15-cr-00031-JLK (D Colo July 18, 2016) (available here). The first part of the opinion provides a thoughtful account of the sentencing judge's accounting of application of the 3553(a) sentencing factors to defendant Shawn Cheever after his plea to a single count of possession of child pornography, but an "addendum" to the opinion is what makes it truly blog-worthy. In the addendum, Judge Kane explains why he is refusing to "authorize a treatment provider to require polygraph, plethysmograph (PPG) and visual reaction time measurements." His lengthy explanation merits reading in full, and here are a few of many interesting passages therein:
Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. Rather, just as with the polygraph (lie detector) machine, it is used as a tool of coercion by both law enforcement personnel and treatment providers. The plethysmograph is used to obtain inculpatory admissions, the reliability of which is at best equivocal. The patient or suspect may believe he can manipulate the results — and with a modicum of sophistication or psychopathy, he may well be able to do so. Or, the suspect or patient may succumb to the threat, overt or implied, that his refusal to submit to testing has negative implications that can result in further incarceration, withholding of privileges or being held back in the treatment or incarceration processes and therefore lie about his interests or past behavior. Moreover, it is not fanciful speculation that false test results can be conveyed to the individual in order to reduce resistance and gain inculpatory admissions....
[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. The violation is per se. It is paradoxical that the government would mandate individuals subject to supervised release to join an administrator of the test in conduct so vile that it landed him in prison in the first place. The statute criminalizing the possession, use and distribution of child pornography has no exceptions. Both the administrator and the subject are violating the statute. Moreover, the well-established continuing damage inflicted on the child victims portrayed in the pornography derives from the fact that they are seen repeatedly by viewers and it makes not one shred of difference to the victims that the viewer is a pervert or a therapist....
Prohibiting courts, probation and parole officers and treatment facilitators and providers from using devices that fail tests of scientific validity is necessary, but a further comment about the line Judge Noonan describes so eloquently will perhaps provide a resolution to the underlying debility. Judge Noonan evokes the task of Orwell's "Thought Police" — and using what is "discovered" as a basis for further punishment or superficial rehabilitation. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) stated: "freedom of thought. . . is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal."...
The established traditions of our law embrace the ancient common law principle that liberty should not be impinged or threatened for what a person thinks, but only for what a person does. The maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) was written long before the invention of the plethysmograph or other machines intended to probe the recesses of the mind....
Penile plethysmograph tests rely on the heavy assumption that stimuli arousal is strongly related to the potential for recidivism. Inferences by the courts about a person's potential for sexual offense based on his innermost sexual desires fail to acknowledge that arousal data is not an ineluctable precursor to deviant behavior. This observation, a fortiori, illustrates the dangerous conflation of thought with behavior. Before administering the penile plethysmograph without questioning its obvious scientific shortcomings (not to mention its ethical implications), it is crucial that the courts, probation and parole officers and PPG evaluators recognize 1) the power of refrain; and 2) the difference between thought and action. The presuppositionless assumption is that any "arousal level" occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses. Urges, however, are not always overwhelming. Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.
UPDATE: Another helpful reader altered me that there is now this Denver Post article about the opinion in Cheever, which is headlined "Judge criticizes federal sentencing guidelines in pornography case: Kane said he would have given sex offender lesser sentence if permitted by law."
Saturday, July 23, 2016
Split Virginia Supreme Court deems unconstitutional mass effort by Gov to restore felon voting rights
As reported in this local article, the "Supreme Court of Virginia on Friday struck down Gov. Terry McAuliffe’s executive order restoring voting rights to 206,000 felons, dealing a severe blow to what the governor has touted as one of his proudest achievements in office." Here is more about the ruling:
In a 4-3 ruling, the court declared McAuliffe’s order unconstitutional, saying it amounts to a unilateral rewrite and suspension of the state’s policy of lifetime disenfranchisement for felons. The court ordered the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered” under McAuliffe’s April 22 executive order and subsequent orders.
As of this week, 11,662 felons had registered to vote under McAuliffe’s orders. The court gave a cancellation deadline of Aug. 25.
McAuliffe, a Democrat, took the sweeping action in April, saying he was doing away with an unusually restrictive voting policy that has a disproportionate impact on African-Americans. In a legal challenge, Republican leaders argued McAuliffe overstepped his power by issuing a blanket restoration order for violent and nonviolent felons with no case-by-case review.
The court majority found that McAuliffe did indeed overstep his authority. “Never before have any of the prior 71 Virginia governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request,” Chief Justice Donald W. Lemons wrote in the majority opinion. “To be sure, no governor of this commonwealth, until now, has even suggested that such a power exists. And the only governors who have seriously considered the question concluded that no such power exists.”
In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.
“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”...
Republicans have attacked the order as a political power grab, accusing McAuliffe of trying to help his friend and presumptive Democratic presidential nominee Hillary Clinton win a swing state by adding thousands of Democratic-leaning voters to the polls. GOP leaders called the court’s ruling a victory for the rule of law. “He spent 90 days bragging about this being the high point of his governorship,” said Del. Robert B. Bell, R-Albemarle, who’s running for attorney general in 2017. “And the court made it very clear that he acted unconstitutionally.”
In a joint statement, House Speaker William J. Howell, R-Stafford, and Thomas K. Norment Jr., R-James City, said: “Our nation was founded on the principles of limited government and separation of powers. Those principles have once again withstood assault from the executive branch. This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority.” Howell and Norment were two of the plaintiffs behind the legal challenge. They argued that their future election bids could be tainted by participation of invalid voters.
Justices Cleo E. Powell and S. Bernard Goodwyn — the court’s two African-Americans — dissented from the ruling, arguing the plaintiffs lacked standing to bring the case. Justice William C. Mims also dissented over the issue of standing, saying the court lacked sufficient evidence — most notably the governor’s list of the 206,000 felons affected — to fully consider the order’s impact....
Republicans argued McAuliffe lacks the authority to issue blanket restorations, but Attorney General Mark R. Herring and top constitutional scholar A.E. Dick Howard said McAuliffe was on firm legal ground. “The majority’s opinion is terribly disappointing, especially for the thousands of Virginians who will be thrown off the voter rolls after experiencing the joy, excitement, and fulfillment of getting back their voice and their vote,” Herring said in an emailed statement.
McAuliffe’s Democratic allies blasted Republicans for celebrating a legal victory that will block thousands of Virginians from voting. “It’s a sad and disappointing day when the Virginia Supreme Court bows to political pressure from right-wing ideologues who would rather bar citizens from the polls than compete for every vote,” said Anna Scholl, executive director of Progress Virginia. Scholl said the “deciding vote” was Justice Stephen R. McCullough, whom Republicans elected to the Supreme Court this year after refusing to approve McAuliffe’s interim pick, former Justice Jane Marum Roush, for a full term. McCullough sided with the majority....
The legal rebuke comes at an awkward time for McAuliffe, who is scheduled to speak at next week’s Democratic National Convention celebrating Clinton and her newly selected running mate, U.S. Sen. Tim Kaine, D-Va. Clinton praised McAuliffe after the order in April. When he was Virginia’s governor, Kaine declined to issue a blanket rights restoration order like the one pursued by McAuliffe, despite pressure from activists. The Supreme Court ruling referenced Kaine’s position, saying Kaine “correctly understood” he did not have blanket restoration power.
The full opinion from the split Virginia Supreme Court is available at this link.
Monday, July 18, 2016
Detailing the steady growth in registered sex offenders in Texas
Last week, the Austin American-Statesman had this lengthy and effective article highlighting the history and modern realities of the sex offender registry in Texas. The piece is headlined "Program to corral ballooning sex offender registry failing," and here are excerpts:
Texas started its sex offender registry 20 years ago as a way for the public and police to monitor a group of criminals believed to be virtually incapable of rehabilitation and thus likely to commit additional sex crimes. Since then, however, many studies have concluded that it is uncommon for sex offenders — particularly those who ... are designated as low-risk — to commit new offenses.
According to the Texas Department of Public Safety, more than 90 percent of the state’s registered sex offenders are not considered to be at high risk of re-offending.
Yet the registry is like a cemetery: Because many offenders are placed on it for a lifetime, or at least decades, it only expands in size. Over the past five years, Texas has added new names to the list at a rate of nearly a dozen every day.
In 2011, Texas began a so-called deregistration process. The intent was to remove those who were unlikely to re-offend from the list and, in so doing, save taxpayers money. By focusing police attention on truly dangerous offenders, it would also improve public safety.
By that measure, however, the program has been a bust. In the 5 1/2 years it has been in existence, only 58 sex offenders have been permitted to deregister from the Texas list — less than one-tenth of 1 percent of the current registry....
[T]he calculated risk offenders pose to the public typically has little to do with their appearance on the registry. While a handful of states meaningfully separate low- from high-risk offenders — Massachusetts excludes its lowest-risk offenders from the public list — many, like Texas, do not.
So-called Romeo offenders, convicted of sex with an underage girlfriend or boyfriend, exist side by side with rapists. There is no consideration as to whether a molestation occurred within a family — and thus, experts say, is statistically unlikely to reoccur outside it — or was committed by a predator snatching an unknown child off the street.
Surveys show the public believes public registries make neighborhoods safer, because sex criminals demand the extraordinary supervision and exposure. Yet research also indicates residents rarely consult the public lists.
And while some criminologists still suggest the registries improve crime rates, a growing number of studies have concluded they have had no meaningful impact on sex offenses by predicting or preventing them. “The abundance of evidence does not point to the effectiveness of registration systems in reliably classifying offenders, reducing recidivism, or preventing sex crimes,” Jill Levenson, a national expert in registry studies, concluded in a research roundup published earlier this year.
Practitioners say an offender’s appearance on the list can even have the opposite of its intended effect. Employment and housing restrictions that accompany registration — most state-regulated occupations in Texas prohibit sex offenders from holding licenses, and at least 86 cities limit where offenders can live — can drive registrants back into illegal behavior, said Pierce, who has worked with sex offenders for more than two decades.
Despite their low utility, the registries continue to balloon in size. As of June 1, Texas’ stood at 87,686 — 35 percent higher than five years ago. Maintaining the growing lists is increasingly expensive. In 2006, the Texas Department of Public Safety assigned 10 staffers and spent $343,000 to manage the registry. By last year, it required 21 employees and nearly four times the money.
Local law enforcement agencies, where offenders must periodically check in, bear the bulk of the costs. The Houston Police Department, which monitors more than 5,000 registered sex offenders, employs 14 people — 10 of them officers — who do nothing else.
Friday, July 15, 2016
"Prosecuting Collateral Consequences"
The title of this post is the title of this notable new paper authored by Eisha Jain and recently posted to SSRN. Here is the abstract:
Criminal law scholars have long agreed that prosecutors wield vast and largely unreviewable discretion in the criminal justice system. This Article argues that this discretion now extends beyond criminal penalties and broadly reaches civil public policy decisions, such as deportation and licensing.
As a result of ubiquitous plea bargaining and collateral consequences — state-imposed civil penalties that are triggered by criminal convictions — prosecutors can deliberately exercise discretion to trigger or avoid important civil consequences. This aspect of prosecutorial discretion has been underexamined, partly because of a lack of awareness of collateral consequences. But as a result of important new initiatives designed to promote information about collateral consequences, prosecutors as well as defendants are becoming more likely to know that even minor convictions can trigger much more serious civil penalties.
As some commentators have pointed out, prosecutors who are aware of collateral consequences may have powerful incentives to drop charges or otherwise structure pleas to minimize the likelihood of certain collateral consequences. But importantly, prosecutors also have strong structural incentives to take the opposite approach and reach pleas to maximize the likelihood of civil penalties. For some prosecutors, enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction, as a source of leverage, as a way to circumvent the requirements of criminal procedure, as a means of achieving deterrence or retribution, or as a way to promote their own public policy preferences.
This Article develops an analytic framework for understanding the structural incentives that lead prosecutors to influence collateral consequences; exposes legal and ethical problems associated with plea bargaining in light of collateral consequences; and argues that collateral consequences can undermine important interests in transparency and accountability.
Wednesday, July 06, 2016
Deep dives into realities of sex offender registries two decades after they started to proliferate
Vox has these two lengthy new pieces looking at the realities of sex offender registries:
Here is an extended excerpt from the first of these pieces:
The registry was designed for "sexual predators" who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: Sexual predators" were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding "sexual predators" needed to fall to parents....
Twenty years later, the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished; the idea that it’s up to potential victims to change their behavior is usually criticized as victim blaming.
Yet the sex offender registry is still going strong.
It hasn’t worked as a preventive tool. Instead, it's caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live — then further constrained by harassment or shunning from neighbors and prejudice from employers.
Some of the people on the sex offender registry have had their lives ruined for relatively minor or harmless offenses; for example, a statutory rape case in which the victim is a high school grade younger than the offender.
Others are people like Brock Turner — people who have committed serious crimes that are nonetheless very different from the ones the registry was supposed to prevent, and which the registry might, in fact, make harder to fight.
This happens often in the criminal justice system: Something designed for one purpose ends up getting used for something else. As usual, it happened because people can't agree on what society wants to do with criminals to begin with.
Saturday, July 02, 2016
"Should a juvenile sex offender be locked up indefinitely?"
The question in the title of this post is the headline of this PBS Newshour segment, which is focused on Minnesota's experiences with indefinite commitment of sex offenders. Here is a segment of the segment:
Elizabeth Letourneau is one of the nation’s leading experts on juvenile sex offenders. She directs the Moore Center for the Prevention of Child Sexual Abuse at John Hopkins University. She says civilly committing juvenile sex offenders makes little sense, first because it’s incredibly costly. Minnesota spends about $125,000 per offender per year, which is roughly triple the cost of regular prison.
But, most importantly, she says it doesn’t make sense because juvenile offenders are likely not lifetime offenders. "Among youth who are adjudicated for a sexual offense, so they have been arrested, processed, 97 percent to 98 percent will not reoffend sexually. So, truly, the vast majority ... if they are caught committing a sexual offense, will not do it again."
Emily Piper is the commissioner of Minnesota’s Department of Human Services, which oversees the state’s sex offender program. She says only 4 percent of Minnesota’s registered sex offenders are currently civilly committed, and she argues the state is rightly incarcerating the most troubling of those....
In 2011, a class-action lawsuit was brought against the state by a group of offenders in Minnesota’s program, including Craig Bolte, arguing they were not getting any meaningful treatment and were instead being held indefinitely.
And, last year, federal district judge in St. Paul sided with them, saying that Minnesota’s sex offender program was unconstitutional, ruling “It’s a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”
The state has appealed the decision, and a ruling is expected this fall. In the meantime, state officials say they have already started making changes. Five offenders have been moved into less restrictive settings, and new reviews are being done of all offenders to determine who’s a potential candidate for release and who isn’t.
Even Dru Sjodin’s mother, Linda Walker, admits that maybe some juvenile cases should be reexamined, but she hopes that, in all its reforms, Minnesota will err on the side of caution before releasing anyone.
Sunday, June 19, 2016
"Collateral Consequences and the Preventive State"
The title of this post is the title of this article by Sandra Mayson just posted to SSRN. Here is the abstract:
Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply.
This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints.
Wednesday, June 01, 2016
"Correctional Control: Incarceration and supervision by state"
The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):
Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.
For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.
We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.
Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.
Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population. We find that for every 100 people incarcerated in a state prison in that state:
- Maine has 1 person on parole.
- Florida has 4 people on parole.
- Arkansas has 117 people on parole.
- Pennsylvania has 198 people on parole.
June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)
Friday, May 27, 2016
"The Story of Federal Probation"
The title of the post is the title of this notable new paper authored by Brent Newton now available via SSRN. Here is the abstract:
Critics of the modern federal sentencing system regularly assert that the sentencing guidelines promulgated by the United States Sentencing Commission (“the Commission”), pursuant to the Sentencing Reform Act of 1984 (“SRA”), have resulted in unnecessarily harsh prison sentences and overcrowded federal prisons. As a central part of their critique, they specifically claim that the Commission’s policy choices, as reflected in the guidelines, have been responsible for the steep decline in the rate of federal probationary sentences (and other non-incarceration sentences, such as a fine only) imposed during the past three decades. That rate has fallen from around half of all federal sentences in the decades before the guidelines went into effect in late 1987, to slightly less than a quarter of federal sentences shortly after the guidelines were first implemented nationwide in the early 1990s, and to one in ten federal sentences today.
This Article assesses those critics’ claims about federal probation sentences and, in the process, tells the story of federal probation — beginning with a short history of federal probation from its creation in 1925, leading up to when the SRA created the Commission, and continuing through the ensuing three decades to the present time. This Article discusses how the original Commission followed Congress’s directive to increase the overall rate of federal prison sentences (and thus reduce the rate of probation), but also analyzes how several factors unrelated to the guidelines are as much — or even more — responsible for the substantial decrease in the rate of federal probationary sentences since the guidelines went into effect on November 1, 1987.
In particular, the current low rate of federal probationary sentences is in large part explained by: (1) significant changes in the types of federal offenses prosecuted during the past three decades (with two-thirds of federal cases today involving substantial drug-trafficking offenses, firearms offenses, or immigration offenses, which typically do not involve realistic candidates for probation); (2) a significant increase in the average federal defendant’s criminal history during the past three decades; (3) the enactment of several federal penal statutes either requiring a mandatory minimum term of imprisonment or otherwise prohibiting probation as a sentence; (4) the implementation of the Bail Reform Act of 1984, which today results in the pre-sentencing detention of three-quarters of federal offenders (and creates a strong incentive for detained defendants not to ask for probation); and (5) a significant increase in the percentage of non-citizen offenders in the federal criminal justice system (who are not eligible for probation as a practical matter).
May 27, 2016 in Booker in district courts, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1)
Saturday, May 14, 2016
Ho, Ho, Ho: symbolic and sound sentence for SEPTA screw-up
A helpful reader altered me to this local sentencing story that would likely make both Socrates and Santa Claus smile. The piece is headlined "Ex-SEPTA police officer is sentenced to Christmas service," and here are the details:
For falsely arresting a nurse on Christmas 2013, former SEPTA Police Officer Douglas Ioven must spend four hours each Christmas for the next four years doing community service. That was part of a novel Noel sentence handed down Friday by a Philadelphia Common Pleas Court judge.
In March, Ioven, 44, was found guilty of false imprisonment and official oppression for arresting nurse Muibat Williamson at Suburban Station, following a contentious confrontation between the two at a Dunkin' Donuts store. On Friday, Judge Anne Marie B. Coyle sentenced Ioven to serve 30 days in prison over 15 consecutive weekends and 3-1/2 years of probation, according to court records.
Coyle also sentenced Ioven to 50 hours of anger management and 50 hours of community service each year over Ioven's four years of supervision. She noted that Ioven is to serve four hours of his annual 50 hours of service on Christmas. Coyle said his service should focus on serving low-income and homeless people....
Assistant District Attorney Andrew Wellbrock, who prosecuted the case, said he was satisfied with the sentence. "This is an individual who abused his power and abused his badge and really needed to know what it feels like to take someone's liberty," Wellbrock said.
Tuesday, May 10, 2016
Tenth Circuit finds Fifth Amendment problems in sex offender treatment program requirement as part of conditions of supervised release
A helpful reader alerted me to think interesting new Tenth Circuit panel ruling in US v. Von Behren, No. 15-1033 (1th Cir. May 10, 2016) (available here), which gets started this way:
Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography. One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged. The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities. Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense. Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision. The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay. We reverse on the Fifth Amendment issue.
Friday, May 06, 2016
First they came for the sex offenders, then for the abortion providers...
This new Mother Jones article, headlined "Alabama Passes a Bill to Regulate Abortion Clinics Like Sex Offenders," reports on how a common legislative restiction on sex offenders has inspired a restriction on abortion providers in Alabama. Here is how the article starts:
Alabama lawmakers passed two bills in the waning hours of their legislative session on Wednesday that could close two of the state's five abortion clinics and make it harder for women to receive abortions in their second trimester.
One of the bills prohibits abortion clinics from operating within 2,000 feet of an elementary or middle school—the same restriction that applies to sex offenders. If Alabama Gov. Robert Bentley signs the bill, it may force two of the state's five abortion clinics to close, including a clinic in Huntsville which is the only one providing abortion care in the northern half of Alabama. The clinic just moved to its current location, across the street from a school, in 2014, in order to comply with other abortion restrictions passed in Alabama in 2013.
The sponsor of the bill, Alabama state Sen. Paul Sanford, likened the restrictions to those imposed on sex offenders. "We can put a restriction on whether a liquor store opens up across the street and make sure pedophiles stay away from schools," he told the Times Daily in February. "I just think having an abortion clinic that close to elementary-age school children that actually have to walk on the sidewalk past it is not the best thing."
Tuesday, April 26, 2016
You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?
I have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova." As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion." I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.
I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case. This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):
More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.
"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through. I ask that you consider the man that is before you and give him leniency where you can."...
Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician. They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks. "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."
Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars. He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.
In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said. The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....
When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors. Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.
I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment. Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.
That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes. (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.) His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought separate serious criminal charge for obstruction of justice.
Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint. For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys. And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing. (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)
So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?
April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)
Friday, April 22, 2016
Split Kansas Supreme Court, reversing itself in real time, ultimately decides that state's lifetime sex offender registration law is constitutional
In a significant ruling today in the Supreme Court of Kansas, the Court splitting 4-3 upheld the state's sex offender registration laws via an opinion in Kansas v. Petersen-Beard, No. 108,061 (Kansas April 22, 2016) (available here). This opinion has one of the strangest first paragraphs you will ever read:
Henry Petersen-Beard challenges his sentence to lifetime post-release registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).
This local article, headlined "Sex offenders win and lose in unusual rulings by the Kansas Supreme Court," explains how the court issued three rulings on these matters today and then overruled those via its final ruling in Petersen-Beard:
In an apparently unprecedented series of rulings, the Kansas Supreme Court on Friday overruled three of its own Friday opinions regarding state sex offender registration laws. In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect. But then in a fourth opinion also released Friday, the court found that those rulings were incorrect. The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.
The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions.
But for the fourth case, that district judge was replaced by the newest Supreme Court justice, Caleb Stegall. That case was also decided 4-3, with Stegall casting the deciding vote. The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.
The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders does not violate federal and Kansas constitutional protections against cruel and unusual punishment.
In the three other cases, the court ruled that offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took affect after they committed their crimes. But those rulings apparently apply only to those three offenders. Others will be governed by the fourth ruling Friday.
April 22, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)
Just how should sentencing law deal with a truly habitual petty criminal?
This morning I came across this recent Huffington Post piece lamenting in its headline a seemingly a very severe application of Louisiana's habitual offender law: "Louisiana Man May Face Life For Shoplifting Snickers Bars: Critics say the case shows how habitual-offender laws can bully small-time crooks into pleading guilty rather than risking the consequences of a trial." To its credit, the HuffPo piece use this latest shoplifting case story to talk more generally about how severe mandatory sentencing laws can functionally place tremendous pressure on a defendant to plead guilty to try to avoid an extreme prison term.
But, rather use this story to reiterate my long-standing disaffinity for severe mandatory sentencing provisions (especially because of the often unchecked power it can place in the hands of prosecutors), I did a bit of digging into the story behind the habitual offender now in big trouble for his candy caper, and what I found prompted the question in the title of this post. Consider specifically the factual backstory reported in this local piece headlined "Accused New Orleans candy thief, facing 20 years to life, turns down deal for 4 years":
New Orleans shoplifter Jacobia Grimes, facing a possible sentence of 20 years to life for stuffing $31 worth of candy bars into his pockets at a Dollar General store, has rejected a plea offer from District Attorney Leon Cannizzaro’s office that would have seen him serve a four-year sentence as a double offender, his attorney said Friday.
The offer was the same sentence that Grimes agreed to serve when he pleaded guilty in 2010 to swiping socks and trousers in a similar shoplifting attempt. Grimes, 34, did not appear in court for a hearing Friday. He remains jailed on a violation of his $5,000 bond, having tested positive last week for opiates, cocaine, oxycodone and marijuana.
But Criminal District Court Judge Franz Zibilich again suggested to prosecutors and Grimes’ attorneys that they work out a deal for less jail time, followed by probation and drug treatment. Zibilich noted Grimes’ lengthy criminal record, which includes more than a dozen arrests since 2000. Most of the nearly nine years he has spent in prison since 2001 were the result of shoplifting convictions, records show. “I agree he has to pay the consequences, even though it’s candy. I would like to see some sort of split sentence,” Zibilich said.
However, Assistant District Attorney Iain Dover said state law may not allow it, given Grimes’ status as a potential “quad” offender under the state’s habitual offender law. “I can’t see how we get there under the law,” Dover said.
Cannizzaro’s office charged Grimes in a bill of information Feb. 3 under a state statute for theft of goods by someone with multiple convictions for the same thing. His earlier convictions elevated his alleged candy heist, on Dec. 9 at a Dollar General store on South Claiborne Avenue, to a felony. Whether Grimes would face 20 years to life if he’s convicted of the candy theft would be up to Cannizzaro’s office. State laws give prosecutors discretion following a conviction to raise the ante by filing a “multiple bill.”
His case, given the nature of the crime and the possible penalty, has gained wide attention, prompting Cannizzaro to publicly dismiss the notion that he would seek such a heavy sentence for a shoplifter. Dover argued that Grimes’ criminal record shows that slaps on the wrist don’t seem to work. “It’s not the state’s fault. It’s this guy’s fault. He’s had a chance. He’s had the opportunities,” Dover said.
Zibilich suggested that both sides could agree to go below the mandatory minimum prison sentence in a plea deal that includes treatment, so long as nobody challenged it. “Do we have to be married to every single syllable of this book?” he asked of the state’s penal code.
Grimes’ trial is scheduled for May 26. His attorneys, Miles Swanson and Michael Kennedy, have opted to forgo a jury and let Zibilich decide the case.
This only things that seems really obvious to me in this case is that even some extended stints in state prison are not working to help Jacobia Grimes stop being a petty criminal. Even recognizing that incapacitating this petty criminal via incarceration is likely not especially cost effective for the taxpayers of Louisiana, at this point what other punishment options would you suggest the prosecutor and judge seriously consider under these circumstances?
April 22, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
"Why I refuse to send people to jail for failure to pay fines"
The title of this post is the headline of this lengthy recent Washington Post commentary authored by Ed Spillane, the presiding judge of the College Station Municipal Court and president of the Texas Municipal Courts Association. Here are excerpts:
As a municipal judge in College Station, Tex., I see 10 to 12 defendants each day who were arrested on fine-only charges: things like public intoxication, shoplifting, disorderly conduct and traffic offenses. Many of these people, like Melissa, have no money to pay their fines, let alone hire a lawyer.
What to do with these cases? In Tate v. Short, a 1971 Supreme Court decision, the justices held that jail time is not a proper punishment for fine-only criminal cases, citing the equal protection clause of the 14th Amendment. But in many jurisdictions, municipal judges — whether they’re overworked, under pressure to generate revenue through fees, skeptical of defendants’ claims to poverty or simply ignorant of the law — are not following the rules. As a result, far too many indigent defendants are cited for contempt of court and land behind bars for inability to pay.
There’s another way, and I’ve been experimenting with it in my own courtroom.
There are no firm numbers nationally on how many fine-only cases end with the defendants in jail, but figures from particular jurisdictions around the country are grim, if partial. A 2014 survey by NPR, New York University’s Brennan Center for Justice and the National Center for State Courts showed that in Benton County, Wash., a quarter of people in jail for misdemeanors on a typical day were there for nonpayment of fines and court fees. (The study also found that civil and criminal fees and fines had increased in 48 states since 2010.) The percentage of jail bookings in Tulsa involving inmates who had failed to pay court fines and fees more than tripled, from 8 to 29 percent of 1,200 inmates, between 2004 and 2013, according to reporting by the Tulsa World. Eighteen percent of all defendants sent to jail in Rhode Island between 2005 and 2007 were incarcerated because of court debt; in 2005 and 2006, that amounted to 24 people per day....
Fortunately, courts and judges are not powerless to fix the system.
First, defendants must be allowed to argue economic hardship in an indigency hearing, which is Constitutionally required if a defendant says he or she can’t pay. It’s unclear how many judges skip these hearings, and practices vary from one jurisdiction to another, but Lauren-Brooke Eisen, senior counsel at the Brennan Center, says there’s no question that some judges aren’t holding them. “Sometimes it’s not always nefarious,” Eisen says. “They have very full dockets. . . . It can require overtime just to finish their docket for the day. It’s not always a deliberate decision to not hold those hearings.”...
Once a defendant proves indigency, we can also be much more creative in our sentencing than “fine or jail” (or a suspended driver’s license, a popular measure that disproportionately hurts low-income workers who can’t get to their jobs without driving). Community service at a nonprofit or government entity is one of the strongest tools judges have at their disposal; in my experience, it boosts defendants’ self-esteem and provides valuable assistance to organizations that need the help....
Judges can also sentence defendants to anger-management training, classes for first-time offenders or drunk-driving-impact panels. National research shows that alternative sentencing like teen court can reduce recidivism, and my time on the bench confirms this. One defendant in an alcohol-related case, Jeff Schiefelbein, was sent to a Mothers Against Drunk Driving victim-impact panel in 1997. He was so moved by the experience that he decided to create a designated-driver program for anyone who is intoxicated and needs a ride home. Since 1999, his organization, Carpool, has provided on average 650 rides each weekend in College Station.
And occasionally, as a judge, you can choose mercy. Roger S. was facing an $800 fine for speeding, driving without insurance or registration and driving with defective equipment. He also had terminal cancer. He wrote to me, explaining that he could not afford his treatments, much less what he owed the court. I picked up the phone and called him from court. He was a little surprised but pleased to be talking to the judge. After discussing his medical treatment and all of those costs in detail, I waived his fines because of indigency and inability to perform community service, much to his and his family’s relief....
Of course, no matter how many great alternatives judges can provide instead of jail time, if a defendant fails to come to court, he or she won’t be able to hear about them. Courts must be as accessible as possible, and that starts with allowing children to accompany their parents. One of the revelations in the Justice Department’s report on Ferguson was that children weren’t allowed in municipal court, which explains why many defendants were unable to appear. Several courts in Texas limit or don’t allow parents bringing their children, even though kids don’t present a problem in my court — maybe because we provide coloring books and toys for them to play with while their parents take care of their cases....
I used to prosecute felonies as an assistant district attorney in Brazos County. During that time, I worked for a year in the intake division. This drove home a lesson that my boss, the district attorney, had been trying to instill in me: Every case file is an individual whose rights are as important and sacred as mine or those of my family. The decision to charge or dismiss demands empathy and vigilance. Misdemeanor criminal cases provide an opportunity for a much happier outcome than most felonies because there is a genuine chance for a defendant to learn from a mistake and never set foot in a courtroom again — and keeping someone out of jail is a good way to ensure that happens. In these cases, it should be possible for defendants to resolve their cases without losing their liberty.
All judges want to uphold the rule of law in the communities we serve, but too often we can get lost in the day-to-day business of running a court; we ignore the consequences of what we do. An arrest can cost a citizen his or her job, dignity and security. Alternative sentencing is a way to achieve what we should all want: an end to criminal behavior.
April 22, 2016 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)
Sunday, April 17, 2016
"Colorado 8th-graders caught sexting could have to register as sex offenders"
The title of this post is the headline of this notable press report which helps highlight why so many juvenile justice advocates are so concerned about the broad reach of modern sex offender laws and registries. Here are the details:
Three Colorado middle and high schools were rocked by a string of recent underage sexting scandals, prompting police investigations. If charged, the teens involved in the case — some as young as eighth-graders — could face charges of child pornography, which would require them to register as sex offenders if convicted.
The stiff penalties for sexting has sparked a debate in Colorado and other state assemblies over whether misbehaving teens should face the same punishment as child pornographers. But efforts by the Colorado Legislature to lighten the penalties have stalled.
In the sexting case at Bear Creek, a K-8 school in Lakewood, the five students involved were in eighth grade. School leaders turned to the local police after discovering that nude photos were being circulated, The Denver Post reported. Meanwhile, Colorado Springs police were contacted last Wednesday about allegations that a partially nude photo was shared among a circle of students from two other Colorado schools, Pine Creek High School and Challenger Middle School, according to KRDO news.
At this point, no charges have been filed in any of the cases, but the Pine Creek and Challenger school cases have been handed over to the Fourth Judicial District Attorney’s Office. The juveniles involved could be hit with a felony sex offender charge.
Penalties for underage sexting vary from state to state. In Colorado, minors caught trading nude photos are legally susceptible to harsh child pornography charges. It’s one reason why the Legislature has been working toward a solution to reduce possible sentencing for teens who sext. The latest bill to reach the Legislature would reduce charges for minors to a misdemeanor, echoing the laws of 11 other states. But a vote on the Colorado measure stalled in a House committee last week. Lawmakers against the measure were primarily concerned that, while it would be good to reduce potential child pornography charges for sexters, the bill was still too harsh on kids sending nude images.
State Representative Yeulin Willet, who cosponsored the bill, says that the misdemeanor charge did not go too far. He argued that the juvenile petty offense that the bill introduced accounts legally for "virtually no crime at all" and "basically just takes that juvenile into some counseling or education, end of story."... "To say that this is a victimless situation is just not a fact," he said. "These images get stolen, hacked, now they end up in the hands of thousands or more via digital media, and now you have a suicidal young girl."
But Jennifer Eyl, director of family stability programs at the Rocky Mountain Children’s Law Center, says that even the misdemeanor charge was too harsh. It criminalized the behavior of sexting itself, even consensual sexual behavior between teens, she said, rather than targeting the issue of non-consensual spreading of nude images. "It’s really kind of this blanket prevention of sexting, which, we work with kids, we just know that that’s not going to happen. Sexting is part of 21st-century communication between teenagers," she said. Eyl also expressed concerns that the most vulnerable children — in the foster system or without strong parental involvement — were particularly susceptible to blanket charges because foster parents might be more inclined to involve police should they find nude photos.
A few prior related posts:
- The many fascinating legal and social issues swirling around "sexting"
- Should sexting lead to sex offender registration?
- "Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases"
- Third Circuit upholds bar on sexting prosecution threatened by state DA
- "Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says"
- "Sexting or Self-Produced Child Pornography?"
- New York Times reviews juve problems with modern sex-offender laws
- "Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"
April 17, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8)
Tuesday, April 12, 2016
Interesting alternative sentencing being used in Thailand for drunk drivers
Regular readers know that I have long viewed drunk driving as a much-too-common, potentially-deadly offense that I fear is not regularly punished appropriately to best reduce recidivism and the extraordinary harms to public safety and property that this offense too often produces. Consequently, I was intrigued to see this new article about a new kind of sentencing being tried for this offense in the Land of Smiles. The piece is headlined "Thai drunk drivers to do morgue work in 'shock sentencing' strategy," and here are the details:
Drunk-drivers in Thailand will be sentenced to community service in morgues in an attempt to combat the world’s second highest road death rate. The plan to confront offenders with the risks of their actions in starkly morbid fashion was unveiled as the country embarked on its most dangerous time on the roads – the Thai new year holidays.
In a country with a notoriously poor road safety record, the ruling junta hopes the initiative will drive home the message that drink driving and reckless driving is lethal. "Traffic offenders who are found guilty by courts will be sent to do public service work at morgues in hospitals," said Police Col Kriangdej Jantarawong, deputy director of the Special Task Planning Division.
"It is a strategy used to make traffic offenders afraid of driving recklessly and driving while they are drunk because they could end up in the same condition. It is aimed to be a deterrent, a way to discourage people."
The “shock sentencing” strategy was approved by the Cabinet as the kingdom prepared for the extended Songkran new year festivities that formally begin on Wednesday. There is much higher traffic than normal as millions return to their home villages, while the festivities are also marked by heavy consumption of alcohol, including by drivers. Nominal helmet laws for motorcyclists are widely flouted.
The combination means the celebrations are accompanied by carnage on the roads each year. The government’s safety campaign bluntly refers to the holiday week as “The Seven Days of Danger”. The death toll has been increasing in recent years, despite government crackdowns and awareness campaigns. The authorities have also said that they will immediately impound the cars of motorists driving under the influence.
"We originally had community services at hospital wards (for offenders)," said Nontajit Netpukkana, a senior official at the department of probation. "But we think the intensity that comes from working in a morgue will help give those doing community service a clearer picture of what happens after accidents caused by drink driving.”
Sunday, April 10, 2016
"Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"
A helpful reader alerted me to this article which has the title I have used for the title of this post. I think these excerpts captures some the themes of this lengthy article:
A focus on the juvenile sex offender — or any juvenile offender — has potential upsides. It invites audiences to see a whole person and a complex situation and to empathize with the person who has done, or been accused of doing, harm. The invocation of childhood, and its suggestion of innocence by reason of immaturity, can spread sympathy more widely to whole communities harmed by the carceral state, particularly when kids are secondary victims of parental incarceration and systemic “civil death” or disenfranchisement.
Coverage of the JSO often unpacks the category of “sex offender” — pointing out that it includes convictions for sexting, public urination and consensual sex between minors, as well as violent rape and the abuse of children; it can expose the uniquely harsh treatment of all these people by the U.S. criminal justice system and the public. These stories point to the youthful offender as collateral damage in a regime of indiscriminate and ever-escalating penalties....
But there are also significant downsides to campaigns that construct children as exceptional and different from adults. The public may just as easily be left feeling that adults who break the law are bad and deserve all they get — or that guilty people do not deserve fairness or sympathy. This gives legislators a rationale for trading off youth-friendly criminal justice policies for harder adult penalties, as recently happened when New Mexico legalized sexting between teens but increased penalties for people 18 and older sexting with people under 18. Not just adults but some youth can be penalized by the focus on “children.” Call the person who breaks the law a “child,” and there’s a danger that any young person not demonstrably childlike will end up prosecuted as an adult.
Exclusive focus on the young offender — rather than a rejection of the entire sex offender regime — avoids the larger, less politically popular truth. “Sex offender registries are harmful to kids and to adults,” says Emily Horowitz, associate professor of sociology and criminal justice at St. Francis College in Brooklyn, and a board member of the National Center for Reason & Justice, which works for sensible child-protective policies and against unjust sex laws. “No evidence exists that they prevent sex crimes either by juvenile offenders or adult offenders.”
Such a strategy can invite a wider range of supporters, but it also can mean inadvertent acceptance or even endorsement of policies that are antagonist to justice for wider groups, if not for everyone. For instance, [Center on Youth Registration Reform] (CYRR) is collaborating with Eli Lehrer, of the free-market think tank R Street; he is also a signatory of the conservative Right on Crime initiative. Flagged on the CYRR site is an article by Lehrer, published this winter in National Affairs, that argues for taking kids off the registry. But the piece also concludes that ending the registries would be “unwise” and suggests they’d be really good with a few “sensible” tweaks. Lehrer also proposes hardening policies — such as “serious” penalties for child pornography possession and the expanded use of civil commitment — that data reveal to be arbitrary or ineffective and many regard as gross violations of constitutional and human rights.
Wednesday, March 30, 2016
Federal court to hear challenge to "scarlet passport" provision of International Megan’s Law
As reported in this Wall Street Journal article, a constitutional challenge to a contoversial aspect of a law passed by Congress last month is schedule for a federal court hearing today in California. The article is headined "Law Creating Passport Mark for Sex Offenders Faces First Challenge: Lawsuit targets ‘unique identifier’ for passports of those convicted of sex crimes involving minors," and here are excerpts:
A new federal law requiring the State Department to mark the passports of certain convicted sex offenders is expected to face its first test in federal court on Wednesday. A group of convicted sex offenders has asked a federal judge in Oakland, Calif., to block the measure pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality.
The law, International Megan’s Law to Prevent Demand for Child Sex Trafficking, mandates the State Department to add a “unique identifier” to passports of Americans convicted of sex crimes involving minors and that U.S. officials to alert foreign governments when those Americans travel abroad.
The judge, Phyllis J. Hamilton, is scheduled to hear arguments on Wednesday on whether to suspend implementation of the passport mark and the notification requirement. The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional.
“For the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship,” says the lawsuit, filed on Feb. 8 in federal district court in Oakland, Calif.
The new law codifies a nearly decade-old program called Operation Angel Watch, which U.S. officials said has helped to curb child-sex tourism by alerting countries of sex offenders traveling to them. Supporters say the law will help countries with a lack of resources deal with child predators and encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S. “Knowledge is power in terms of protection,” said Rep. Chris Smith (R., N.J.), who sponsored the bill. Rep. Smith said the passport mark to be created by the State Department will help keep Americans covered by the law from concealing their destination by traveling to a foreign country by way of another to engage in sex tourism.
The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe.... Rep. Smith said he got the idea for International Megan’s Law during a meeting with a delegation of Thai officials about human-trafficking. He asked them what they would do if the U.S. alerted them when a registered offender was traveling to their country and “They said, ‘Well, we wouldn’t give them a visa,’ ” Mr. Smith recalled....
Janice Bellucci, a lawyer who represents the lawsuit’s plaintiffs, said she found few precedents for the passport identifier in her research. Among them: The Nazis confiscated Jewish passports and marked them with a “J,” and the internal passports in the Soviet Union singled out Jews by listing their ethnicity as Jewish, while other citizens were identified by their place of birth, she said.
Mr. Smith rejected the lawsuit’s comparisons and said California Reform Sex Offender Laws, a group Ms. Bellucci is president of, and others have long sought to weaken sex-offender laws. “U.S. law denies passports to delinquent taxpayers, deadbeat parents and drug smugglers,” the congressman wrote in a recent op-ed published in the Washington Post. “The law’s passport provision, however, does not go this far.”
International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to Ms. Bellucci. Nor does it exempt those who were minors at the time of their offense.
Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about 200,000 of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court. “This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.”
March 30, 2016 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)
Sunday, March 27, 2016
"Cities begin to challenge a bedrock of justice: They’re paying criminals not to kill"
The title of this post is the headline of this lengthy Washington Post article about an alternative sentencing program sure to stir questions and controversy. Here are some of the details (with a key line emphasized):
RICHMOND, Calif. — The odds were good that Lonnie Holmes, 21, would be the next person to kill or be killed in this working-class suburb north of San Francisco. Four of his cousins had died in shootings. He was a passenger in a car involved in a drive-by shooting, police said. And he was arrested for carrying a loaded gun.
But when Holmes was released from prison last year, officials in this city offered something unusual to try to keep him alive: money. They began paying Holmes as much as $1,000 a month not to commit another gun crime.
Cities across the country, beginning with the District of Columbia, are moving to copy Richmond’s controversial approach because early indications show it has helped reduce homicide rates. But the program requires governments to reject some basic tenets of law enforcement even as it challenges notions of appropriate ways to spend tax dollars.
In Richmond, the city has hired ex-convicts to mentor dozens of its most violent offenders and allows them to take unconventional steps if it means preventing the next homicide. For example, the mentors have coaxed inebriated teenagers threatening violence into city cars, not for a ride to jail but home to sleep it off — sometimes with loaded firearms still in their waistbands. The mentors have funded trips to South Africa, London and Mexico City for rival gang members in the hope that shared experiences and time away from the city streets would ease tensions and forge new connections. And when the elaborate efforts at engagement fail, the mentors still pay those who pledge to improve, even when, like Holmes, they are caught with a gun, or worse — suspected of murder.
The city-paid mentors operate at a distance from police. To maintain the trust of the young men they’re guiding, mentors do not inform police of what they know about crimes committed. At least twice, that may have allowed suspected killers in the stipend program to evade responsibility for homicides.
And yet, interest in the program is surging among urban politicians. Officials in Miami, Toledo, Baltimore and more than a dozen cities in between are studying how to replicate Richmond’s program. The District of Columbia is first in line.
Implementing the Richmond model has emerged as a central fight this year between D.C. Mayor Muriel E. Bowser and the D.C. Council. Bowser (D) is opposed to the strategy, arguing that the city should instead use its resources to fund jobs programs and that there is little independent analysis of the Richmond program. The mayor did not include money for it in her proposed 2017 budget released Thursday, and Police Chief Cathy L. Lanier said she is skeptical of the need for the Richmond-style program and has not seen sufficient data to verify its results.
She and Kevin Donahue, Bowser’s deputy mayor for public safety, question the veracity of Richmond’s claims of having saved so many of the city’s most violent offenders, since mentors — and not police — pick the participants and there has not been a control group used to measure outcomes. “There’s never been a real evaluation of the program,” Lanier said. “They didn’t design the program to allow it to be evaluated,” Donahue added.
But this month, the D.C. Council unanimously approved the idea as the best response to a surge of violent deaths that rocked the city last year. D.C. Council member Kenyan R. McDuffie (D-Ward 5) has promised to shift money from the mayor’s other law-enforcement priorities to launch the program. He said the successes in Richmond cannot be ignored by city leaders serious about reducing crime. That’s because five years into Richmond’s multimillion-dollar experiment, 84 of 88 young men who have participated in the program remain alive, and 4 in 5 have not been suspected of another gun crime or suffered a bullet wound, according to DeVone Boggan, founder of the Richmond effort....
Richmond’s decision to pay people to stay out of trouble began a decade ago during a period of despair. In 2007, Richmond’s homicide tally had surged to 47, making it the country’s sixth-deadliest city per capita. In the 20 years prior to that, Richmond lost 740 people to gun violence, and more than 5,000 had been injured by a bullet. Elected leaders of the heavily African American city of about 100,000 began treating homicides as a public health emergency....
Operation Peacemaker Fellowship is working with its fourth class of recruits, and [Boggan] no longer needs to wow participants with money upfront. Dozens of former fellows on the streets of Richmond — alive and not in jail — are his best advertisement, he said.
Those in the program begin by drafting a “life map” and setting goals — such as applying for a job, going back to school or communicating better with family. They meet with facilitators who, unbeknown to the young men, are psychologists or sociologists. Together, they talk through issues in what amounts to stealth therapy. If they remain engaged for six months, meeting with mentors several times a week, they start to receive monthly payments between $1 and $1,000, depending on their level of participation. The maximum amount paid is $9,000 over the 18-month fellowship. The program has handed out $70,000 a year, on average, since 2010, Boggan said.
Boggan believes that travel is another key to the program’s success. He sets aside $10,000 per fellow for trips that are often the first time participants have left the state or the country. But fellows must agree to partner with someone they have either tried to kill or who attempted to kill them. “Wild, right?” Boggan says. “But they get out there and realize, ‘Hey, this cat’s just like me.’ ” Boggan’s measure of success: No fellows who have traveled together have been suspected in subsequent shootings against one another.
Boggan and his staff are used to questions — and criticism — about the money. How do they know it doesn’t go to drugs? Or bullets? They maintain that the money is an indispensable tool, a way to keep kids engaged long enough to make a difference in their lives. “This is controversial, I get it,” Boggan said. “But what’s really happening is that they are getting rewarded for doing really hard work, and it’s definite hard work when you talk about stopping picking up a gun to solve your problems.”...
Many details of how the District would replicate Richmond’s program have yet to be determined, but one aspect is clearly more complicated than in Richmond. While the California strategy relies on private donors to fund the stipends and travel, the District would probably use roughly a half-million dollars annually in taxpayer money. Asked whether he could justify the expense if it came from the city’s general fund, Richmond Mayor Tom Butt was uncertain. “I’d try really hard to find outside funding,” he said.
I fully understand the how controversial this program could be if framed as a "cash for killers" program that use taxpayer moneys to provide cash rewards to the most violent offenders simply for making efforts not to keep killing. But, as the first phrase highlighted above is meant to suggest, if this program is framed as a public health initiative that helps keep young people alive and healthly for minimal costs, then this program could look and should sound much more palatable to taxpayers. Of particular note, the latest DC budget proposal under the "Health and Human Services" line item, allocates $800,000 to something called the "Joyful Foods initiative." The early success of the Peacemaker Fellowships in Richmond, California suggests that devoting that money to reducing gun violence in DC may contribute much more to health and human services than making sure food in the District is viewed as joyful.
Not to be overlooked, especially when we focus on a town like DC where political money flows from private sources to all sort of political advocacy groups, it would seem very possible that enterprising individuals might be able to fundraise effectively for this cause. For example, a little research has revealed that both the NRA and the Brady Campaigns spend over $3,000,000 annually lobbying about firearm laws and policies. If both groups could simply be convinced to spend 10% of these lobbying budgets on a DC gun violence prevention program like Peacemaker Fellowships, this would itself provide $600,000 in resources for this kind of programming.
Thursday, March 24, 2016
Am I crazy to really like the "White Collar Crime Offender Registry" now being developed in Utah?
The question in the title of this post is prompted by this notable new Wall Street Journal article headlined "Financial Crime: a New Twist on the Sex-Offender Registry: Utah is most aggressive jurisdiction in publicly shaming financial criminals." Long-time readers likley know that I tend to be a supporter of shaming sanctions as an alternative to imprisonment in some settings, and I see financial crimes as an especially useful arena to explore alternative punishments. Here are details on how Utah is engaged in an alternative sanctions experiment:
States have taken the idea of the sex-offender registry and applied it to everything from kidnapping to animal abuse. Utah is expanding it into new territory: financial crime. An early version of the White Collar Crime Offender Registry, which has been online since February, includes more than 100 people convicted of tax, credit-card or insurance fraud; thefts from employers or friends; and bilking investors.
They include 41-year-old Kenneth Ray Wagner. “Eye Color: Blue. Hair Color: Blonde … Targets: Insurance company.” The registry displays Mr. Wagner’s mugshot and explains that he was convicted in 2008 of fraud for dismantling his motorcycle, hiding the parts in a storage locker and claiming to his insurance company that it had been stolen.
The list makes Utah the most aggressive jurisdiction in the country when it comes to publicly shaming financial criminals. No other state operates such a list. The Securities and Exchange Commission often shields the identities of offenders. The agency last month refused a public-records request by The Wall Street Journal for information on sanctions paid by specific individuals, saying that providing such information would be “a clearly unwarranted invasion of personal privacy.”
The Financial Industry Regulatory Authority does require disclosure of events like some criminal convictions, regulatory actions and customer complaints. But it only applies to securities professionals, and the disclosures are intermingled in a database that includes more routine facts like work history.
Utah lawmakers say their list, which is being administered by the state’s attorney general, will help protect investors by offering easy access to information about con artists. It could also create leverage to get felons to make their victims whole. Convicts who comply with court orders on time and pay restitution in full won’t appear on the list. “That’s the carrot,” Utah Attorney General Sean Reyes said.
The new policy plunges the state into a broader debate about using name-and-shame tactics to punish convicts who have already served their time. Registries have proliferated rapidly in the U.S., experts say. While some lists restrict access to law-enforcement agencies or fire officials, others can be viewed online by anyone, according to the National Conference of State Legislatures. In addition to the 50 states that publicly track sex offenders, five states including California require registration for arson. Minnesota, Illinois and six others maintain lists of methamphetamine producers. In Indiana, a public website lets visitors use Google Maps to find the location of homes that have been used as meth laboratories. Tennessee requires registration for animal abuse— something nine other state legislatures are debating. Florida law requires registration by anyone convicted of a felony of any kind for up to five years after completing the sentence.
Utah itself maintains a sex-offender and kidnap-offender list, as well as its new financial-crimes registry. In all, the number of Americans on such lists will soon approach a million, if it isn’t already there, said J.J. Prescott, a law professor at the University of Michigan. He warned of possible unintended consequences from applying a public alert designed for sex offenses to other crimes, such as the risk of drug-offender registries being used by addicts to find suppliers....
Utah’s white-collar registry will include anyone convicted of second-degree frauds or other financial felonies since January 2006. A total of about 230 people are expected to be on the registry when it is formally launched in a few months, officials said. The state will generally keep people registered for 10 years after a first offense. A second offense adds another decade, and people with three convictions never get off.
Mr. Wagner’s lawyer, Tara Haynes, said he already has paid a considerable price for his crime. He appeared on the list after serving 90 days in county jail and being ordered to pay more than $16,000 in restitution. “He is not a white-collar criminal,” Ms. Haynes said. "He’s a blue-collar construction worker.”
Utah lawmakers voted last year to create the registry to stem what they called a growing tide of white-collar crime in the state, particularly by con artists preying on its close-knit religious communities. Convicts need to fill out a form to register, arrange to have a photo taken and update their address and phone number if they change. All but one entry in the early version of the registry includes a photo, typically a mugshot, while some also list aliases such as “ Missy Moniker” or “Connie.”
The site has some glitches. It included one man who died of cancer last year—he was removed after The Wall Street Journal sent officials a link to his obituary—and another where the wrong offense was initially shown. Mr. Reyes said the state is still vetting the registry, including by asking offenders to check the accuracy of their entries. “We want to be fair,” he said.
Some legal experts say Utah’s approach could be an improvement on federal efforts to encourage restitution.... The SEC has yet to collect $9.4 billion of $17.7 billion of sanctions it has imposed in the last five fiscal years, according to data on its website.
The question of whether Utah’s registry violates defendants’ rights could end up in court. Clair Rulon Hawkins, a former employee of a Utah real-estate firm, was convicted in 2013 of defrauding an investor who lost $852,000 deposited on two lots of land that Mr. Hawkins helped sell. Mr. Hawkins served four months in Salt Lake County jail and a halfway house. He remains subject to a restitution order for more than $1.4 million. The 50-year-old is appealing his conviction. He also plans a legal challenge to his inclusion on the Utah registry, arguing it violates his constitutional rights to due process, privacy and economic liberty, his lawyer said.
State lawmakers and other officials hope their idea will catch on nationally. Mr. Reyes, the attorney general, said his office has been contacted by legislators in several states as well as by federal prosecutors interested in replicating the experiment. “I know we’re the first in the nation for doing it,” said Michael McKell, a Republican who sponsored the bill in the Utah House to create the white-collar registry. “I certainly don’t think we will be the last.”
Monday, March 07, 2016
Extended discussion of sex offender registries as life sentences for juveniles
The new issue of The New Yorker has this very lengthy article authored by Sarah Stillman titled "The List: When juveniles are found guilty of sexual misconduct, the sex-offender registry can be a life sentence." I recommend the piece in full, and here are just a few snippets:
Kids who sexually harm other kids seldom target strangers. A very small number have committed violent rapes. More typical is the crime for which Josh Gravens, of Abilene, Texas, was sent away, more than a decade ago, at the age of thirteen. Gravens was twelve when his mother learned that he had inappropriately touched his eight-year-old sister on two occasions; she sought help from a Christian counselling center, and a staffer there was legally obliged to inform the police. Gravens was arrested, placed on the public registry, and sent to juvenile detention for nearly four years. Now, at twenty-nine, he’s become a leading figure in the movement to strike juveniles from the registry and to challenge broader restrictions that he believes are ineffectual. He has counselled more than a hundred youths who are on public registries, some as young as nine. He says that their experiences routinely mirror his own: “Homelessness; getting fired from jobs; taking jobs below minimum wage, with predatory employers; not being able to provide for your kids; losing your kids; relationship problems; deep inner problems connecting with people; deep depression and hopelessness; this fear of your own name; the terror of being Googled.”
Often, juvenile defendants aren’t seen as juveniles before the law. At the age of thirteen, Moroni Nuttall was charged as an adult, in Montana, for sexual misconduct with relatives; after pleading guilty, he was sentenced to forty years in prison, thirty-six of which were suspended, and placed on a lifetime sex-offender registry. In detention, the teen-ager was sexually assaulted and physically abused. Upon his release, his mother, Heidi, went online in search of guidance. “I’m trying to be hopeful,” she wrote on an online bulletin board, but “I wonder if he even stands a chance.”
Last fall, she contacted a national group called Women Against Registry, joining the ranks of mothers who are calling into question what a previous group of parents, those of victimized children, fought hard to achieve. Recently, common ground between the two groups has emerged. Many politicians still won’t go near the issue, but a growing number of parents — along with legal advocates, scholars, and even law-enforcement officials — are beginning to ask whether the registry is truly serving the children whom it was designed to protect.
If the sex-offender registry is a modern development, the impulse behind it — to prevent crimes by keeping tabs on “bad actors” — is not. In 1937, after the sexualized murders of several young girls in New York, Mayor Fiorello LaGuardia called for the police to keep a secret list of “all known degenerates.” A decade later, California built the first database of sex offenders, for private use by the police. But the practice of regulation took off only in the nineteen-nineties, when a tragedy changed the public’s sense of the stakes involved.
Thursday, March 03, 2016
Has the federal Adam Walsh Act been a success and should it be reauthorized?
The question in the title of this post is prompted by this recent press release coming from the office of Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, which is titled "Grassley Introduces Bill to Aid States, Public in Tracking Sex Offenders." Here is how it begins:
Senate Judiciary Committee Chairman Chuck Grassley today introduced legislation to assist states in preventing future abuses by registered sex offenders. The Adam Walsh Child Protection and Safety Act Reauthorization helps to improve tracking of sex offenders through federal support of state registries and dedicated resources to target offenders who fail to comply with registration requirements.
“Preventing sex crimes, especially by known offenders, requires a team effort by law enforcement at every level. Congress has passed laws to promote a unified approach to sex offender registration and notification. This bill will help to ensure that our state and local law enforcement officials continue to have the federal resources and assistance they need to successfully track offenders with a history of crimes against children,” Grassley said.
The Adam Walsh Child Protection and Safety Act of 2006 established nationwide notification and registration standards for convicted sex offenders to bolster information sharing between law enforcement agencies and increase public safety through greater awareness. Grassley’s bill reauthorizes key programs in the 2006 act to help states meet the national standards and locate offenders who fail to properly register or periodically update their information as the law requires.
Specifically, Grassley’s bill reauthorizes the Sex Offender Management Assistance Program, a federal grant program that assists state and local law enforcement agencies in their efforts to improve sex offender registry systems and information sharing capabilities. The bill also authorizes resources for the U.S. Marshals Service to aid state and local law enforcement in the location and apprehension of sex offenders who fail to comply with registration requirements.
The Adam Walsh Child Protection and Safety Act is named for a six-year-old Florida boy who was kidnapped and murdered in 1981. Adam’s father, John Walsh, worked closely with Congress to develop the 2006 law and the reauthorization that was introduced today. Cosponsors of the bill include senators Chuck Schumer (D-N.Y.), Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif.).
Candidly, I am not entirely sure what would be the best metrics for judging the "success" of the Adam Walsh Act, and perhaps that should be the question in the title of this post. So, dear readers, I would be eager to hear thoughts both on how we ought to assess the success of the AWA and also on whether it ought to be reauthorized.
March 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (14)
Tuesday, February 09, 2016
Mark you calendar for ASKS, a big alternative sentencing summit next month in DC
I am pleased to be able to promote an exciting event taking place next month: the Alternative Sentencing Key-Stakeholder Summit (ASKS), at Georgetown University Law Center, DC on March 7-8, 2016. Here is a link for registration, and here is the ASKS gameplan and a Q&A via its website:
Summit Overview: Alternative sentencing has been at the heart of improving public safety and includes successful sentencing, reentry and other fiscally responsible criminal justice policies and programs both in the U.S. and around the globe. As the U.S. starts 2016 with commitments from the President and Congress to pass meaningful federal criminal justice reform legislation, the time is right to evaluate the role alternative sentencing can play in furthering the key objectives of public safety and fiscal responsibility.
More Info: Who will participate in the ASKS Summit? The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.
What are the ASKS Summit objectives? Beyond education, ASKS will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:
- Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
- Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
- NGOs that can help to support broader application of effective alternative sentencing, eg. ubiquity of access and other measures and peripheral programs to help ensure successful reentry.
Monday, February 08, 2016
Notable battles in Texas over local sex offender residency restrictions in small towns
A helpful reader alerted me to this interesting new AP article headlined "More Than 20 Texas Town Repeal Sex Offender Residency Law," which reports that a "broad legal challenge has led more than 20 towns in Texas to ease restrictions over the last few months on where sex offenders can live instead of fight a costly battle in court." Here is more:
While other states, including neighboring Oklahoma, continue to push offenders away from some neighborhoods, about 45 Texas towns received letters in November from the group Texas Voices for Reason and Justice demanding they repeal residency restrictions. The nonprofit, which is critical of sex offender laws it considers ineffective, also has sued 14 towns and has a powerful ally — the state attorney general's office. "We advocate an individual assessment on a case-by-case basis to determine if someone is a threat to the community," said Richard Gladden, an attorney for the group. "The myth that people who commit sex offenses just generally are unable to control their sexual conduct is just that, a myth."
At issue is how Texas' small towns are differentiated from larger ones. Communities with fewer than 5,000 people are "general law" towns, which can't adopt an ordinance that the Legislature hasn't permitted. Dozens of these smaller communities have restricted where sex offenders can live — usually with the purpose of keeping them away from schools and other places children gather — but only later learned they've run afoul of state rules. "Unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live," according to a 2007 opinion signed by then-AG Greg Abbott, who's now Texas governor. Larger cities fall under "home rule," which means they have "a constitutional right of self-government," Abbott wrote.
But the Texas Municipal League, which provides support services and lobbies on behalf of cities, is pushing for legislative action that reverses Abbott's decision. "It's new where a general-law city has had its authority taken away by an attorney general's opinion," executive director Bennett Sandlin said.
The state allows leaders in general law towns to fashion municipal rules for "the good government, peace or order of the municipality," Sandlin said, such as zoning and noise control laws. But state officials can step in when local laws overreach....
Krum Mayor Ronald Harris Jr. said litigation prevents him from talking about whether his town will repeal its law, but he criticized the Legislature for not acting on behalf of small-town Texas. "They're saying that we as a small town don't have a right to have an ordinance to protect our children and our residents, but larger towns do," Harris said.
The city manager of Alvarado, which is south of Fort Worth, has told WFAA-TV in Dallas that although residents expressed concern about repealing the law, they know valuable town money could evaporate under the weight of a lawsuit. "They're disappointed that we're not able to regulate our own town," said Clint Davis, who did not respond to a message left by The Associated Press for comment....
Gladden argues myriad laws aren't necessarily benefiting public safety. In many cases, he said, an innocent "Romeo and Juliet relationship" can result in a young man being prosecuted for having sex with a minor and labeled a sex offender for the rest of his life. Meanwhile, federal statistics show the overwhelming number of sex abuse cases involving children are perpetrated by a family member or friend of the family, and not an anonymous stranger, he said. "Obviously, people are concerned about their kids and sometimes people are so overwhelmed by their natural instinct to protect their children that they don't necessarily use their heads and see what works and doesn't work," Gladden said.
But Sandlin argues the residency restrictions are common-sense measures to protect children and don't amount to an unwarranted hardship, as some would claim, because Census data shows more than 90 percent of land in Texas is outside incorporated cities. "Cities are dense urban areas where it makes sense to regulate where sex offenders live," Sandlin said.
I have long considered political and legal disputes over local sex offender residency restrictions to be among the most interesting and dynamic criminal justice arenas for debating what might be called "local federalism." But I am not aware of any other state in which certain localities were allowed to enact sex offender residency restrictions and others were not, and I suppose this story is just still further proof that Texas often has its own unique approach to justice.
February 8, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)
Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws
A helpful reader alerted me to this notable new New York Daily News report about another notable effort by a notable federal district judge in the Eastern District of New York expressing his disinclination to punish a child porn downloader as severely as federal prosecutors seem to want. The article is headlined "Queens man charged with receiving 50,000 kiddie porn images can have unsupervised contact with his children," and here are excerpts:
A federal judge pooh-poohed the concerns of law enforcement officials, ruling that a Queens man charged with receiving nearly 50,000 kiddie porn images on the “dark Web” can have unsupervised contact with his two young children, the Daily News has learned.
“It comes down to money,” Judge Frederic Block explained in Brooklyn Federal Court last week. “It’s a financial burden on the family if they have to hire people to sit there and watch them. I don’t see his children at risk.”
Both the Brooklyn U.S. attorney’s office and the pretrial services office of the Eastern District of New York disagreed, arguing that Naray Palaniappan, a computer consultant, should not be alone in his Jackson Heights home with his children, ages 2 and 4. The federal Adam Walsh Child Protection and Safety Act routinely requires, as a condition of bail, that defendants in Palaniappan’s situation be accompanied by a monitor in the presence of children.
Palaniappan, 39, was nabbed last year in a nationwide FBI investigation of online pervs who troll a hidden region of the Internet, known as the dark Web, which is not accessible through conventional search engines. Palaniappan, who investigators linked with the user name “JiminyCracket,” allegedly received a massive trove of child pornography that included videos of young girls being raped by adult men.
Assistant U.S. Attorney David Gopstein advised the judge that Palaniappan failed a lie detector test, administered by the FBI, in which he was asked if he had sexual contact with minors. He has yet to complete a voluntary parenting program administered by the city, which could have bolstered his case that he isn’t a danger. “There are troubling issues and we are talking about children,” Gopstein argued.
But Block, unmoved, lifted the restriction two weeks ago. On Thursday, Block brought Palaniappan and his wife into court for an update. “I assume he hasn’t molested his children since we last left,” Block said. Palaniappan’s wife told the judge she didn’t object to leaving their kids alone with him.
The judge also blew up when a prosecutor told him that Palaniappan had been offered a plea deal that calls for a mandatory five-year sentence. “You think this man should be in jail for five years?” Block asked three times.... Block threatened to have Palaniappan’s case transferred to Federal Judge Jack Weinstein, who has openly challenged mandatory tough sentences in some child pornography cases. It was unclear whether he was serious.
Defense lawyer Zachary Margulis-Ohnuma told The News that Block’s decision is well-reasoned and based on several reports, all positive, by the family service agencies overseeing Palaniappan’s case.
The way in which Judge Block handled this pre-trial issue of supervision leads me to think, ironically, that federal prosecutors are now almost certain to demand that this defendant plead guilty to a child porn receipt charge which carries a five-year mandatory minimum rather than to allow him only to plead to a CP possession charge which carries no mandatory minimum. Clearly, Judge Block does not view this defendant as a threat in the same way federal prosecutors do, and that suggests to me federal prosecutors will use the tools they have at their disposal to try to legally preclude Judge Block or others from showing leniency to this defendant.
Especially in the wake of Judge Jack Weinstein's recent notable sentencing ruling in US v. RV (discussed here), I am starting to sense there may be something of a sentencing turf war starting to emerge in Eastern District in these kinds of child porn cases. For that reason and others, I would now not be surprised if the EDNY federal prosecutors are going to be even less inclined to cut any child porn defendants any kind of breaks in the plea process in all current and future cases.
Sunday, February 07, 2016
"Restitution and the Excessive Fines Clause"
The title of this post is the title of this notable new paper authored by Kevin Bennardo now available via SSRN. Here is the abstract:
Restitution is a component of many criminal sentences. There is little agreement, however, upon whether and how the Eighth Amendment of the Constitution limits restitution orders in criminal cases. Courts have long been divided over whether the Excessive Fines Clause applies to restitution orders at all, whether to apply the “grossly disproportional” test to restitution orders or some other causation-based test, and how to measure gross disproportionality in the restitution context.
First, the Excessive Fines Clause of the Eighth Amendment should be read as a limit on restitution orders in criminal cases. The Eighth Amendment applies because these monetary payments are partially punitive. And, although restitution payments are not made to the sovereign, the concept of “fines” for purposes of the Excessive Fines Clause is properly understood to encompass payments to third parties that result from government-initiated action.
Second, the same “grossly disproportional” test that has been applied to criminal fines and forfeitures should apply to restitution orders as well. Indeed, all monetary sanctions should be pooled together for purposes of a single Excessive Fines Clause proportionality analysis. The constitutionally-relevant question should be whether an offender’s total monetary sanction is grossly disproportional to the gravity of the offense. Although causation between the offense conduct and the victim’s loss is generally a statutory requirement of restitution orders, it is not a constitutional one. The causation requirement furthers restitution’s remedial purpose; it is not relevant to the Eighth Amendment’s excessiveness inquiry, which functions to limit the punitive severity of monetary sanctions.
Lastly, the question of gross disproportionality is largely an exercise of judgment that should be left to the judiciary. Some courts have inappropriately wholly relied on analyzing whether the monetary sanction was authorized by the legislature in assessing the constitutionality of the penalty. This approach inappropriately collapses the constitutional inquiry into the statutory one. Although the statutory restitution or fine range may be a useful input in the constitutional analysis, it cannot be the sole component. In the end, the judiciary's independent judgment must be trusted to weigh proportionality and detect unconstitutionally excessive monetary sanctions.
Wednesday, February 03, 2016
"American Exceptionalism in Probation Supervision"
The title of this post is the title of this notable new data brief published by Robina Institute of Criminal Law and Criminal Justice. The core product is this interesting graphic (which is really hard to see here, but is very worth checking out). Here is some of the Robina Institute's text that explains some of the graphic's data details:
It is well known that the U.S. leads the world in incarceration rates. This Data Brief shows that, compared with Europe, America is similarly “exceptional” for its high rates of probation supervision. The average probation supervision rate for all fifty states is more than five times the average rate for all European countries included in the most recent Council of Europe data. Several U.S. States with the highest rates of probation supervision (e.g., Ohio, Rhode Island, Idaho, and Indiana) have rates that are eight-to-nine times the average European rate. Such stark differences exist despite the fact that many countries in Europe have overall crime rates that are quite similar to the U.S.
This Data Brief demonstrates for the first time that America suffers from “mass probation” in addition to “mass incarceration.” Although probation has often been thought of as an “alternative” to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision. Over the past several decades, the number of people under probation supervision in the U.S. has increased greatly. Nearly 4 million adults were under probation supervision across America at year-end 2013. In all reporting European countries, with roughly twice the population of the U.S., only 1.5 million adults were under probation supervision.
These findings lead to many important questions of law and policy. Most states should closely reexamine the numbers of people who are placed on probation each year, and the lengths of terms they are required to serve. Options for “early termination” of the lowest-risk and most successful probationers should be explored. Some experts in the field allege that probationary sentences do little to control crime, and frequently do more harm than good. Community supervision can make offenders’ “reentry” into the law-abiding community more difficult than it needs to be, such as when meetings with probation officers interfere with work responsibilities, or supervision and program fees block probationers’ ability to support themselves and their families.
Concerns of this kind should be carefully evaluated by lawmakers in every state. If some uses of probation are counterproductive to the reentry process, or outright “criminogenic,” it should be a high priority everywhere to discontinue them. The financial expense and opportunity costs of “mass probation” should also be assessed nationwide. High probation supervision rates cost American taxpayers a great deal of money, and not just in the funding of probation agencies. National data suggest that a large share of all prison admissions come from probation revocations — a substantial number of which are for “technical” violations of sentence conditions rather than new criminal conduct. Far from being an “alternative” to incarceration, probation has been a “feeder” institution or a “conduit” to our prisons and jails. In this respect, misguided probation policy has almost certainly been a major contributor to America’s excesses in prison policy. The problems of mass incarceration and mass probation are intimately linked, and they must be tackled together.
"Do sex offenders deserve a scarlet letter on their passport?"
The question in the title of this post is the headline of this Los Angeles Times editorial. Here is how it starts:
After rousing themselves from the 30-plus-year bad trip that was the war on drugs — or rather, the war on drug users — many Americans in and out of elected office looked around for someone else to persecute. Someone, somewhere, must be so depraved and hateful that liberals and conservatives, Democrats and Republicans could join in common cause to vilify them.
They appear to have found their target: sex offenders. The current case in point is a congressional proposal to alert the nations of the world that particular U.S. citizens who have committed sex offenses against minors are planning to visit. Passports would be specially marked so that other countries could turn travelers away at the border because of old crimes for which they have already served their time in the U.S.
This vindictive bill has been wisely rejected numerous times in the past, but now it's heading to President Obama's desk. He should veto it.
Sex offenses against minors are particularly horrendous crimes. But when offenders have completed their sentences and periods of supervision, there is no more reason to continue hounding and harassing them than convicted murderers or drug traffickers, who don't bear scarlet letters on their passports.
But wait, some supporters argue, people who commit sex crimes against children are a special case. As soon as they've done it once, they'll want more, posing imminent danger to any underage person anywhere. Their front doors should be marked to warn trick-or-treaters. They should be banned from park benches.
This blatantly false argument thrives on ignorance. There are indeed mentally disordered sex offenders whose conditions make them extremely high risks to commit more crimes of the same variety. Some may target minors. But that is far different from saying that anyone convicted of a sex offense against a minor falls into that very narrow category. Corrections officials in California report that most sexual crimes committed by adults against minors occur among family members, and that the rate of recidivism is fairly low.
Prior related post:
Tuesday, February 02, 2016
"International Megan's Law" heading now to Prez Obama's desk
As reported in this dispatch from The Hill, the US House of Representatives "easily cleared legislation on Monday to expand efforts within the Department of Homeland Security to track registered child sex offenders’ travel plans as a means of combatting human trafficking." Here is more about a bill often called an international Megans Law:
The measure, passed by voice vote, would codify the Department of Homeland Security’s (DHS) “Operation Angel Watch” program that determines whether countries should be notified of sex offenders’ travel. Under the legislation, sex offenders would be required to report to law enforcement when they plan to travel internationally. Sex offenders who fail to comply would face up to ten years in prison.
In addition, the State Department will be obligated to create a unique identifier for child sex offenders’ passports. Lawmakers said the provisions would help prevent sex offenders from trying to break the law undetected. “Child predators thrive on secrecy,” said Rep. Chris Smith (R-N.J.), the bill’s author.
The House previously passed a version of the bill last January, and the Senate later approved it with amendments by unanimous consent in December. Congress last year approved legislation to create a fund for victims of sex trafficking and give prioritize states for federal grants if they establish “safe harbor” laws for child victims of trafficking.
Last month here at The Volokh Conspirary, David Post expressed concerns about this legislation. The title of the post reveals the basic nature of his concerns: "The yellow star, the scarlet letter, and ‘International Megan’s Law’." The Marshall Project has this new piece echoing similar themes under the headline "Congress Acts to Mark Passports of Sex Offenders: Target of legislation is sex-traffickers; critics call it a ‘scarlet letter’."
Monday, February 01, 2016
Seventh Circuit panel upholds Wisconsin's lifetime GPS monitoring for certain sex offenders against various constitutional complaints
As reported in this local Wisconsin article, headlined "Court upholds GPS tracking of sex offender convicted before law passed," a Seventh Circuit panel late last week reversed a district judge's determination that a Wisconsin law requiring lifetime GPS tracking of certain sex offenders was constitutionally problematic. Here are the basics from the start of the news report:
Making a Wisconsin sex offender wear a GPS anklet for life, when he was convicted before that was the law, does not violate the constitutional prohibition against retroactive punishment, a federal appeals court has ruled. A three-judge panel of the 7th U.S. Circuit Court of Appeals on Friday reversed a Green Bay federal judge who found the lifetime tracking improper for 72-year-old Michael Belleau. The case had been argued before the court earlier this month.
In 2012, two years after Department of Corrections officials affixed an ankle bracelet on him after his discharge from civil commitment, Belleau sued, claiming the practice amounted to an ex post facto law, banned by the Constitution, as well as unreasonable search and seizure without a warrant.
In September, Chief U.S. District Judge William Griesbach agreed, saying Belleau had served his sentences and couldn't be punished further just because the state now thinks the original sentence was too lenient. "Nor may the state force Belleau to wear a GPS tracking device around his ankle so that it can record his movement minute-by-minute for the rest of his life because it believes he might commit another crime in the future," Griesbach wrote. "The state's authority over the individual is not unlimited."
But Judge Richard Posner agreed with the state's position that the GPS monitoring is merely regulatory, not punitive, and doesn't limit where Belleau can go, like someone on probation. Posner also agreed that it's not an illegal retroactive law because the monitoring was triggered by Belleau's discharge from civil commitment in 2010, after the GPS law took effect in 2006, not his earlier criminal convictions. "So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor."
The full ruling in Belleau v. Wall, No. 15-3225 (7th Cir. Jan. 29, 2016), which rejects both a Fourth Amendment claim and an ex post facto claim lodged by the sex offender to the lifetime GPS requirement, is available at this link.
Saturday, January 02, 2016
"Throwaway Children: The Tragic Consequences of a False Narrative"
The title of this post is the title of this notable new paper authored by Catherine Carpenter now available via SSRN. Here is the abstract:
Truth be told, we are afraid for our children and we are afraid of our children. The intersection of these disparate thoughts has produced a perfect storm. We have created increasingly harsh sex offender registration schemes to protect our children from sexual abuse. At the same time, fear of our children ensnares and punishes them under the very same laws that were designed to protect them. Yet, what compels action is premised on a false narrative that includes flawed studies on recidivism rates and misguided case decisions that embraced these findings.
In this article, I explore the inherently unfair and deeply flawed practice of mandatory lifetime registration for children who commit sex offenses. Examination reveals two fallacies in a system that condemns children to lifetime monitoring: the breadth of its ensnarement, and the presumption of a child’s continued sexual predatory behavior. Fueled by emotional rhetoric, both are tightly bound in a fundamentally false narrative that is unnecessary and wholly damaging for the child registrant.
The utility of an overly-simplified registration scheme comes with a hefty price tag: the acknowledgement that mandatory lifetime registration captures and shatters the lives of many non-dangerous children. It is a price tag we should no longer be willing to bear. In the face of overwhelming statistical evidence to the contrary, we must commit to changing the false narrative that children who commit sex offenses are presumed to become sexually dangerous adults. We must commit to replacing it with a narrative that acknowledges that recidivism rates are low and that mandatory lifetime registration is both unnecessary and devastating.
Wednesday, December 30, 2015
How can a sex offender prove he is no longer a threat ... three decades after molesting a child?
The question in the title of this post is prompted by this local article about a state court ruling from New Hampshire headlined "Judge rules convicted sex offender must remain on registry until he can prove he is no longer a threat." Here is the interesting backstory:
A Manchester sex offender convicted 28 years ago will remain a lifetime registrant unless and until he proves he is no longer a threat, which, at least for now, he can ask to do at any time, a judge in Concord has ruled. The decision, issued last week and distributed Monday by Merrimack County Superior Court, caps the latest phase in a years-long campaign by the man, identified by the court under the pseudonym John Doe, to become eligible for public housing.
Doe’s real name is Norman St. Hilaire. He has long pressed to be removed from the state’s public registry of sex offenders, arguing that his conviction predated its creation. More recently, though, he asked the court to table that question and instead recognize that a recent state Supreme Court decision effectively lifts his lifetime status -- a smaller change, but one that could be enough to secure him housing eligibility.
In his new ruling, Judge Richard McNamara quickly rejected the request, writing that the higher court’s decision allows St. Hilaire to change his status only if and when he proves he is no longer a threat. “If he never succeeds in showing that he is not a danger to the public, he must continue to register,” McNamara wrote. “It follows that the only accurate way to describe his status at the current time is that of a lifetime registrant.”
St. Hilaire is currently a Tier III “lifetime” offender, the state’s highest sex offender category. His attorneys had claimed he should no longer be classified as such because he now has the chance to petition to get off the registry, a privilege unavailable to Tier III offenders convicted after the registry’s creation in the early 1990s. Tier III offenders convicted today have no opportunities to get off the list.
St. Hilaire’s case was scheduled for an evidentiary hearing in November, but he backed out shortly before, citing his victim’s request to testify. She and victims advocates suspect he was worried she would easily derail the effort by describing the abuse and possibly disclosing new allegations (though the statute of limitations on new charges involving her has passed).
McNamara’s ruling was only a partial win for state prosecutors, who not only objected to St. Hilaire’s petition but also asked that he be barred from bringing another request for five years. Like the Supreme Court, McNamara deferred to the Legislature on that question, saying it’s their responsibility to set parameters for how frequent the reviews should be.
Several state lawmakers are proposing new parameters, and hearings on their legislation, sponsored by Republican Senate Majority Leader Jeb Bradley and two dozen others, are expected to begin next month. The bill prohibits offenders from getting off the list if they have been convicted of serious crimes since their original convictions. Among other things, it also requires that victims get the chance to address the court, and that offenders whose petitions have been denied wait five years before petitioning again.
Amanda Grady Sexton, director of public policy for the New Hampshire Coalition Against Domestic and Sexual Violence, said the proposed language mirrors the requirements in place for lower tiered offenders who want to be removed from the registry. Sexton called McNamara’s ruling “a big win for victims.”...
In arguing earlier this month for the five-year ban, Assistant Attorney General Dianne Martin said the victim, now in her 40s and living out of state, “had to go through preparation for this case, and she had to relive all the events that she suffered as a child.” She should not have to constantly wonder if and when St. Hilaire will bring another petition, Martin said.
Chapman countered that St. Hilaire, who is 66 and has physical disabilities, had no plans to request a hearing, but hoped to reserve the right to do so in case his physical condition deteriorates further. St. Hilaire has not been present for the court proceedings. He was arrested last month and charged with failure to register, a felony. Police have said he created a Facebook account but never reported it, as required. He is out on bail and was scheduled for an arraignment at the end of this month.
St. Hilaire was convicted three decades ago of molesting the woman when she was a young teen in Hooksett, once in 1983 at Lambert Park and again the next year at their home, where the woman’s mother and three other children also lived. He was placed on probation and ordered to attend sex offender counseling, which he did weekly for two years. In an interview last month, the victim said the abuse was far more pervasive than the convictions reflected. She said St. Hilaire sexually abused her numerous times over a decade, starting as a toddler and continuing into adolescence.
December 30, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (11)
Sunday, December 20, 2015
Michigan Supreme Court takes up punishing questions about lifetime sex offender registration
As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago." Here is more about the case and context:
The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.
In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”
The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.
The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:
The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.
The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.
December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)
Sunday, December 13, 2015
Encouraging DUI alternative sentencing story from South Dakota
The AP this past week had this encouraging story about an alternative approach to drunk driving offenses headlined "States encouraged to mull South Dakota sobriety program." Here are excerpts:
Twice a day for three years, Chris Mexican has showed up at the county jail in Pierre to blow into a tube and prove he hasn't been drinking. After several drunken driving convictions, it has allowed him to remain free and to become a better, more clearheaded father to his kids....
South Dakota's 24-7 sobriety program has helped curb drunken driving and domestic violence, and some incentives for states that adopt the model were included in the $305 billion transportation law that President Barack Obama signed [earlier this month].
The program offers those accused or convicted of an alcohol-related crime an alternative to jail. The provision in the highway law, pushed by U.S. Sen. John Thune, creates an incentive grant totaling about $18 million over four years for states that implement the sobriety program.
It's akin to existing funds for states that have adopted seatbelt requirements or ignition interlock laws. "This will give other states a chance to find out if it works as well," said U.S. Sen. Mike Rounds, who was South Dakota governor when the program began. The new transportation law also allows states that implement a 24-7 program to avoid a penalty that routes construction funds to highway safety.
An independent study released in 2013 by the RAND Corp., a nonprofit think tank, found that South Dakota's program cut the rate of repeat DUI arrests at the county level by 12 percent and domestic violence arrests by 9 percent in its first five years. "These are large reductions when you consider that we're talking about the community level," said Beau Kilmer, who conducted the study and continues to research the program.
Experts say incentive grants are an effective way to encourage states. "When it's a federal law, the word spreads and other communities that are looking for solutions find out about it, so they're much more likely to adopt it themselves," said safety advocate Joan Claybrook, a former National Highway Traffic Safety Administration chief.
South Dakota started the practice in 2005. Participants come to a site each morning and evening to blow into an alcohol breath test. Those who live farther away or who have difficulty remaining sober wear alcohol-monitoring bracelets or have ignition interlock systems in their vehicles. Over the past decade, nearly 40,000 people have participated in South Dakota's twice-daily program, compiling a pass rate of more than 99 percent.
North Dakota and Montana have started similar monitoring systems, and more states are running or planning pilot programs. South Dakota's attorney general, Marty Jackley, has also discussed the program with his counterparts in other states. And West Virginia Attorney General Patrick Morrisey said South Dakota's "very positive" results warrant examination by his state, where a program would require legislative support.
Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification
A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts:
We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q. The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence. In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree. For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.
Thursday, November 12, 2015
Split Ohio Supreme Court rejects constitutional challenge to registration requirement for 21-year-old who had consensual sex with 15-year-old
Any and all college guys in Ohio who may still be dating younger high school girls will want to know about the new Ohio Supreme Court opinion in Ohio v. Blankenship, No. 2015-Ohio-4624 (Nov. 12, 2015) (available here). Here is how the majority opinion gets started:
Appellant, Travis Blankenship, challenges as cruel and unusual punishment the sex-offender-registration and address-verification requirements imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging in unlawful sexual conduct with M.H., a 15-year-old, when he was 21. Because we hold that the Tier II registration requirements imposed upon him are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and to the community’s sense of justice, we affirm the judgment of the court of appeals.
The chief dissent gets started this way:
The framework within which an issue is presented can unduly influence the outcome. For example, if you ask a stadium full of people whether requiring a Tier II sex offender to comply with certain reporting requirements shocks their sense of justice, you are unlikely to receive a single affirmative response. But... but add that the offender was an adult male who had sex with a 15-year-old girl ...[and] add that the offender was a 21-year-old male, that the 15-year-old girl consented, and that the registration and address-verification requirements must be complied with every six months for 25 years, and now we are at the threshold. Many will see the consent as a mitigating factor, many will see the relatively modest age difference as a mitigating factor, and many will see the 25-year time period as unnecessarily long. As the majority notes, and I acknowledge, these potentially mitigating factors are not statutorily relevant, but they are nevertheless constitutionally relevant.
Assume further that the offender has been determined by a psychologist to have none of the characteristics of a sex offender and to have a low risk of reoffending. There would be many who would be shocked at the severity and length of the punishment, i.e., the reporting requirements. Assume all of the above and add that the offender could have received a sentence of up to 18 months, see R.C. 2929.14(A)(4), that he was sentenced to six months in prison (the shortest term possible), and that a judge released him after he had served a mere 12 days. Now the community’s sense of justice has been violated. Few would deem it appropriate to require a person who committed a crime that warranted a 12-day sentence to comply with reporting requirements every six months for the next 25 years.
The touchstone of federal cruel-and-unusual-punishment analysis is that the punishment must be proportional to the crime. Weems v. United States, 217 U.S. 349, 367 (1910). The case before us fails this standard.
November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)
Tennessee soon to become first state with animal abuser registry
As reported in this local article, headlined "TBI will soon post animal abuse offenders," the Volunteer State is soon to have animal abuse offenders subject to required on-line registration. Here are the details:
Come January 1, Tennessee will post online a list of animals abusers near you. It will be similar to a sex offender registry, and Tennessee will be the first to have a statewide site.
"Her hind legs were put into a pot of water. Boiling water," said Cindy Marx-Sanders as she held Molly the chihuahua. Molly was rescued from an abusive home. "She is exactly why we need an animal abuser registry," Marx-Sanders said.
Marx-Sanders was one of the lobbyists who helped make an animal abuser registry a reality. By January, the Tennessee Bureau of Investigation will have the statewide website up and running. It will be a registry open to the public with pictures of people convicted of felony animal cruelty.
A person convicted of hurting an animal would have their picture up for two years, but if convicted again, their picture would be up for five years.
State Rep. Darren Jernigan of Nashville was a sponsor. "We want to put it in one spot so someone in Memphis can't drive to Knoxville and get an animal if they're going to abuse it. It's going to be statewide," he said.
Angela Klein, with the Bartlett Animal Shelter, has seen her fair share of animal abuse. "Sometimes it can be pretty heart-breaking," she said Monday. She's glad to now have another resource to help combat abuse. "We can go online now and check to see if people are on that registry, and it will give us one more tool to help place animals into better homes," Klein said....
Marx-Sanders said it's a great start, but there's more that needs to be done. "It does need to be expanded to include state-level misdemeanors, which are just a little bit lower on the cruelty scale than the felony level, but is still neglect and cruelty."
Saturday, November 07, 2015
Split NC Supreme Court upholds state prohibition on sex offenders using social media available to kids
As reported in this local article, yesterday the "N.C. Supreme Court has upheld a state law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join." Here is more about the notable ruling:
In the split opinion issued Friday, the justices reversed an N.C. Court of Appeals ruling that found the 2008 law too broad and vague, and therefore unconstitutional. The challenge was brought by Lester Gerard Parkingham Jr., a registered sex offender in North Carolina, who faced additional charges after Durham police found a Facebook page he created under an assumed name.
The case raises questions about whether such laws prohibit sex offenders from participating in web-based forums, which have become virtual town squares, as they re-enter society. The four justices in the majority ruled that the “incidental burden imposed” upon convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”
Writing for the majority, Justice Robert Edmunds stated, “the General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors. For example, Edmunds wrote, the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.
Edmunds wrote that the law is meant to limit conduct and that it only incidentally affects speech. “The justification of the statute — protecting minors from registered sex offenders — is unrelated to any speech on a regulated site,” he wrote.
Emails and text messages aren’t restricted by the law. “Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.
Justice Robin Hudson dissented, and Justice Cheri Beasley joined her in a minority opinion describing the law as unconstitutionally vague. They contended that the law prohibits sex offenders from “communicating with others through many widely used commercial networking sites.” It also could restrict sex offenders from joining news sites and being able to use retailers such as Amazon....
In North Carolina, where 14,268 people are entered in the N.C. Sex Offender and Public Protection Registry database, civil liberty organizations have paid close attention to Packingham’s case. The 2008 restriction was part of a legislative package that N.C. Attorney General Roy Cooper advocated for years. Packingham argued that prohibiting him from those social media sites is a violation of his rights to “free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.”...
Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued several years ago that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search. The law defines a “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions and allows users to create pages to post information.
The full ruling in North Carolina v. Packingham, No. 366PA13 (N.C. Nov. 7, 2015), is available at this link. The majority opinion in this case explained why the court believed that the North Carolina statute being challlenged was more narrowly tailored than somewhat similar statutes struck down by federal courts in Indiana and Louisiana. But the dissent cites some recent US Supreme Court rulings to make the case that the NC statute is still not sufficiently limited to be compliant with the First Amendment.
Though I am never good at predicting whether and when the Supreme Court will take up an important criminal justice issue, I would not be at all surprised if the Justices show some interest in this case if (when?) the defendant were to seek certiorari.
Friday, November 06, 2015
SCOTUS grants review on federal/international sex offender registration issue
The big news from the US Supreme Court's order list this afternoon is the grant of review on another issue concerning the intersection of religious liberty and Obamacare requirements. But sentencing fans might be interested to see SCOTUS also took up a federal case involving sex offender registration laws: by granted cert on just question 1 in the case of Nichols v. United States, the Justices will consider later this Term "whether 42 U.S.C. $ 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals."
November 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)
Saturday, October 31, 2015
"Is Halloween Really More Dangerous for Kids?: A lack of evidence doesn’t stop cities from rounding up sexual offenders on the holiday."
The title of this post is the headline of this recent Marshall Project piece that seems fitting to spotlight on October 31. Here is an excerpt (with links from the original):
Despite research showing no evidence that children are at greater risk of experiencing sex abuse on Halloween than on any other day, states and localities around the country impose severe restrictions on registered sex offenders during the holiday.
Some, including parts of Virginia, Georgia, Delaware and Texas, require sex offenders on probation or parole report to designated locations. O thers, such as Missouri, Florida and Nevada, direct some offenders to post signs on their doors that say, “No candy or treats at this residence.” Broader restrictions in most states direct people on the registry to keep their lights off to deter trick-or-treaters and stay away from children in costumes in their neighborhood or at the local mall.
Before a 2014 ACLU complaint, the Plaquemines Parish Sheriffs Office in Louisiana required all registered sex offenders post this sign on their front lawn on Halloween.
For more than six years, the Gaston County Sheriff’s Department in North Carolina has ordered sex offenders who are still on parole to report to the courthouse on Halloween, said Capt. Mike Radford, who helps to oversee the program. “We keep them in one big courtroom and call people in and out to do random drug testing and vehicle searches, and we have guest speakers,” he said. “If they don’t show up, we pick them up and arrest them.” Radford said he doesn’t know why the program began but believes it is because Halloween presents “easy accessibility to a minor.”
The laws began to proliferate nationwide in the 1990s, when the fear of a predator who lures young children into his home with candy arose amid other concerns, such as poisoned treats and razor blades in apples. “Going back decades, there is this sense that there are these dangers to children on Halloween,” said Jill Levenson, a clinical social worker and associate professor at Barry University in Florida.
But studies have shown that more than 90 percent of children who are sexually abused know their abuser, who is often a family member or close acquaintance. A Bureau of Justice Statistics report showed that only 7 percent of those who sexually abused juveniles were strangers to their victims.
Levenson co-authored a study that examined the Halloween effect by looking at sex crimes against children between 1997 to 2005. The researchers analyzed more than 67,000 crimes in which the perpetrators were strangers, acquaintances, and neighbors.
In a year-by-year comparison that zeroed in on Halloween, the researchers found no variation in number or types of crimes committed, even as more laws were added. But that’s not the message families hear in the weeks before Oct. 31, when articles with headlines such as “Homes to Watch Out for This Halloween,”which run the addresses of local registered sex offenders, are common.
Thursday, October 29, 2015
States find (unsurprisingly) that civil commitment for sex offenders not a simple solution
This lengthy New York Times article, headlined "States Struggle With What to Do With Sex Offenders After Prison," documents some of the difficulties states have had with sex offender civil commitment programs. Here are excerpts:
Minnesota’s civil commitment program — which detains more people per capita than any other state — is facing an overhaul. Earlier this year, a federal judge found it unconstitutional, calling it “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” The judge, Donovan W. Frank, of Federal District Court in St. Paul, is expected to order changes to the program as soon as this week.
Minnesota is not alone in revisiting its policies. In Missouri, a federal judge last month found that state’s program violated people’s right to due process, potentially imposing “lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.” Of about 250 people held since Missouri began committing people in 1999, state officials say seven have been granted what the state considers release with courtordered restrictions, though some of those men remain in a group-home-like setting behind razor wire at a state facility.
In Texas, which previously had a unique outpatient method for treating sex offenders civilly committed after their prison sentences, the Republican-dominated State Legislature this year revamped the program after a Houston Chronicle investigation found that none of the hundreds committed to the program had ever graduated from it. The investigation also found that nearly half of the men detained for treatment while living in halfway houses and other facilities were actually sent back to prison for breaking the program’s rules.
“My sense was that we had to make changes or a federal court is going to strike down the whole program, and we need this program — some of these people would scare the hell out of you,” said State Senator John Whitmire, a Democrat who helped push through the overhaul, which included opening a former prison in remote Littlefield to house the detainees. “The way it was, it just looked like incarceration with double jeopardy,” Mr. Whitmire said. “This at least holds out a pathway to graduate.”
Civil commitment gained support in the 1990s amid reports of heinous sex crimes by repeat offenders. Today, 20 states, along with the federal government, detain some sex criminals for treatment beyond their prison time. But not all have been as sharply criticized as Minnesota’s program. In Wisconsin, 118 offenders have been fully discharged from commitment since 1994, and about 135 people have been given supervised release, according to Judge Frank. New York had sent home 30 people and moved 64 people out of secure facilities for the civilly committed and into strict supervision and treatment, Judge Frank wrote.
But the picture in Minnesota looks far different. Since the current program was created in the mid-1990s, civil commitments have soared. The abduction, rape and murder in 2003 of Dru Sjodin, a North Dakota college student, by a sex offender who had been released six months earlier enraged residents and set off a wave of efforts by county attorneys to call on judges to hold such offenders after their prison terms. Minnesota now has the highest population of civilly committed offenders per capita — nearly all men — in the nation, Judge Frank found, and the lowest rate of release. And costs have soared — to about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota, the judge said.
Yet even in a state that is often seen as liberal-leaning, changing the policy is politically fraught. Gov. Mark Dayton, a Democrat, faced intense criticism before his last election over whether to release from commitment — with strict conditions — a serial rapist who had admitted attacking at least 60 women. And proposals aimed at paying for regular risk evaluations for committed people, as well as other changes, have stalled in the State Legislature. “It’s really a stalemate now because the House Republicans have made it clear that anybody who supports any kind of step forward is going to be castigated in the 2016 elections,” Mr. Dayton said.
Tuesday, October 20, 2015
"For Offenders Who Can’t Pay, It’s a Pint of Blood or Jail Time"
The title of this post is the headline of this New York Times story of a remarkable local sentencing story out of Alabama. Here is how the article starts:
Judge Marvin Wiggins’s courtroom was packed on a September morning. The docket listed hundreds of offenders who owed fines or fees for a wide variety of crimes — hunting after dark, assault, drug possession and passing bad checks among them.
“Good morning, ladies and gentlemen,” began Judge Wiggins, a circuit judge here in rural Alabama since 1999. “For your consideration, there’s a blood drive outside,” he continued, according to a recording of the hearing. “If you don’t have any money, go out there and give blood and bring in a receipt indicating you gave blood.”
For those who had no money or did not want to give blood, the judge concluded: “The sheriff has enough handcuffs.”
Efforts by courts and local governments to generate revenue by imposing fines for minor offenses, particularly from poor and workingclass people, have attracted widespread attention and condemnation in recent months. But legal and health experts said they could not think of another modern example of a court all but ordering offenders to give blood in lieu of payment, or face jail time. They all agreed that it was improper.
Sunday, October 18, 2015
Sex offenders in San Diego sue over strict Halloween rules
As reported in this Los Angeles Times article, headlined "Halloween rules to protect children violate sex offenders' rights, lawyer says," another season of spooks and sex offender restrictions is bringing another round of suits. Here are the basics:
As a safety precaution, state authorities have imposed Halloween restrictions on sex offender parolees, barring them from putting up decorations or passing out treats. And in San Diego County, they are required to post signs outside their homes discouraging trick-or-treaters from approaching.
A lawyer and activist from Santa Maria, Calif., wants to change that. She filed a lawsuit last week in San Diego federal court on behalf of an unidentified Chula Vista man, accusing the state of violating his rights and those of other registered sex offenders.
"For them, Halloween truly is a night of horrors," said Janice Bellucci, who also is president and founder of California Reform Sex Offender Laws. The organization is "dedicated to protecting the U.S. Constitution by restoring the civil rights of individuals required to register as sex offenders in California," according to court documents.
Bellucci said many parolees don't know how officers are going to interpret the special conditions on Halloween night. She said she's received calls from people with concerns that they might be violating parole if they turn on the porch light for a visiting relative or if they post a pumpkin drawing on the refrigerator created by one of their own children. "They don't know truly what is required of them," Bellucci said....
For more than 20 years, the department has run what it calls Operation Boo, a statewide Halloween night event in which parole officers and other law enforcement conduct compliance checks on known sex offenders. The goal is to make sure that sex offender registrants aren't attracting children to their homes....
According to the lawsuit, requiring parolees to post signs on their front doors encourages speech in violation of their 1st Amendment rights. It also invites harm to themselves, the people they live with and their property by forcing parolees to "advertise" their status as registered sex offenders.
Bellucci contends in the suit that state authorities enforce the Halloween policy in an "arbitrary and unreasonable manner," taking no account of the age of a sex offender's conviction or whether it involved a crime against a child.... Bellucci has filed similar lawsuits against the cities of Simi Valley and Orange over Halloween restrictions on registered sex offenders — "registered citizens," as she prefers to call them — including mandatory sign requirements. She said officials repealed the laws and the suits were dismissed.
Last year, parole agents arrested 62 of the 1,294 sex offender parolees who were contacted during Halloween night compliance sweeps throughout the state. The arrests were on charges of possession of child pornography, narcotics, weapons and other parole violations, state authorities said.
Wednesday, October 14, 2015
Prospect of civil commitment leads UK judges to refuse to extradict child sex offender back to US
A helpful reader alerted me to this notable story about a notable legal ruling from across the pond last week. The piece is headlined "Judges refuse to extradite 'paedophile' unless his human rights are guaranteed," and here are excerpts:
UK judges are refusing to extradite an alleged American paedophile who has been on the run from the FBI since 2007 until they have received an assurance that his human rights will not be breached.
The two judges sitting at the High Court in London made it clear that if no assurance is given they will refuse to hand over Roger Giese, 40, to stand trial in California, where is charged with sexually abusing a boy under the age of 14 from 1998 until 2002. The former choir master has been living in a village in Hampshire under a different name and working for a PR company.
An extradition request from the United States was certified by the Home Office in May 2014, and Giese was arrested on June 4 last year. But Magistrates' Court District Judge Margot Coleman refused the request last April.
She ruled there was "a real risk" that Giese would be subjected to an order for civil commitment - a form of indeterminate confinement in a secure facility - if convicted of a series of sexual offences against the boy. Judge Coleman said such an order would be a "flagrant denial" of the European Convention on Human Rights (ECHR).
The US government appealed against Judge Coleman's decision, but today it was upheld by the High Court, which gave the US authorities a deadline to assure the court that, if Giese was found guilty, "there will be no attempt to make him the subject of a civil commitment order".
Lord Justice Aikens and Mr Justice Holroyde stated in a joint written judgment that Judge Coleman was right to conclude that extradition would be "inconsistent" with Giese's ECHR rights. The judges said that if no assurance was given "in due time", the US government appeal for the right to extradite "must be dismissed".
Giese is wanted in Orange County, California, for allegedly committing "lewd acts" with a child. He is alleged to have befriended the boy in 1998, when he was working as a voice coach for the All-American Boys Chorus. He fled the US eight years ago just as he was about to stand trial.
According to a Mirror newspaper investigation, he set up home with a new partner in the Hampshire countryside. There was no suggestion she knew about his past. Together, the pair built a PR company with clients including travel giants Thomas Cook....
California is one of 20 states in the USA which have a system of civil commitment, the High Court heard. A commitment order can be imposed against "a person of unsound mind" deemed to be dangerous who has been convicted in the criminal courts and served a sentence for certain types of sexual offence.
The High Court judges said the fact that the US government was not prepared to state that no petition for civil commitment would be filed in the case of Giese did give rise to an inference that there was a real risk of that happening.... But the judges added that Giese's extradition was not being sought to make him subject of a civil commitment order but so that he could stand trial "in respect of 19 serious charges of sexual offences" against a young boy. They ruled the US government should be given a further opportunity to offer "a satisfactory assurance" that if found guilty "there will be no attempt to make him the subject of a civil commitment order".
The full 27-page ruling referenced in this article can be accessed at this link.
Friday, October 09, 2015
Highlighting who is now highlighting the inefficacy of sex offender registries
This new local Ohio article, headlined "Sex offender registries draw criticism from some unlikely sources," spotlights that some perhaps unexpected voices are advocating against sex offender registries. Here are excertps (with links from the source):
You might think that all advocates for rape victims would support the practice of forcing sex offenders to publicly register their addresses after their release from prison. But you would be mistaken.
Growing numbers of victim advocates and criminal justice researchers are among those who have concluded that sex offender registries are too costly and provide little or no protection to the public. "The registry gives the appearance that our community is safer, but we really question whether it lives up to that expectation," said Sondra Miller, president of the Cleveland Rape Crisis Center....
It's not surprising that defense attorneys oppose the registries, but therapists and victim's advocates also are among those calling for change.
"The biggest frustration we have with the registry is it feeds into the myths that the general public has about sexual assault," Miller said. "It feeds this stranger-danger mentality when we know it's such a small fraction of the sexual assaults that occur in our community." Miller said the registries give people a "false sense of security" that sex offenders can be easily identified and avoided, when that's not the case.
Tyffani Dent, a clinical director at the Abraxas Counseling Center and a psychologist who works with both victims and offenders, said registries spread law enforcement too thin. Deputies have to check in not only on repeat, violent offenders but also teenagers who sent illicit text messages to their girlfriends, and who pose little threat to their neighbors. "I want for victims to get justice," she said. "Unfortunately, registration the way it is now doesn't do what it's designed to do."
Several large-scale studies have shown that registries don't do much to prevent criminals from committing new crimes.
- A 2008 U.S. Department of Justice study concluded that "Megan's Law showed no demonstrable effect in reducing sexual re-offenses."
- A 2011 study from the University of Chicago found that "registered sex offenders have higher rates of recidivism" than those who did not have to register.
- Another study published in 2011 found that a registration requirement has a deterrent effect on sexual offenders, but the notification aspect of the registries leads to higher rates of offense because of the social and financial costs to the offender.
- A 2004 Canadian study found that "after 15 years, 73 percent of sexual offenders had not been charged with, or convicted of, another sexual offense."
Dent doesn't think the registry system should be abandoned entirely. Instead, she favors registering only the most dangerous offenders. That would free up resources for preventative measures and treatment, such as mental health therapy, which Dent said has been proven to reduce recidivism. In particular, Dent said cognitive behavioral therapies, which address the way people think and behave, have been proven to reduce recidivism among sex offenders....
Miller ... noted that victim's services and treatment programs are both underfunded, and could use some of the more than half a million dollars Cuyahoga County spends maintaining its registry. "It really is a question of where do we put our resources where we're going to have the maximum impact and I'm not sure the sex offender registry is where we're getting the most impact," Miller said.
This companion story to the one quoted above carries the headline "Sex offender says registry amounts to punishment for life." Here is how it starts:
Nearly three decades ago, Emil Basista was convicted of raping a 33-year-old woman. While serving time in prison, he was retroactively labeled as a sexual predator, a designation that requires him to report where he lives every 90 days to the sheriff's department. Basista, 66, is one of several thousand Ohioans who have tried to challenge the state's sexual offender registration requirements, contending that the publicly accessible registries amount to life-long punishment.
October 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)
Wednesday, October 07, 2015
Astute review of (too-often neglected and really critical) back-end criminal justice developments
The October issue of Governing magazine has this lengthy new article that effectively spotlights aspects of criminal justice punishment systems that have too often been ignored or overlooked. The article merits a read in full, and its extended headline highlights why everyone should be interested in the stories within: "The Changing Relationship Between Ex-Criminals and Their Parole Officers: Rather than acting as former offenders' enemies, parole and probation officers are now working to be their mentors. Can it reduce recidivism?". Here are excerpts:
Oftentimes, parole and probation officers are the only positive role models offenders have. About a decade ago, criminologists began asking if parole and probation visits were a missed opportunity for law enforcement. What if officers developed a more supportive relationship with offenders? What if they demonstrated to clients that they weren’t just checking boxes and delivering sanctions? The working theory was that given some personal attention, offenders might be more receptive to advice about resolving conflicts and avoiding crime.
Amid a flurry of academic journal articles and pilot projects, researchers from the University of Cincinnati developed EPICS, short for Effective Practices in Community Supervision, a new model for structured face-to-face meetings between officers and their clients. While universities in Australia and Canada produced similar approaches based on the same underlying theory, EPICS has become the go-to model for parole and probation in much of the United States. Since 2006, more than 80 state and county criminal justice departments have adopted EPICS....
By focusing on behavioral change, rather than just threats of being thrown back in jail, EPICS and similar efforts may help break the cycle of incarceration. “I don’t think the majority of people on supervision like being criminals,” says Scott Taylor, who runs the department of parole and probation in Multnomah County. “They just can’t figure how to get out of it.”
Law enforcement agencies in this country have been engaged in community supervision for more than 150 years, basing their practice on the idea that some convicted criminals can reintegrate into society, so long as they meet with assigned officers on a regular basis. Community supervision takes two primary forms: probation and parole. Generally speaking, probation is an alternative to incarceration, and parole is early release from prison. People on probation tend to be convicted of less serious offenses than people on parole....
EPICS is part of a larger change that is developing within the nation’s parole and probation systems. Parole boards are under scrutiny for keeping people in prison without explaining why they don’t qualify for supervised release in the community. Many states have changed sentencing requirements so that nonviolent offenders are increasingly the responsibility of local jails and community supervision agencies, not state prisons. Parole and probation officers are using risk assessment tools to concentrate services on the people who are most likely to reoffend.
Since 2000, anywhere from 4.5 million to 5 million adults have been under community supervision in a given year, but as prisons come under increasing pressure to lower their inmate populations, the number of offenders on parole and probation is certain to grow. In the past, parole and probation agencies have generally ignored research that suggests ways to reduce recidivism; the field has been stuck in a mode of monitoring and enforced compliance. As more offenders are released to community supervision, however, agencies are showing an interest in ideas designed to cut down on criminal behavior. EPICS is one of those ideas.
October 7, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
Wednesday, September 30, 2015
"The Costs and Benefits of Subjecting Juveniles to Sex-Offender Registration and Notification"
Every state and territory in the United States has registration and notification laws that apply to adults convicted of, and juveniles adjudicated delinquent for, certain sex offenses. Most jurisdictions enacted these laws on their own, but expanded them in response to the Adam Walsh Act of 2006 (AWA).
Registration laws require offenders to appear in person to provide identifying information (e.g., fingerprints, DNA samples) and, at least once a year, to provide an updated current photograph. States vary with respect to the kinds of additional information they require, but the list is extensive. An in-person update also is required for any covered change in life circumstances. These include changes in residential, school, work or email addresses, screen names and even blog avatars.
The time allowed to complete each update is short. Failure to register or update an existing registration is itself a felony. Offenders may be covered by multiple states, each with its own rules and procedures. Notification laws make some of this information publicly available via the Internet.
Registration is calculated to produce about $200 million in social benefits per year. Social costs are calculated to range from $200 million to $2 billion, depending on the proportion of registrants listed due to offenses committed as juveniles. Thus, net benefits are calculated to range from -$40 million to -$1 billion per year, with present-value net benefits that range from -$2 billion to -$20 billion. This result depends on a small number of parameters. First, based on the best available study in the literature, which applies to all sex offenders and not just juveniles, registration is assumed to have reduced sex-offense recidivism by about one-eighth. This translates into an annual reduction of about 800 major sex offenses committed by juveniles.
Notification is estimated to produce no social benefits, with social costs per-year that range from $10 billion to $40 billion and present-value costs that range from -$100 billion to -$600 billion. About three-fourths of these costs are borne by sex offenders’ neighbors. This occurs because living near a registered sex offender – whether an adult or juvenile – has a substantial “disamenity” value. Costs imposed on juvenile offenders are calculated to range from $400 million to $2 billion per year. Costs on their families are calculated to add another 50 percent to these amounts. Additional costs on third parties are calculated as: $3 billion per year on employers for registry searches; $100-$500 million on employers for adaption and mitigation of employment issues; and $200 million to $1 billion on the public for registry searches.
Because notification cannot produce net benefits, the qualitative prospective benefit-cost analysis focuses on ways to reduce the social costs of notification. A number of reform alternatives warrant consideration to reduce the substantial net social costs of notification. These alternatives involve exempting certain fractions of registrants listed due to offenses committed as juveniles. High-quality risk assessment is necessary to minimize false positives.