Tuesday, September 01, 2015
"Charging on the Margin"
The title of this post is the title of this notable new paper discussing prosecutorial practices and collteral consequences autored by Paul Crane now available via SSRN. Here is the abstract:
The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions.
Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.
This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.
September 1, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)
Saturday, August 29, 2015
"Is It Ethical to Chemically Castrate a Child Sex Offender?"
The question in the title of this post is the headline of this RYOT piece discussing an alternative sentencing debate afoot in Australia. Here is how the piece gets started (with links from the original):
When it comes to its convicted child sex offenders, Australia is considering nipping the problem in the bud, literally. The country may soon require perpetrators to be chemically castrated instead of sent to prison, VICE News reports.
New South Wales’ justice minister, Troy Grant, would like the treatment to be made mandatory since the rate of recidivism for sex offenders is so high, according to the Australian Broadcasting Corporation. About 17 percent are arrested for a similar crime within two years of being released from prison. Currently, sex criminals can volunteer for treatment, but are not required to undergo it.
Child sexual abuse runs rampant in Australia. Thirty percent of the population reports having fallen victim to it in their lifetime, 10 percent of whom say the abuse was “severe,” a report by the Australian Institute of Criminology found.
Anti-libidinal treatment is nothing new. In fact, courts in Western Australia and Victoria can already mandate libido-reduction treatment to convicts who have been deemed dangerous by prison standards.
In the US, child sex offenders could potentially be sentenced to life in prison; many opt to undergo anti-libidinal treatment instead of extended prison stays, especially since even after sex-offending convicts are released, at least seven states mandate they remain in confinement.
Compared to other offenses, recidivism rates for sex criminals in America are not as high. Only about 5 percent are sent back to prison within three years for a similar crime. Yet states such as Iowa, Florida and California can require sex offenders to be administered libido-eliminating treatment.
Sex offenders may not be a particularly sympathetic group since they pose a serious threat to the most vulnerable members of society, children. Still, many feel chemical castration goes too far.
Both Amnesty International and the American Civil Liberties Union in the US have condemned the practice, calling it inhumane. “At first sight, forced chemical castration could be taken as a matter-of-course decision; however, it is incompatible with human rights, which are the foundation of any civilized democratic society,” read a statement by Amnesty International in March 2012.
In addition to the controversy around forcing people to take drugs they may not want in their bodies, the drugs used for chemical castration don’t come without their fair share of side effects, namely symptoms mimicking menopause in women.
Friday, August 28, 2015
Massachusetts SJC rules local sex offender restrictions preempted by state law
As reported in this Boston Globe article, "Massachusetts cities and towns cannot broadly restrict where sex offenders can live, the state’s highest court ruled Friday, declaring that measures in place in more than 40 municipalities were in conflict with state law." Here is more on the ruling:
The decision came as the Supreme Judicial Court upheld a lower court ruling on a Lynn ordinance that the judges said would have affected 95 percent of the city’s residential properties. The court decried the measure, which it said conflicted with a 1999 state law that set up a system to keep track of sex offenders in communities.
“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst,” the ruling said.
Timothy Phelan, who sponsored the Lynn ordinance when was City Council president in 2011, called the decision discouraging and disappointing. SJC rules against sex offender zone laws in Mass. “It seems like the rights of children are taking a back seat to what is politically correct,” Phelan said.
The ordinance placed strict limits on the ability of Level 2 and 3 sex offenders — those deemed by the state to have moderate and high risks of reoffending — from living within 1,000 feet of a park or school.
John Reinstein, the attorney who argued the case on behalf of three registered sex offenders, said the strong language in the ruling is “a shot across the bow to any attempt to provide the authority for broad-based restrictions to cities and towns.” Reinstein began work on the subject while he was legal director of the American Civil Liberties Union of Massachusetts and continued after his retirement in 2013.
He and his colleagues had urged the court to reject the law on constitutional grounds, arguing that it violated the fundamental rights of sex offenders to move freely within the state and choose where they live.
Friday’s decision instead followed a lower court ruling in deciding that the ordinance violated “home rule” provisions because it is a local measure in conflict with state law. The outcome leaves open the possibility that lawmakers could restore the ability of municipalities to create residency restrictions for sex offenders.
The full unanimous Massachusetts SJC ruling is available at this link.
August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1)
Do tough sex offender restrictions really hurt women and children more than keeping them safe?
The question in the title of this post is prompted by this lengthy new Al-Jazeera America article headlined "Collateral damage: Harsh sex offender laws may put whole families at risk: Research says that registries and residency bans leave children of sex offenders vulnerable to bullying, homelessness." Here are excerpts:
In 1996, Congress passed Megan’s Law, which allowed states to publicize the names of those convicted of sex offenses. A wave of federal and state laws followed that created online sex offender registries, broadened who is listed and restricted where registrants can live.
But today there’s a growing body of research and court opinions questioning those laws’ effectiveness and constitutionality. No studies have looked at what proportion of the country’s nearly 850,000 people on state registries are providing for families of their own. Activists say, however, that thousands of female partners and children are being hurt by laws that aim to protect kids....
Vicki Henry, who runs Women Against the Registry, a group trying to roll back registration and residency laws nationwide, [with] volunteers operate a hotline for family members of registrants seeking help in dealing with the consequences of those laws. They field about 100 calls a month, Henry says.
The only quantitative study to date suggests how serious those consequences may be. In the American Journal of Criminal Justice in January 2009, researchers Jill Levenson and Richard Tewksbury reported on their survey of nearly 600 immediate family members of registrants. More than 20 percent said they had to move out of a rental because their landlord found their relative’s name on the registry, and 40 percent said they found it hard to find an affordable place to live.
Respondents said that their kids didn’t fare well either. Two-thirds reported that their children felt left out of activities because of their parent’s status, more than three-quarters said their children were depressed, and almost half reported that their children were harassed....
Two new qualitative studies provide more backing for the 2009 study findings. From 2010 to 2012, a team of researchers from four universities surveyed almost 450 registrants about the consequences for their families of their being on the list. Their report on the study ran in the October 2014 Justice Policy Journal. Another by two University of Delaware researchers involved surveys last year of 36 family members and interviews with 16 of them; it’s still under review for publication. Both studies asked open-ended questions, so the researchers couldn’t crunch any numbers. But key themes run through the responses — children being shunned and harassed, families struggling to find a place to live, wives losing friends and jobs because a husband is on the list....
Those families may be the collateral damage in a war on sex crimes that’s been underway since passage of Megan’s Law. But it’s far from clear that the chief weapons politicians have employed — registries and residency bans — are helping to protect children or the public.
None of the six studies on sex offender registries conducted between 1995 and 2011 found that registries lowered recidivism, according to a meta-analysis of 20 years of research in the November 2012 Journal of Crime and Justice. “Over the last 15 years, sex offender registries have been established in all empirical forums not to reduce sexual offending behavior, violence, or the number of victims,” Kristen Zgoba, coauthor of that study, wrote in an email.
There’s an even broader consensus on residency restrictions. A U.S. Department of Justice brief released last month concluded that “research has demonstrated that residence restrictions do not decrease and are not a deterrent for sexual recidivism.” And a December 2013 study report in the journal Criminal Justice Policy Review noted that Florida’s residency laws likely play a “significant role” in homelessness and transience among sex offenders.
Sunday, August 16, 2015
"Sex Offenders Locked Up on a Hunch"
The title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:
The essence of the American criminal justice system is reactive, not predictive: You are punished for the crime you committed. You can’t be punished simply because you might commit one someday. You certainly can’t be held indefinitely to prevent that possibility.
And yet that is exactly what is happening to about 5,000 people convicted of sex crimes around the country. This population, which nearly doubled in the last decade, has completed prison sentences but remains held in what is deceptively called civil commitment — the practice of keeping someone locked up in an institution for months, years or even decades for the purpose of preventing possible future offenses.
The authorities have the power to detain people with mental illnesses or disorders who cannot function independently, or who pose a danger to themselves or others. But since the early 1990s, this power has been used increasingly to imprison one distinct group: sex offenders....
In a decision in June, a federal judge ruled that Minnesota’s civil-commitment law for sex offenders violates the Constitution. Federal District Judge Donovan Frank said the law imposes “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” For example, local prosecutors — not clinicians or mental health professionals — choose whether to seek continued detention based on a screening test that claims to predict a person’s likelihood of committing another sex offense, though there is no clear evidence such tests are accurate.
Yet based largely on those screening tests, more than 700 Minnesotans who have completed their prison sentences are locked up, at an annual cost of more than $120,000 per person — triple the cost of prison. This civil commitment rate is by far the highest in the country. Some people have been held for more than 20 years. During that time, not one person has been released from the program unconditionally.
A central flaw, Judge Frank said, is that Minnesota does not perform reassessments of risk, so the burden lies with the detainees to prove they no longer pose a danger. On Aug. 12, Judge Frank ordered the state to come up with constitutionally valid reforms by the end of September, or he “may demand a more forceful solution.”
Despite the public perception that all sex offenders are recidivists — a belief that drove these laws in the first place — sexual reoffense rates are in fact lower than those for other crimes (though an unknown number of sex crimes go unreported). In addition, while some states’ laws make it easier for detainees to earn their way out, 30 states have no civil-commitment laws at all, and there is no evidence that a state’s sexual-violence rate is affected by whether it has such a law....
Public safety would be better served if resources were directed toward community supervision and other services for those leaving prison, rather than toward skirting the edges of the Constitution to keep them locked away.
August 16, 2015 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12)
Friday, August 07, 2015
"Judge orders Texas man to get married or face jail time"
The title of this post is the headline of this local report on a recent local sentencing in Texas that makes for perfect Friday afternoon follies. (First joke alternative headline: "Judge orders Texas man to face either short-term or long-term loss of true freedom.") Here are the (ugly? amusing? semi-sweet? unconstitutional?) details:
An East Texas couple says their choice to marry when they wanted to was taken away by a criminal court judge. In July, a Smith County judge sentenced Josten Bundy to get married to his 19-year-old girlfriend as part of his probation, which also included writing Bible verses and getting counseling.
The court case stemmed from a February altercation between Bundy and the ex-boyfriend of his girlfriend, Elizabeth Jaynes. “[The ex-boyfriend] had been saying disrespectful things about Elizabeth, so I challenged him to a fight,” said Bundy. “He stepped in and I felt like it was on and I hit him in the jaw twice.”
Bundy said the ex-boyfriend did not require medical attention, but pressed assault charges. “I took matters into my own hands and I know that’s wrong,” Bundy said. “I know I was raised better, but it happened.”
At his sentencing hearing, Judge Randall Rogers asked Bundy about the fight. “Is she worth it?” Judge Rogers asked Bundy, according to court transcripts. “I said, well to be honest, sir, I was raised with four sisters and if any man was talking to a woman like that,” recalled Bundy, “I’d probably do the same thing.”
Judge Rogers asked Bundy if he was married to Jaynes and then said, “You know, as a part of my probation, you’re going to have to marry her…within 30 days.” If Bundy declined to do the probation, he would be sentenced to 15 days in jail. “He offered me fifteen days in jail and that would have been fine and I asked if I could call my job [to let them know],” said Bundy. “The judge told me ‘nope, that’s not how this works.’”
Jaynes, who was in the courtroom said the proposal from the judge embarrassed her. “My face was so red, people behind me were laughing,” said Jaynes. “[The judge] made me stand up in court.”
Afraid of Bundy losing his job if he spent two weeks behind bars, the couple applied for their marriage license and scheduled a date with the justice of the peace to get married. “It just felt like we weren't going to be able to have the wedding we wanted,” said Jaynes. “It was just going to be kind of pieced together, I didn't even have a white dress.”
The pair said a summer courthouse wedding was nothing like what they pictured when they imagined their future nuptials while they were dating. “I used to watch Say Yes to the Dress and all those shows and all the dresses and think about what kind of dress I would have,” said Jaynes. “I would have liked a spring wedding when it’s not too hot and not too cold.”...
But with only 18 days to plan, even the people most important to them were missing. "My father didn’t get to go, and that really bothers me, I know he would have liked to be there,” said Bundy. “None of my sisters got to show up, it was such short notice, I couldn’t get it together."
The father of the bride, Kenneth Jaynes, wanted answers. “[I felt] anger; I was mad. [The judge] can’t do this by court ordering somebody to be married,” said Kenneth Jaynes. “I contacted a couple of lawyers but they told me someone was trying to pull my leg…that judges don't court order somebody to get married.”
Judge Rogers declined to interview about an open probation case. He also declined to comment generally about his sentencing practices. Attorney Blake Bailey, who practices constitutional law, said an order to marry is not legal. “To say you're not going to be criminally punished if you get married is way out of left field,” said Bailey. “It sounds like the old days of shotgun weddings, but not even the judge is capable of enforcing, what he thinks is best for some people in his court.”
Bundy and Jaynes say they do not at all regret getting married, but they do regret not being able to plan or have control over their special day. “What if we [had said to the judge] we don't want to get married right now and we're not ready?” said Jaynes. “Is he going to go to jail? It scared us, a little bit.”
Attorney Bailey said the sentence would have likely been struck down on appeal to a higher court.
Thursday, August 06, 2015
Teen placed on sex offender registries after encounter with girl claiming to be 17 to be resentenced
According to this new CNN piece, there seems to be a notable new legal development in a notable case of a teen facing extreme sex offender restrictions after a seemingly not-so-extreme sex offense. The piece is headlined "Judge reconsidering case of teen on sex offender registry," and here are the details:
A 19-year-old Indiana man convicted of a sex offense after a teenaged girl lied about her age on a hookup app may get a new sentence. The judge in the case, Dennis Wiley, did not make a decision Wednesday, but he agreed to consider Zach Anderson's request to be resentenced, meaning that Anderson could potentially be taken off the sex offender registry.
Anderson met the girl on the dating app "Hot Or Not." The 14-year-old girl lied about her age, claiming she was 17, which made having sex with her a crime. She lived in southern Michigan, close to Anderson's parents' home in Elkhart, Indiana. Anderson was given a 90-day jail sentence, five years probation and placed on both Indiana's and Michigan's sex offender registry for the next 25 years -- the same registry as child rapists, pedophiles and predators.
Anderson and his lawyer, Scott Grabel, had asked a court in Niles, Michigan, to vacate Anderson's sentence, alleging that prosecutors broke the plea agreement, the defense attorney said. Grabel, who accuses the prosecution of not staying neutral during the sentencing of Anderson as required under the agreement, described the judge's decision Wednesday as a "significant step." Wiley is expected to make a further ruling in about a week.
"In the long run, I'm confident we're gonna get this thing fixed," the attorney told CNN. Both the girl's mother and the girl herself had earlier appeared in court, to say they didn't believe Anderson belonged on the sex offender registry....
"Our goal is to get this case resentenced in front of a different judge, because the law mandates if the prosecutor violates their plea agreement, then it should be sent to a different judge for possible resentencing, or if we want to withdraw the plea and go to retrial that may be an option, as well," Grabel told CNN before the court action Wednesday.
Anderson's attorney is also striving to get the entire case dismissed. "I don't certainly speak for the public in general, but the comments I've read nationally think that his whole life shouldn't be ruined by his decision to go on a date and obviously have sexual relations with that person, especially when that person in all honesty misrepresented their true age," Grabel said.
As a registered sex offender, Anderson can't access the Internet, go to a mall or linger near a school or playground. His parents say because he has a 15-year-old brother, he can't even live at home any longer....
Anderson's case has stirred much debate about the one-size-fits-all sex offender laws that treat all offenders the same whether they are serial child predators or teens who've had sex with a girlfriend. His family has started a Facebook page, called "Justice 4 Zach," and has been very vocal about what they call the injustice of the sex offender registry. "He's obviously not a sex offender," Anderson's father told CNN, "I mean when there's a consensual act, to have one person labeled as the offender and the other person as a victim ... It's hard to swallow."
A former judge in a nearby town said the sex offender registry has to be changed. "If we caught every teenager that violated our current law," said former Judge William Buhl, "we'd lock up 30 or 40% of the high school. We're kidding ourselves."
According to The National Center for Missing & Exploited Children, there are 850,000 people on the sex offender list and about a quarter of them were juveniles when they were sentenced, but the records are not broken down by the severity of the crimes they committed.
Some recent related posts:
- "For Juvenile Sex Offenders, State Registries Create Lifetime Of Problems"
- Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions
- New York Times reviews juve problems with modern sex-offender laws
Monday, August 03, 2015
Two distinct notable tales of crimes and punishment via the Grey Lady
The New York Times starts the work week off with these two intriguing lengthy pieces about two different stories of crimes and punishment:
Tuesday, July 07, 2015
"Sex Offender Registries And Calls For Reform"
The title of this post is the title of this recent extended segment on NPR's Diane Rehm Show. Here is how the program is previewed and the guests on the program:
Sex offender registries are designed to protect the public from pedophiles and others who have committed sexual crimes. But some say those guilty of much lesser offenses don’t belong on the list. We look at sex offender registries and calls for reform.
Abbe Smith, professor of law and co-director of the Criminal Justice Clinic and E. Barrett Prettyman Fellowship program at Georgetown University; author of "Case of a Lifetime."
Jill Levenson, associate professor, social work, Barry University and clinical social worker
Brenda V. Jones, executive director, Reform Sex Offender Laws, Inc.
Victor Vieth, founder and senior director, Gundersen National Child Protection Training Center
Monday, July 06, 2015
ACLU argues Indiana's new religious freedom law protects sex offenders seeking church access
As reported in this interesting local article, headlined "ACLU: RFRA must let sex offenders worship at churches with schools," a new lawsuit in Indiana is creating a new stir surrounding the state's controversial new state religious liberty law. Here are the details:
The American Civil Liberties Union of Indiana filed Wednesday what appears to be the first lawsuit that invokes the state's new new Religious Freedom Restoration Act. Their clients? Registered sex offenders who believe their religious freedom is being denied by another new law that bans them from attending any church located on the same property as a school.
"This is a prime example as a place where people's religious rights are being burdened, and therefore under RFRA the state has to justify that," said ACLU of Indiana legal director Ken Falk. "It makes no sense to ban people on a Sunday if there are kids there on a Thursday." For example, that would be the case with church preschools or parochial schools with adjacent churches....
The lawsuit was filed in Elkhart Superior Court, on behalf of two unnamed sex offenders, against the prosecutors and sheriffs of Allen and Elkhart counties. When reached by The Indianapolis Star, the sheriff's departments declined to comment.
Indiana's new religious freedom law, which went into effect Wednesday, says if the government imposes an undue burden on the religious rights of individuals, businesses or religious organizations, it must prove a compelling interest and that it is using the least restrictive means possible.
"I think this is exactly the kind of case RFRA was about," said Indiana University law professor David Orentlicher. "You've got this sex offender law that's designed to protect children. It wasn't passed with the intent to interfere with religious practice, but it turns out there are a fair number of schools on church grounds. These people now can't go to pray without running afoul of the law."
Some in Indiana — including the ACLU — opposed the state RFRA, arguing that the law would allow discrimination against lesbians, gays, bisexuals and transgender individuals. That led to a "fix" to the law to clarify that an RFRA defense could not be used to trump local and state civil rights laws.
But with the heated debate over how RFRA would apply in wedding services for same-sex couples, "what got lost was there are a lot of good reasons for these statutes," Orentlicher said. "That's what this case should remind us — that RFRAs can be misused, but we don't want to throw the baby out with the bathwater," he added.
Falk of the ACLU said the lawsuit uses RFRA "as it was originally contemplated" to protect religious freedoms. "We're not going to pretend it doesn't exist now," Falk said. "It does exist. The legislature said it wants to protect religious liberties, and that's exactly what we're trying to do."
Still, state Senate President Pro Tempore David Long, a Fort Wayne Republican, criticized the ACLU for the lawsuit. "The ACLU used to be a staunch supporter of religious liberty," he said in a statement. "Now they've reduced themselves to making a mockery of it. On top of this, they also support endangering our children while championing the rights of sex offenders. It's a sad day for the ACLU."
State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds and reacted to the ACLU lawsuit by slamming the religious freedom law: "Clearly nobody had thought through what all the negative ramifications might be for people."
"I think that we have to keep in mind that Indiana is one of the very worst states in the nation when it comes to protecting our children from sexual violence," she added, citing national health statistics and recidivism rates. "We're second only to Wyoming. And we have to do whatever it takes to protect our kids. ... Any time we can keep a sexual predator away from a child, that's a small victory."
But Orentlicher made the point that the case may not be so simple. For sex offenders who have served their time, religion may be instrumental to their rehabilitation, he said: "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."...
In addition, the ACLU argues for sex offenders to have access to the worship services when schools aren't in session. And the lawsuit says it's "not rational" that serious sex offenders can still go to church services where children are present if there's no school attached. Orentlicher said other states, such as Missouri, have carved out religious exemptions to allow sex offenders to attend church when school is not in session. "They're just saying, 'Let us pray when the kids aren't there,' " Orentlicher said.
Sunday, July 05, 2015
New York Times reviews juve problems with modern sex-offender laws
The front-page of today's New York Times has this lengthy article, headlined "Teenager’s Jailing Brings a Call to Fix Sex Offender Registries." Here are excerpts:
Until one day in December, Zachery Anderson was a typical 19-year-old in a small Midwestern city.... And he dated in the way that so many American teenagers do today: digitally and semianonymously, through apps where prospects emerge with the swipe of a finger and meetings are arranged after the exchanges of photos and texts.
In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line. They had sex in a playground in Niles City, the police report said.
That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14.... He was [later] arrested and charged and, after pleading guilty to fourth-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.
As an Indiana resident, Mr. Anderson will most likely be listed on a sex offender registry for life, a sanction that requires him to be in regular contact with the authorities, to allow searches of his home every 90 days and to live far from schools, parks and other public places. His probation will also require him to stay off the Internet, though he needs it to study computer science.
Some advocates and legal authorities are holding up Mr. Anderson’s case as the latest example of the overreach of sex offender registries, which gained favor in the 1990s as a tool for monitoring pedophiles and other people who committed sexual crimes. In the decades since, the registries have grown in number and scope; the nearly 800,000 people on registries in the United States go beyond adults who have sexually assaulted other adults or minors. Also listed are people found guilty of lesser offenses that run the gamut from urinating publicly to swapping lewd texts.
As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries. “The whole registry is a horrible mistake,” said William Buhl, a former judge in Michigan who has publicly argued that laws governing registries ought to be relaxed. “I think it’s utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile.”...
There are fledgling efforts in some states to change sex offender registries so that they do not include juveniles or those guilty of minor offenses. In California, the corrections department announced in March that the state would ease residency requirements for many sex offenders, allowing certain lowrisk individuals to live in areas closer to schools and parks that were previously off limits. Many sex offenders have ended up broke and homeless, living in clusters under freeways because they are routinely rejected by employers and landlords, and because they are banned from living in so many neighborhoods that contain public places like parks.
Brenda V. Jones, the executive director of Reform Sex Offender Laws, an advocacy group, said cases like Mr. Anderson’s are common in many states. Frequently, a judge will give the lightest possible sentence, but cannot change the restrictions involving the offender registry. “It’s like a conviction on steroids,” Ms. Jones said. “Being on a registry becomes a liability for employers, no matter how minor the offense was. Other people will say: ‘I saw your employee on the Internet. He’s a sex offender, and I will not come to your establishment.’ ”
Changing the laws has been a slow fight. “People talk about it, but when you actually try to introduce legislation, lawmakers start to get really nervous,” Ms. Jones said. “Because, oh, my God, we’re going to be soft on sex offenders.”
Prior related post:
- Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions
Monday, June 29, 2015
"Prison Abolition and Grounded Justice"
The title of this post is the title of this newly published article by Allegra McLeod. Here is the abstract:
This Article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste. Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address — interpersonal violence, addiction, mental illness, and sexual abuse, among others. Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law — principally deterrence, incapacitation, rehabilitation, and retributive justice — might be pursued by means entirely apart from criminal law enforcement. Abandoning prison-backed punishment and punitive policing remains generally unfathomable.
This Article argues that the general reluctance to engage seriously an abolitionist framework represents a failure of moral, legal, and political imagination. If abolition is understood to entail simply the immediate tearing down of all prison walls, then it is easy to dismiss abolition as unthinkable. But if abolition consists instead of an aspirational ethic and a framework of gradual decarceration, which entails a positive substitution of other regulatory forms for criminal regulation, then the inattention to abolition in criminal law scholarship and reformist discourse comes into focus as a more troubling absence. Although violent crime prevention and proportional punishment of wrongdoing purportedly justify imprisonment, this Article illuminates how the ends of criminal law might be accomplished in large measure through institutions aside from criminal law administration.
More specifically, this Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare. This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and “greening” urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement. By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.
Sunday, June 21, 2015
Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"
The US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.) Here is how the USSC itself briefly describes its new (data-heavy) document:
As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.
This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging. In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:
Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...
During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....
In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....
Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range.... Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.
Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....
[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.
In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.
June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
Friday, June 12, 2015
"'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics"
The title of this post is the title of this notable new paper authored by Ira Mark Ellman and Tara Ellman recently posted on SSRN. Here is the abstract:
This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case.
The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.
June 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
Tuesday, June 09, 2015
Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions
This lengthy local story, headlined "'Old-fashioned scarlet letter': Elkhart 19-year-old fights sex offender status after encounter with Michigan teen," reviews a notable case highlighting problems with overly broad sex offender registry laws. The piece is subheadlined "During his five years of probation, he can’t have a smart phone or any other device that connects to the Internet, and he can’t live anywhere with Internet access," and here are excerpts:
As Zach Anderson sits in the Berrien County Jail in St. Joseph, Mich., his parents worry. And plead. And fight.
The young man from Elkhart, 19, pleaded guilty in Berrien County, Mich., Trial Court in March to a misdemeanor count of criminal sexual conduct for having sex — consensual sex — on Dec. 19, 2014, with a Niles, Mich., teen. She said she was 17, and met him in person after a whirlwind courtship in cyberspace that started with a meeting via the social app Hot or Not.
It turns out she was only 14, though, two years under the age of consent in Michigan. And now, Anderson finds himself sitting out a 90-day jail sentence, with another five years probation and, of particular concern to his parents, 25 years on Michigan’s sex offender registry. Worse yet, Les and Amanda Anderson, who run a small Elkhart media and printing company, fear their son could face a lifetime on Indiana’s sex offender registry on returning to the Elkhart area after his jail sentence is up.
“Here’s the thing: This mistake should not haunt him the rest of his life,” Les Anderson says from the family home in east Elkhart. That’s where his son — a 2014 Concord High School grad and Ivy Tech Community College student until his jailing — lived before Judge Dennis Wiley handed down the sentence on April 27.
In light of Zach Anderson’s age and clean criminal record, Wiley could have offered him leniency under Michigan’s Holmes Youthful Training Act, as his lawyer sought in sentencing. The Niles girl and her mom — whom the Elkhart Truth won’t name because the teen is a victim — even asked for leniency, asked that the case be dropped altogether.
“What do I say? I feel that nothing should happen to Zach,” the girl said at the first of his two sentencing hearings April 13, accompanied by her mother. “I, I mean I, I don’t know. I just ... if you feel like something should, I feel like the lowest thing possible.”
Her mom followed her daughter at the hearing. “I don’t want him to be a sex offender because he really is not and I know that there’s an age difference and I realize that (name deleted) was inappropriate that night, we didn’t know,” the mother said. She continued: “I’m very sorry and I hope you’ll really consider the fact of just dropping the case. I can’t say anything more than that. I hope you really will for all of our families.”
Wiley didn’t drop the case and ultimately denied Zach Anderson HYTA status, told him he’s “darn lucky” he got the deal he did. HYTA, geared to first-time offenders ages 17 to 21, allows eligible participants to expunge criminal convictions on complying with sentencing conditions, thus avoiding the stigma of a criminal record as they enter their adult years.
The criminal sexual conduct conviction and having to put his name on the list of sex offenders could have dramatic and far-reaching implications for Anderson, his dad says. Lost job and educational opportunities. Social stigmatization. Discrimination. Accordingly, the Andersons will fight the sentencing in court. They plan to argue for HYTA status based on what they and their backers believe to be discrepancies in the sentencing process.
“That is our goal: to get him off the list and be able to function as a normal person in society, be able to live his life like any other person. Because at the end of the day, this is the old-fashioned scarlet letter,” Les Anderson says. He went on: “My son, he’s not a danger to anybody. He’s not dangerous to society. … He’s not going to hurt a little girl. That’s not going to happen.” Even under HYTA guidelines, Zach Anderson would face punishment and repercussions. “It’s not a cake walk. There’s still classes and counseling and restrictions that go along with that. ... That is just much more reasonable than the extreme that he got,” says Amanda Anderson....
Per Hot or Not rules, those ages 13 to 17 are kept separate from users 18 and older. However, in creating a Hot or Not account, the 14-year-old Niles girl identified herself as 18 or over, John Gardiner, Zach Anderson’s first attorney, said in sentencing. After connecting on Hot or Not, the two texted back and forth and, along the way, the girl told Zach Anderson she was 17. He asked her for pictures “of intimate body parts,” Jerry Vigansky, an assistant Berrien County prosecutor, said at sentencing.
Two days after the initial contact, on Dec. 19, they met, according to the girl’s account to the Berrien County Sheriff’s Department responding officer, or R/O, who interviewed her. Authorities got involved, ultimately resulting in the criminal charges, after the girl’s mother called for help the evening of Dec. 19, wondering where her daughter was as she met with Zach Anderson. She worried the girl would miss a dose of medicine....
Call their social app-enabled rendezvous a cautionary tale of the times, one of the consequences of the high-tech, always-connected, Internet-everywhere age we live in. That’s how Wiley, the judge, seemed to view it, as did Vigansky, the prosecuting attorney, and even Gardiner, Zach Anderson’s original lawyer....
Vigansky said there had been “a little rash” of encounters in Berrien County of late like the one between Zach Anderson and the 14-year-old girl. There had been two of them, anyway. He took a dim view, sarcastically alluding to “this great website called Hot or Not.”
“You went online, to use a fisherman’s expression, trolling for women, to meet and have sex with,” scolded Wiley. “That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this.”...
Per Wiley’s sentence, Zach Anderson faces a long list of restrictions during the five years of probation. He can’t have a computer, except for schooling. Can’t have a smart phone or any other device that connects to the Internet. Can’t live anywhere with Internet access. Can’t have an account with Facebook or any other online social network.
He can’t have contact with anyone 17 or younger, his siblings excepted. Can’t live within 1,000 feet of a school. He faces a daily 8 p.m. to 6 a.m. home curfew. He’s to continue his studies, in consultation with his field agent, but can’t take any computer or computer science classes, which had been the planned focus of his Ivy Tech education. “This is what got him in trouble in the first place,” the judge said in sentencing.
To Les Anderson, the restrictions are extreme, the requirement to get on the sexual offender registry unnecessary. “Instead of trying to rehabilitate people, they set them up to fail because there are so many restrictions on them,” he said. That’s why he, his wife and the rest of the family are fighting. They’ve hired Grabel to investigate the legal recourses potentially at Zach Anderson’s disposal, especially to ease the registry requirement. They’ve created a Facebook page, “Justice 4 Zach Anderson, Elkhart.” They seek donations to help offset legal and other costs, $30,900 and counting. They’re selling yellow “Justice 4 Zach” T-shirts.
“Anybody that’s got common sense looks at this and they’re just blown away,” says Les Anderson. “It comes back to the punishment does not fit the crime. Regardless of how you feel about this, the punishment is way too harsh.”
June 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)
Tuesday, June 02, 2015
Has anyone systematically studied whether "creative" sentences are more effective than others?
The question in the title of this post is prompted by this new Huffington Post piece headlined "Judge Michael Cicconetti's Unorthodox Sentences Include Walking 30 Miles, Getting 'Pepper Sprayed'." Here are excerpts:
An Ohio judge known for his unusual sentencing methods ordered a woman to walk 30 miles -- the same distance a taxi took her before she skipped out on the fare. On Thursday, Judge Michael Cicconetti gave Fairport Harbor resident Victoria Bascom the choice to either spend 60 days in the local slammer, or walk 30 miles in the next 48 hours. She chose to walk, according to WOIO.
It was the 18-year-old's punishment for refusing to pay the $100 cab fare from Cleveland to Painesville, according to the News-Herald. She'll also have to pay the cabbie $100 and will be on probation for four months over the misdemeanor theft count.
The same day, Cicconetti gave 19-year-old Diamond Gaston a similarly unusual option after Gaston assaulted a man with pepper spray. Gaston could see jail time, or could allow the victim to spray him with pepper spray to see how it felt. Gaston chose pepper spray, not knowing that he'd really be sprayed with a saline solution. The plan was to teach him a lesson.
Cicconetti has been known to hand down eye-for-an-eye sentences to misdemeanor offenders for years. He's been a polarizing figure over the practice, but he told The Huffington Post on Monday that it works. "I would put my recidivism rate up against anybody's," the judge told HuffPost Crime. "You can send someone to jail and make it the sheriff's problem; they get out and nobody follows up. With these sentences, they're on probation, and in most cases, I'll end up taking it off their record."
He said traditional sentencing, especially for first-time offenders, doesn't do much to show defendants the impact of their actions. Instead, he once ordered a suspect caught speeding in a school zone to be a crossing guard for a shift. He made a man who called cops "pigs" stand on a street corner with a real pig and a sign that states, "This is not a police officer." He says he even ordered a man who sped past a school bus' flashing red lights to ride a school bus for a day.
Critics reportedly say Cicconetti is just trying to grab headlines. The judge told HuffPost he'd be happy if that were the case, and would like to see more courts adopt this type of sentencing for first-timers. "These people aren't coming back [into the court system]," he said. "It really works. I started with baby steps, but as I got braver or dumber or crazier, I started handing these sentences down more."
You can't sentence everyone like Bascom or Gaston, he said. He says only "1 percent" of his cases get that type of treatment, and he has criteria for his style of justice: Suspects need to be first-time offenders, generally young and impressionable, and "remorseful for what they did."
Friday, May 29, 2015
"For Juvenile Sex Offenders, State Registries Create Lifetime Of Problems"
The title of this post is the headline of this NPR piece. Here are excerpts:
Forrest Hampton is about to become a family man and he couldn't be happier. He's 25 and he lives in a suburb of Dallas with his fiancée, who's due to have their baby practically any minute. They've already picked out a name: Raven.
In most ways they are a normal family. Except for one thing. Until last year, Hampton was a registered sex offender. "I honestly don't believe I was supposed to be registered in the first place," he says, "but I wasn't in the position to fight my case." That's because Hampton was found guilty at age 13 of having sexual contact with a 9-year-old girl. He says he was a troubled kid, but not a pedophile.
Texas is one of about 40 states that will put children on sex offender registries; half make those registries public. Hampton went through an adolescent sex offender therapy program, and, by the time he was 18, was ready to start fresh. But he says being registered made that impossible....
Hampton's situation is fairly common. That's why, in the last few years, courts and legislatures in states such as Pennsylvania, Michigan and Wyoming, have started to question the practice of registering juveniles.
Bruce Burkland is the director of Teton Youth and Family Services near Jackson Hole, Wyo. Counselors work with kids who were victims of sex crimes as well as juvenile sex offenders. Burkland says a lot of those offenders are technically in their mid-teens, but "developmentally and emotionally their age is much more around eight or nine."
Juvenile sex offenders also re-offend at a much lower rate than adult offenders, according to the Justice Department. Burkland says his therapy is designed to help them build healthy relationships with their peers. But he's not advocating for the registries to go away: some minors are a real threat. "The juvenile who is looking for multiple opportunities and just prefers and likes to have contact with younger children would be a high risk to re-offend, and should be on the registry," he says.
Instead Burkland says prosecutors and judges should have more discretion to figure out who needs to be registered and who doesn't. One of the few people working to change this practice is Nicole Pittman, a director at the advocacy group Impact Justice. "We are criminalizing normative child sexual behavior in large fashion," she says.
Pittman adds that the practice of registering juveniles developed in the '90s, when a series of federal and state laws establishing registries ran head-on into the child super predator scare. In 2006, a federal law started to hold back funding to states that didn't register kids for certain sex crimes. Pittman says the result is that kids are labelled as sex offenders for acting like kids.
Thursday, May 28, 2015
US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
Regular readers are likely to recall the remarkable series of opinions issued by US District Judge John Gleeson in recent years in which the judge has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. Now I have learned, thanks to this great new Margy Love post at the Collateral Consequences Resource Center, that Judge Gleeson's latest opinion examines the collateral workplace consequences of an old federal fraud conviction in the course of ordering expungement. Here is how the must-read opinion in Doe v. US, No. 14-MC-1412 (EDNY May 21, 2015) (available here), starts and ends:
Jane Doe filed an application on October 30, 2014, asking me to expunge her thirteen-year old fraud conviction because of the undue hardship it has created for her in getting — and especially keeping — jobs. Doe gets hired to fill home health aide and similar positions only to be fired when her employers learn through subsequent background checks about her conviction. Since the conviction was for health care fraud, it’s hard to blame those employers for using the conviction as a proxy for Doe’s unsuitability.
However, even if one believes, as I do, that employers are generally entitled to know about the past convictions of job applicants, and that their decisions based on those convictions are entitled to deference, there will nevertheless be cases in which all reasonable employers would conclude that the conviction is no longer a meaningful consideration in determining suitability for employment if only they had the time and the resources to conduct a thorough investigation of the applicant or employee.
I have conducted such an investigation, and this is one of those cases. In addition to presiding over the trial in Doe’s case and her subsequent sentencing, I have reviewed every page of the extensive file that was created during her five years under probation supervision. I conclude that the public’s interest in Doe being an employed, contributing member of society so far outweighs its interest in her conviction being a matter of public record that the motion is granted and her conviction is expunged....
Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully.
The seemingly automatic refusals by judges to expunge convictions when the inability to find employment is the “only” ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion. The so-called “ban the box” practice, in which job applications no longer ask the applicant whether he or she has been convicted of a crime, is becoming more prevalent. There is an increasing awareness that continuing to marginalize people like Doe does much more harm than good to our communities.
Accordingly, Doe’s application for an order expunging her conviction is granted. It is hereby ordered that the government’s arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility, and that any electronic copies of these records or documents and references to them be deleted from the government’s databases, electronic filing systems, and public record. Doe’s real name is to be removed from any official index or public record. It is further ordered that the records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation. The government and any of its agents may not use these records for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose.
Finally with respect to the relief granted here, I welcome the input of the parties. My intention is clear: no inquiry of the federal or state government by a prospective employer should result in the disclosure of Doe’s conviction. Effectuating that intent without unduly burdening those governments or impairing their legitimate law enforcement interests is not so clear, at least not to me. Thus I welcome any proposed modifications to the relief set forth above, and of course any such proposals by the government would not be regarded as a waiver of its opposition to my decision to expunge the conviction.
It will be interesting to see how the Justice Department responds to this decision, and also how the Second Circuit will consider this matter if (when?) the feds appeal.
Thursday, May 21, 2015
"How America Overdosed on Drug Courts"
The title of this post is the headline of this lengthy and critical analysis of the modern drug courts movement appearing in the Pacific Standard magazine. The subheadling highlights its main themes: "Hailed as the most compassionate way for the criminal justice system to deal with addicts, drug courts were designed to balance punishment with rehabilitation. But after 25 years, the verdict is in: Drug courts embolden judges to practice medicine without a license—and they put lives in danger." I consider this piece a must-read for all those interested in drug sentencing reform, and here are excerpts:
The first drug court opened in Florida’s Miami-Dade County in 1989, near the height of the hysteria in this country over drugs, particularly crack cocaine. Both conservatives and liberals found something to love: Conservatives liked the potential for reduced prison spending, and liberals liked the emphasis on therapy. From the start, however, critics voiced concerns about “cherry picking,” because the courts only allowed into the program defendants who seemed likely to succeed whether or not they received help. This sort of selectivity was built into the system: The federal laws that determine eligibility for grants to create new drug courts (ongoing funding is primarily state and local) require that the courts exclude people with a history of violent crime. Many drug courts also bar people with long non-violent criminal histories. Predictably, this eliminates many of those who have the most serious addictions — the very people the courts, at least in spirit, are supposed to help.
Proponents of drug courts celebrate the fact that those who participate do better than similar defendants who are simply incarcerated or given standard probation. This is unquestionably true. “The average effect is to reduce new crimes by 10 to 15 percent,” says Douglas Marlowe, the chief of science, policy, and law for the National Association of Drug Court Professionals. (Those crimes include not only drug sales and possession but also crimes committed to pay for drugs, such as burglary and robbery.) “The vast majority of evaluations show that they work,” says Ojmarrh Mitchell, an associate professor of criminology at the University of South Florida, “and the effect size is larger than any other large-scale criminal justice intervention.”
These improvements are seen mainly in people who graduate, however, which is only roughly half of those who participate — a fact that the NADCP and other advocates tend to play down. Worse, defendants who start but do not complete drug court often serve longer sentences, meted out by judges as punishment, than they would have had they simply taken a plea and not tried to solve their drug problem. That strikes many critics as a manifest injustice. “This is intensifying the drug war on half of the people,” says Kerwin Kaye, an assistant professor of sociology at Wesleyan University. “It’s not stopping the drug war, it’s continuing it by other means.” Not only that, many people who fail to graduate drug court often go on to become worse offenders, compared to both graduates and to similar defendants who do not participate in drug courts. According to a 2013 study of New York’s drug courts conducted by the Urban Institute and the Center for Court Innovation, which included data on more than 15,000 defendants, 64 percent of non-graduates were rearrested within three years, whereas only 36 percent of graduates were. Among comparable defendants who did not participate in drug courts, just 44 percent were re-arrested in that period, suggesting that those who tried but flunked drug court did worse than those who served their time.
May 21, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Tuesday, May 19, 2015
"NY Senate votes to create registry of violent felons"
The title of this post is the headline of this notable new AP article sent my way by a helpful reader. Here are excerpts:
The New York state Senate has voted to create a public list of those convicted of violent felonies similar to the existing sex offender registry. The proposal is intended to prevent future crimes, and in particular domestic violence, by allowing people to check if a new acquaintance has a violent past.
The legislation is named Brittany's Law after Brittany Passalacqua, a 12-year-old from Geneva who was murdered in 2009 along with her mother by her mother's then boyfriend. The boyfriend had a prior conviction for a violent felony.
Brittany’s grandmother, Dale Driscoll, remarked: “Words cannot express the gratitude my family and I have for Senator Nozzolio and his dedication and commitment to seeing ‘Brittany’s Law’ adopted into law. The murder of my daughter and granddaughter devastated our family. If this legislation prevents another family from suffering the loss we have experienced, then my daughter and granddaughter will not have died in vain. People should have the right to know if a person is a violent felon and I will continue to do everything I can to push this measure in the State Assembly.”...
The Senate passed the bill Monday. Similar legislation is pending in the Assembly but no vote has been scheduled.
Critics argue a registry could stigmatize ex-offenders and make it harder for them to secure jobs and housing after they are released.
Sunday, May 17, 2015
"Does Michigan's sex offender registry keep us safer?"
The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:
It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies. Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.
Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons. It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031. "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.
Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police. Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names. The registries are widely monitored by parents, potential employers and cautious neighbors.
To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online. But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional. For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.
Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....
Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors. No one was charged.
At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law. But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life. "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."
But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people. The supporters also dismiss the research, saying it's impossible to determine who might re-offend. They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.
"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."
Many parents say the registries makes them feel safer. Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know." Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."
Sex offender registry laws were first passed in the 1990s following a string of horrific child murders. The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.
Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives. In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....
Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective. And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law. For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.
Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes. A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....
Nationally, there are about 800,000 people registered as sex offenders across the 50 states. Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens. It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....
Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant. Some, though, think tougher laws are in order. And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.
Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."
A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."
J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees. He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....
While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.
May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack
Friday, May 15, 2015
Spectacular work on sex offender registration rules and other "collateral" stories at CCRC
Regular readers surely recall me highlighting all the great work still being done regularly over at the Collateral Consequences Resource Center. The newest post by Margy Love there, "50-state survey of relief from sex offender registration," demostrates why CCRC must be a regular read for all would-be criminal justice fans. Here is how it gets going:
We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law. This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,”discussed on this site on April 15. The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary. But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.
We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals.
It is risky to try to generalize about the results of our study, However, we found that registration laws seem to fall into three general categories:
- 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal;
- 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years;
- 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years.
And these other new posts from CCRC recently highlight the critical work being done at CCRC on topics beyond sex offender registration realities:
- Georgia high court extends Padilla to parole eligibility
- 27 Senators urge Obama to “ban the box” in federal hiring
- Leaked White House memos detail president’s pardon policy
- Collateral consequences and the transforming effect of the drug war
- Vermont becomes the 16th state to ban the box!
May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack
Tuesday, May 05, 2015
Oklahoma Gov signs "safety valve" legislation giving judges more sentencing discretion
As noted in this prior post, a few month ago the Oklahoma House passed by a significant margin a state Justice Safety Valve Act authorizing state judges to give sentences below otherwise-applicable mandatory minimums. Now, as effectively reported via this FreedomWorks posting, this notable sentencing reform has become law. The piece is headlined "Oklahoma becomes the latest Republican state to enact meaningful justice reforms," and here are the details (with links from the original).
Oklahoma Gov. Mary Fallin signed a major bill into law allowing judges to sentence nonviolent offenders below mandatory minimum sentences, a big government, one-size-fits-all policy that costs taxpayers big bucks....
Introduced in February by state Rep. Pam Peterson (R-Tulsa), the Justice Safety Valve Act, HB 1518, is aimed at reducing the rate of incarceration in the Oklahoma, which is among the highest in the United States. The bill allows sentences below mandatory minimums if a judge determines, based on a risk assessment, that a nonviolent offender is not a public safety risk. The bill would allow the state to save much-needed bed space for dangerous criminals.
"Our prison bed space is being taken up with people who don’t need to be there," Peterson told NewsOK.com in February. "These people are breaking the law, but I think we’ve gone to the point now where we need that space for violent offenders and are filling it up with too many nonviolent offenders."
"The courts' hands are often tied because of these mandatory minimums," she said. “Longer sentences do not equate to public safety.”
HB 1518 passed both chambers of the Republican-controlled Oklahoma State Legislature with relative ease. The House approved the bill in March by a 76 to 16 vote. The Senate followed suit in late April, passing the bill in a 31 to 13 vote. Fallin, a Republican, signed the bill on Monday.
In her State of the State address delivered in February, Fallin urged lawmakers to get "smart on crime," offering support for alternatives to incarceration for nonviolent offenders. Incarceration, she explained, actually increases the likelihood that an offender will continue a cycle of crime.
"Personal and community safety remain top priorities, and violent criminals will continue to be incarcerated. But the fact is, one in eleven Oklahomans serve time in prison at some point in their lives. Many of our current inmates are first time, nonviolent offenders with drug abuse and alcohol problems. Many also have mental health issues they need treatment for," said Fallin. "For some of these offenders, long sentences in state penitentiaries increase their likelihood of escalated criminal behavior.
"Oklahoma must ramp up its 'smart on crime' policies, including the Justice Reinvestment Initiative, designed to intervene for low-risk, nonviolent offenders and more readily offer alternatives such as drug-courts, veterans courts and mental health courts," she continued. "Implementation of coordinated 'smart on crime' efforts between state and local governments and tribal nations has demonstrated significant cost savings and improved outcomes for offenders and public safety."...
"It costs the state around $19,000 a year to house an inmate, but only $5,000 a year to send an addict through drug court and on to treatment," Fallin explained. "In addition to being less expensive, it’s also more effective; the recidivism rate for offenders sent to drug court is just one-fourth of the rate for those sent to prison."
The Justice Safety Valve Act will take effect on November 1.
May 5, 2015 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, May 03, 2015
“Catching American Sex Offenders Overseas: A proposal for a federal international mandated reporting law”
The title of this post is the title of this notable new law review article authored by Basyle Tchividjian, which I just came across. Here is an excerpt from the end of the piece's introduction:
In Asia alone, over 62,000 Americans visit each year for the purpose of sexually victimizing children.4 These numbers do not include other parts of the world, nor the United States citizens who reside overseas and sexually abuse children. This considerable problem requires a bold and practical response that has proven to be effective in the United States. It is time that federal law catch up to the states and mandate its citizens who are overseas to report Americans who are suspected of sexually abusing children in foreign countries.
Section II of this Article provides a brief foundational history of mandated reporting laws in the United States. Section III outlines the increased involvement of the federal government in promoting mandated reporting laws. Section IV summarizes the modern state of mandated reporting, and Section V analyzes the effectiveness of the current law. Section VI shifts the focus to the growing problem of United States citizens sexually victimizing children in foreign countries. Section VII introduces and analyzes the PROTECT Act, exposing a significant gap in the ability to enforce this federal law. Section VIII proposes a federal international mandated reporting law that will help close the gap and allow the PROTECT Act to achieve its objective of identifying and prosecuting United States citizens who sexually abuse children overseas.
May 3, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Monday, April 27, 2015
Is US push for sentencing reform progressive enough to embrace progressive "day fines"?
The question in the title of this post is prompted by this notable New York Times article about fine punishment for speeding in Finland. The piece is headlined "Speeding in Finland Can Cost a Fortune, if You Already Have One," and here are excerpts:
Getting a speeding ticket is not a feelgood moment for anyone. But consider Reima Kuisla, a Finnish businessman. He was recently fined 54,024 euros (about $58,000) for traveling a modest, if illegal, 64 miles per hour in a 50 m.p.h. zone. And no, the 54,024 euros did not turn out to be a typo, or a mistake of any kind.
Mr. Kuisla is a millionaire, and in Finland the fines for more serious speeding infractions are calculated according to income. The thinking here is that if it stings for the little guy, it should sting for the big guy, too. The ticket had its desired effect. Mr. Kuisla, 61, took to Facebook last month with 12 furious posts in which he included a picture of his speeding ticket and a picture of what 54,024 euros could buy if it were not going to the state coffers — a new Mercedes. He said he was seriously considering leaving Finland altogether....
The Nordic countries have long had a strong egalitarian streak, embracing progressive taxation and high levels of social spending. Perhaps less well known is that they also practice progressive punishment, when it comes to certain fines. A rich person, many citizens here believe, should pay more for the same offense if justice is to be served. The question is: How much more?...
At the University of Helsinki, Jussi Lahti, 35, a graduate student in geography, said that he could understand why Mr. Kuisla was upset, but that he considered the principle of an equal percentage fair. And, he added, Mr. Kuisla “had a choice when he decided to speed.”
The size of Mr. Kuisla’s ticket nonetheless drew considerable attention here as television shows and newspapers debated the merits of Finland’s system, which uses a complex formula based on income to calculate an individual’s fines. Some wondered whether the government should stop imposing such fines for infractions at relatively low speeds. Some suggested that a fine so big was really a form of taxation. But the idea that the rich should pay heavier fines did not seem to be much in question. “It is an old system,” said Pasi Kemppainen, chief superintendent at the National Police Board. “It may lead to high fines, but only for people who can afford it.”
In fact, the Finnish “day fine” system, also in use in some other Scandinavian countries, dates to the 1920s, when fines based on income were instituted for all manner of lesser crimes, such as petty theft and assault, and helped greatly reduce the prison population. The fines are calculated based on half an offender’s daily net income, with some consideration for the number of children under his or her roof and a deduction deemed to be enough to cover basic living expenses, currently 255 euros per month.
Then, that figure is multiplied by the number of days of income the offender should lose, according to the severity of the offense. Mr. Kuisla, a betting man who parlayed his winnings into a real estate empire, was clocked speeding near the Seinajoki airport. Given the speed he was going, Mr. Kuisla was assessed eight days. His fine was then calculated from his 2013 income, 6,559,742 euros, or more than $7 million at current exchange rates.
Someone committing a similar offense and earning about 50,000 euros a year, or $54,000, none of it capital gains, and with no young children, would get a fine of about 345 euros, or about $370. Someone earning 300,000 euros ($322,000), would have to pay about 1,480 euros ($1,590). When the “day fine system” was devised for petty crimes, Finland did not even have any speed limits on its roads. Those did not arrive until the 1970s....
Until he was issued the speeding ticket, Mr. Kuisla used his Facebook page largely to post pictures of his winning horses or the lobbies and bars of the hotels he owns. But the ticket seemed to focus his attention on Finnish policies that he said discouraged entrepreneurs, apparently a reference to the country’s progressive tax system and its high inheritance taxes. High earners can face an income tax rate of more than 50 percent. “Finland is now an impossible country to live in for people with a large income and wealth!” he posted on March 2.
But online comments in newspapers suggested a strong showing for the other side. “This says a lot about the times when the stinkingly rich can’t even take their fines for crimes, but are immediately moving out of the country. Farewell, we won’t miss you,” said one post in The Helsingin Sanomat, a daily newspaper and website....
Mr. Kuisla’s $58,000 ticket is not even the most severe speeding ticket issued in recent years. According to another daily newspaper, Ilkka, Mr. Kuisla himself got an even bigger fine in 2013 when he was going about 76 m.p.h. in a 50 m.p.h. zone. That ticket was for 63,448 euros, about $83,769 at the time. Bigger yet was the ticket issued to a 44-year-old Nokia executive in 2002, when he was caught blowing through Helsinki on his Harley motorcycle and was hit with a $103,600 fine, based on a $12.5 million yearly income.
Both tickets were appealed and in the end reduced. Usually, appeals are based on financial issues, such as a one-time sale of stock that year. But judges have great leeway, experts said. Mr. Kuisla ended up paying 5,346 euros for the 2013 ticket.
Long-time readers know that I am a huge fan of economic sanctions, and I have long thought that the Scandinavian "day fine" approach to punishment for lower-level crimes to be much more fair and effective than short terms of incarceration. I think it is fair to claim (and perhaps complain) that these kinds of day fine operate more like taxes than like traditional punishments; whatever label is attached, I suspect that defendants (especially rich ones) drive much more carefully in jurisdictions where an infraction is likely to have a real financial bite. Among other potential benefits, a "day fine" approach to certain lower-level "quality of life" offenses might prompt law enforcement to concentrate more of their policing resources in richer rather than poorer neighborhoods.
Perhaps needless to say, I doubt the billionaires who support sentencing reform in the US on both the left (George Soros) and the right (the Koch brothers) are likely to get behind a progressive "day fine" approach to devising effective alternatives to prison. But maybe all the folks now protesting police abuses in Baltimore and elsewhere might consider urging police department to adopt such an approach to police discipline (with the monies, I would urge, going to victim restitution funds).
April 27, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4) | TrackBack
Sunday, April 26, 2015
"Should former sex offenders be allowed on college campuses?"
The question in the title of this post is the first part of the headline given to this op-ed authored by Stephen JohnsonGrove, deputy director of the Ohio Justice & Policy Center. The rest of the headline, "Blanket policy doesn't work," suggests the author thinks the proper answer to this question is "no." And here are excerpts from the commentary:
Having a sensible safety conversation about living, working, and learning alongside people with sex-related convictions is fairly rare in Ohio, as it is in the rest of the U.S. Politically expedient fear-mongering and knee-jerk policy-making tend to be the norm, sometimes even creating a social environment where sexual offending is more likely, not less. The Ohio Justice & Policy Center has long been a voice in this state for laws and policies that are firmly rooted in evidence and a long-range commitment to safety.
A recent editorial in the Tri-C student newspaper ("Sex Offenders Mingling with Minors," March 10) raised the possibility of a sensible conversation in the community college context — though not without a little fear-mongering. The scenario painted in that editorial started with a "39-year-old registered sex-offender on parole for two separate cases of gross sexual imposition with both victims being under the age of 13." This may be a good place to start, and perhaps an easier case that we could all agree upon — this person ought not be put in an environment where he could so readily form potentially manipulative relationships with minors again.
There are harder cases, however. What about OJPC's client who, when a 19-year-old Marine home on leave, attended a party at Ohio State? While there, he met a young woman who said she was 18 and who certainly looked 18. After an evening of consensual sex, he was later confronted by her parents — by way of the local prosecutor — for statutory rape of a 16-year-old. Now in his 40s with children of his own, this man is on the public registry for life and has endured vigilante threats from neighbors who know nothing of the nature of his one and only sex offense, other than what the state-mandated postcard says: "Gross Sexual Imposition, Minor Victim."...
People with sex offenses are — despite any instinctive revulsion we may have to the label "sex offender" — still people. For some people with certain criminal records with a certain recency, perhaps online learning away from campus is the best alternative. For others with solid records of rehabilitation, we can and should welcome them into all aspects of our community — colleges included.
Thursday, April 16, 2015
Effective review of on-going reviews of sex offender residency restrictions
This new reporting by Steven Yoder via The Crime Report provides an effective update on what is going on lately with state-level sex offender residency restrictions and other sex offender laws and policies. The extended piece has this extended headline: "You Can’t Live Here: Do residency bans and other tough measures on sex offenders work? The evidence suggests they are counterproductive — and some states are already shifting policies." Here are excerpts:
Last month, the California Supreme Court ruled such blanket residency bans [on sex offenders] unconstitutional. It based the decision in part on evidence that residency laws drive up homelessness among offenders and make it harder for state authorities to monitor and rehabilitate them. It’s the latest sign that science has begun to trump passion on what is one of the most sensitive areas of criminal justice.
During the 1990s, at least 30 states enacted residency restrictions on convicted sex offenders who were released into their communities, as part of what appeared to be an increasingly harsh crackdown across the nation. Congress passed six new federal laws that ratcheted up penalties on those convicted of sex crimes. In some towns, the crackdown has extended to ordinances prohibiting those with a sex offense on their record from putting up Halloween decorations....
Today more than 20 states have sex offender policy boards, says Chris Lobanov-Rostovsky program manager for Colorado’s Sex Offender Management Board. That number is down slightly since 2010 — that year, 24 states had boards, according to a 2010 report by the Center for Sex Offender Management, funded by the Department of Justice.
A few of these groups last just a year or two and tackle discrete issues like how to certify sex offender treatment providers. Others take on broader offender management policies, weighing in on the likely impact of proposed bills.
Colorado’s board has run for more than 20 years, and Lobanov-Rostovsky gets about half a dozen calls a year from other states asking for advice on setting up their own boards. He travels to about one state a year to offer hands-on help, though he’s not aware of any states that have set up new boards in the last two years.
Boards normally pull in the groups that matter on the issue, typically including representatives of state law enforcement and other agencies, prosecutors, defense attorneys, judges or their representatives, sex offender treatment professionals, and victim advocates. Some boards have full or part-time salaried staff, as in Colorado’s case. Not surprisingly, boards with staff are more productive than those without, Lobanov-Rostovsky says.
Wednesday, April 15, 2015
"Database Infamia: Exit from the Sex Offender Registries"
The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:
Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means. Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.
This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.
April 15, 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 (5) | TrackBack
"Trending Now: The Use of Social Media Websites in Public Shaming Punishments"
The title of this post is the title of this intriguing new piece authored by Lauren Michelle Goldman now available via SSRN. Here is the abstract:
This Note proposes that a social media shaming sanction might be an effective addition to the menu of public shaming punishments the judiciary already offers. Section II of this Note lays the foundation of shaming punishments in America, giving an overview of their history and development. Section III discusses the Ninth Circuit’s recent decision in Gementera, in which the court upheld a modern-day public shaming punishment, as well as other select cases that have upheld public shaming punishments that involve print media.
Section IV outlines the current scholarly debate surrounding the use of public shaming punishments. Section V gives an overview of the presence of social media and Internet usage in today’s society, discusses a new trend among parents in which parents have begun to utilize social media to punish their children, and evaluates public shaming punishments via social media websites from the vantage point of various criminal law theories. Finally, Section VI advocates for the inclusion of online social media public shaming punishments into the judiciary’s already expansive list of sentencing options, but with some limitations and guidelines.
Wednesday, April 08, 2015
Federal judge finds unconstitutional "geographic exclusion zones" for sex offenders in Michigan
Thanks to a helpful reader, I did not miss this notable new story from the state up north headlined "Sex offenders can be within 1,000 feet of schools after federal judge strikes down parts of law." Here are the details:
A federal judge struck down some portions of Michigan's Sex Offender Registry Act in a court decision handed down last week. U.S. District Court Judge Robert Cleland issued a ruling March 31, striking down four portions of Michigan's Sex Offender Registry Act, calling them unconstitutional. The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of five John Does and one Jane Doe against Michigan Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue.
Cleland's ruling stated the "geographic exclusion zones" in the Sex Offender Registry Act, such as student safety areas that stretch for 1,000 feet around schools, are unconstitutional, according to court documents.
The law is too vague on whether the 1,000 feet barrier should be as the crow flies or how people actually travel, and if it goes from building-to-building or property-line-to-property-line, Cleland said in his ruling. "While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are susceptible to vagueness concerns," he wrote.
Cleland also stated law enforcement doesn't have strong enough guidelines to know how to measure the 1,000-foot exclusion zone around schools. Neither sex offenders or law enforcement have the tools or data to determine the zones, even if the guidelines on how to measure the zones were stronger, he said. "Accordingly, due to (the Sex Offender Registry Act's) vagueness, registrants are forced to choose between limiting where the reside, work and loiter to a greater extent than is required by law or risk violating SORA," he wrote.
Cleland struck down other portions of the law as well, but ruled in favor of the government on the rest of the lawsuit. Other portions of the law ruled unconstitutional were: a requirement to report in person to the "registering authority" when an offender begins to drive a vehicle regularly or begins to use a new e-mail or instant messaging address; a requirement for an offender to report all telephone numbers routinely used by an offender; a requirement to report all e-mail and instant messaging addresses; a requirement to report the license plate number, registration number and description of any motor vehicle, aircraft or vessel used by an offender....
The ruling drew an immediate reaction from State Sen. Rick Jones, R-Grand Ledge. In a statement released Tuesday morning, Jones, a former sheriff, said he plans to help rewrite the law to make up for the judge's ruling. "I warn sex offenders to stay away from schools. This is one judge's ruling, and the law will soon be changed to clarify it," said Jones, the chair of the Senate Judiciary Committee. "I'm working to make sure there is no vagueness in Michigan's Sex Offender Registry law. Child molesters must stay away from our schools. Law enforcement will be watching."
The full ruling, which runs 70+ pages, is available at this link.
Tuesday, March 31, 2015
Can we save thousands of innocent lives from serious crime through . . . a tax increase?
Those who vigorously oppose various modern sentencing reform proposals are often quick to suggest that any efforts to save taxpayer monies by reducing excessive prison terms could with the potential costs of increased crime and increased victimization. I tend to resist (as does most sophisticated research) the assertion that there is a zero-sum reality to incarceration rates and crime rates, but I do share a concern that any budget-driven criminal justice reforms need to keep a close watch on what evidence and research suggests is the public safety impact of reform.
With those thoughts always in mind, I am especially encouraged by this report about new research suggestion we might be able to successfully reduce serious crimes and innocent victimization through a tax increase that could be good for state budgets. The report is titled "Researchers see significant reduction in fatal car crashes after an increase in alcohol taxes," and here are the highlights:
Increasing state alcohol taxes could prevent thousands of deaths a year from car crashes, say University of Florida Health researchers, who found alcohol-related motor vehicle crashes decreased after taxes on beer, wine and spirits went up in Illinois.
A team of UF Health researchers discovered that fatal alcohol-related car crashes in Illinois declined 26 percent after a 2009 increase in alcohol tax. The decrease was even more marked for young people, at 37 percent. The reduction was similar for crashes involving alcohol-impaired drivers and extremely drunken drivers, at 22 and 25 percent, respectively. The study was released online in the American Journal of Public Health in March and will be published in a forthcoming issue.
“Similar alcohol tax increases implemented across the country could prevent thousands of deaths from car crashes each year,” said Alexander C. Wagenaar, a professor in the department of health outcomes and policy at the UF College of Medicine. “If policymakers are looking to address dangerous drivers on our roads and reduce the number of fatalities, they should reverse the trend of allowing inflation to erode alcohol taxes.”
Alcohol-related motor vehicle crashes account for almost 10,000 deaths and half a million injuries every year in the United States. Alcohol is more affordable than ever, a factor researchers say has contributed to Americans’ widespread drinking and driving. Drinking more than 10 drinks per day would have cost the average person about half of his or her disposable income in 1950 compared with only 3 percent in 2011. Alcoholic beverages have become so inexpensive because alcohol tax rates have declined substantially, after taking inflation into account....
The research team defined an impaired driver as having a blood alcohol level of less than .15 percent and an extremely drunken driver as having a blood alcohol level of more than .15 percent, which translates to roughly six drinks within an hour for an average adult. To control for multiple other factors that can affect motor vehicle crash rates, such as traffic safety programs, weather and economic conditions, the researchers compared the number of alcohol-related fatal crashes in Illinois with those unrelated to alcohol during the same time period as well as alcohol-related fatal crashes in Wisconsin, which did not change its alcohol taxes. Results confirmed that the decrease in crashes was due to the tax change, not other factors.
The larger-than-expected size of the effects of this modest tax increase may be because the tax change occurred at the same time as the Great Recession -- a time when unemployment was high and personal incomes lower, according to the study. “While our study confirms what dozens of earlier studies have found -- that an increase in alcohol taxes reduces drinking and reduces alcohol-related health problems, what is unique is that we identified that alcohol taxes do in fact impact the whole range of drinking drivers, including extremely drunk drivers,” Wagenaar said. “This goes against the conventional wisdom of many economists, who assert that heavy drinkers are less responsive to tax changes, and has powerful implications for how we can keep our communities safer.”
Monday, March 30, 2015
"Monitoring Youth: The Collision of Rights and Rehabilitation"
The title of this post is the title of this notable and timely new paper by Kate Weisburd now available via SSRN. Here is the abstract:
A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime. In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals. But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness. Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.
This Article is the first to examine the routine, and troubling, use of electronic monitoring in juvenile courts. After describing the realities of the practice and its proffered justifications, this Article refutes three key misperceptions about the practice: (1) that it lowers incarceration rates because it is used only on youth who would otherwise be detained; (2) that it effectively rehabilitates youth; and (3) that it is cost-effective.
Yet because of the deference afforded to judges in crafting terms of probation and pretrial release, the rehabilitative rhetoric of juvenile court, and the perception of electronic monitoring as non-punitive, electronic monitoring is subject to virtually no judicial oversight or scrutiny. The result is that the practice exists in a legal and policy netherworld: wielded and expanded with almost no limits. This Article concludes by arguing that electronic monitoring should be categorized as a form of punishment, warranting a new doctrinal framework that more rigorously evaluates, and circumscribes, monitoring and other forms of non-carceral control.
Sunday, March 29, 2015
Local Tennessee prosecutors pushed for female sterilization in plea discussions
A helpful reader alerted me to this stunning AP article about a stunning aspect of what some local prosecutors sometimes incorporated into plea discussion with female defendants in Tennessee. The piece is headlined "Attorneys: Sterilizations were part of plea deal talks," and here are some of the details:
Nashville prosecutors have made sterilization of women part of plea negotiations at least four times in the past five years, and the district attorney has banned his staff from using the invasive surgery as a bargaining chip after the latest case.
In the most recent case, first reported by The Tennessean, a woman with a 20-year history of mental illness had been charged with neglect after her 5-day-old baby mysteriously died. Her defense attorney says the prosecutor assigned to the case wouldn't go forward with a plea deal to keep the woman out of prison unless she had the surgery.
Defense attorneys say there have been at least three similar cases in the past five years, suggesting the practice may not be as rare as people think and may happen more often outside the public view and without the blessing of a court .
Sterilization coerced by the legal system evokes a dark time in America, when minorities, the poor and those deemed mentally unfit or "deficient" were forced to undergo medical procedures that prevented them from having children.
"The history of sterilization in this country is that it is applied to the most despised people — criminals and the people we're most afraid of, the mentally ill — and the one thing that that these two groups usually share is that they are the most poor. That is what we've done in the past, and that's a good reason not to do it now," said Paul Lombardo, a law professor and historian who teaches at Georgia State University.
Davidson County District Attorney Glenn Funk agrees. A former defense attorney who took over the office in September, he recently ordered lawyers in his office not to seek sterilization by defendants. He said he hadn't heard of it happening before but didn't ask. Funk said people could be ordered to stay away from children, and the state wouldn't have to resort to such invasive measures. "The bottom line is the government can't be ordering a forced sterilization," Funk said.
However, such deals do happen.
In West Virginia, a 21-year-old unmarried mother of three agreed to have her tubes tied in 2009 as part of her probation after she pleaded guilty to possession with intent to distribute marijuana. And last year, a Virginia man who fathered children with several women agreed to undergo a vasectomy in exchange for less prison time in a child endangerment case.
Forced sterilization came up in a different way in California last year, when Gov. Jerry Brown signed a bill that banned state prisons from forcing female inmates to be sterilized. The law was pushed through after the Center for Investigative Reporting found that nearly 150 female prisoners had been sterilized between 2006 and 2010. An audit found that the state failed to make sure the inmate's consent was lawfully obtained in every case ....
The assistant district attorney who worked the [most recent] case, Brian Holmgren, is a child prosecutor who speaks around the country, was once a senior attorney with the National Center for Prosecution of Child Abuse and serves on the international advisory board of the National Center for Shaken Baby Syndrome. He has been both praised and fiercely criticized for his aggressive courtroom tactics on behalf of children.... Holmgren did not respond to several messages seeking comment.
Nashville defense attorney Carrie Searcy said Holmgren asked that two of her clients who gave birth to children who tested positive for drugs undergo sterilization. Neither did, Searcy said, because both women had already undergone the procedure.
Assistant public defender Joan Lawson, who also supervises other attorneys, said she also had been involved in cases in which a prosecutor had put sterilization on the table. Lawson said it was typically not an explicit demand, was not an everyday occurrence and was made off the record. Lawson said she refused the idea and resolved her cases without sterilization. "It's always been more of 'If your client is willing to do this, then I might be inclined to talk about probation,'" Lawson said.
Friday, March 27, 2015
Prodded by state court ruling, California announces it will not enforce sex offender residency restrictions
The potential import and impact of state court litigation over collateral consequences is on full display now in California as a result of the news reported in this Los Angeles Times article:
California officials announced Thursday that the state would stop enforcing a key provision of a voter-approved law that prohibits all registered sex offenders from living near schools. The California Department of Corrections and Rehabilitation said it would no longer impose the blanket restrictions outlined in Jessica's Law that forbids all sex offenders from living within 2,000 feet of a school or park, regardless of whether their crimes involved children.
High-risk sex offenders and those whose crimes involved children under 14 will still be prohibited from living within a half-mile of a school, the CDCR emphasized. Otherwise, officials will assess each parolee based on factors relating to their individual cases, the agency said. The shift comes nine years after California voters approved the controversial law, which has made it difficult for some sex offenders to find places to live.
The California Supreme Court on March 2 unanimously ruled that Jessica's Law violated the constitutional rights of parolees living in San Diego County who had argued that the limitations made it impossible for them to obtain housing. As a result, advocates said, some parolees were living in places like riverbeds and alleys.
"While the court's ruling is specific to San Diego County, its rationale is not," CDCR spokesman Luis Patino said Thursday. "After reviewing the court's analysis, the state attorney general's office advised CDCR that applying the blanket mandatory residency restrictions of Jessica's Law would be found to be unconstitutional in every county."
The CDCR sent a memo to state parole officials on Wednesday outlining the policy change. The directive said residency restrictions could be established if there was a “nexus to their commitment offense, criminal history and/or future criminality." The memo said officials would soon provide further direction on how to modify conditions for parolees currently already living in the community....
A CDCR report found that the number of homeless sex offenders statewide increased by about 24 times in the three years after Jessica's Law took effect. Parole officers told the court that homeless parolees were more difficult to supervise and posed a greater risk to public safety than those with homes.... The court ultimately determined that the residency restrictions did not advance the goal of protecting children and infringed on parolees' constitutional rights to be free of unreasonable, arbitrary and oppressive government action.
This news reinforces my view that California's Supreme Court ruling in In re Taylor, S206143 (Cal. March 2, 2015) (available here) was especially significant for the future of sex offender residency restrictions. I am not surprised that California state officials concluded after reading Taylor that it had to modify how it approached Jessica's Law. The next big question is whether and how courts in other states will respond if and when Taylor is used by advocates to attack other residency restrictions similar to Jessica's Law.
A few prior recent related posts:
- California Supreme Court rules blanket sex-offender residency restriction fails rational basis review
- "Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"
- Growing awareness of the limited efficacy of local sex offender residency restrictions
Thursday, March 26, 2015
Is it constitutional to "offer" juve offenders the alternative sentence of writing a bible essay?
The question in the title of this post is prompted by this local article about a novel alternative sentence being utilized by a judge in Mississippi. Here are the details:
Dozens of tickets are written every month in South Mississippi for minors in possession of alcohol. It is an offense that could not only cost the person charged hundreds of dollars, it could also cause them to lose their license for up to 90 days, and even worse; it can follow them the rest of their lives. "If you enter a plea of guilty, it's on your record," Harrison County Justice Court Judge Albert Fountain said.
Fountain knows everyone makes mistakes, and instead of letting one mistake follow a young person for the rest of their life, the judge has come up with an alternative way to sentence children charged with minor in possession of alcohol. "A 1,000 word essay on The Book of Revelations and also the effects from drinking alcohol," Fountain said. "I don't force them to do that. It's their choice. That's just my recommendation. They can write it on anything they want to."
He also takes their license for 10 days and places them on a 90 day non-reporting probation with conditions of good behavior. "It just felt like I had to do something different," Fountain said. "There is more to it than just sentencing someone, and I felt I needed to make a difference."
While he knows it can be considered controversial, Fountain feels it is right. "Separation of church and state is a big topic, and I understand some people have their beliefs, but I think what's wrong with the country today is that we've taken Christ and God out of everything," Fountain said.
The judge has been sentencing children this way for the past eight to 10 years. He said about one in every 20 children choose to write an essay on something other than The Book of Revelations. "Some of the things I have gotten from them is that the fear, really reading the essays, what they ought to face in the future if they don't do the right things," Fountain said. "It's pleasing to me to see that."
Thursday, March 19, 2015
Effective review of the import and impact of new reentry certificates for former offenders
The Marshall Project has this interesting new piece of original reporting on an important new component of reentry effort. The piece is headlined "Forgiving vs. Forgetting: For offenders seeking a new life, a new redemption tool," and here is an excerpt:
[T]he granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability.
“These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates — available in that state since 2011 — more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.”
“That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.”
Paul Biebel, the presiding judge for Chicago's criminal court, agrees that the certificates are a promising new option. "Only over the last few years have we seen more of these coming through the court," he says of the certificates, "but I feel very strongly that they are an additional tool in a judge's toolbox to evaluate people. We judges are prepared to send people to prison. But now, if the evidence proves rehabilitation, we also have a tool for redeeming people."
Friday, March 13, 2015
Utah establishes criminal registry for white-collar offenders
Via this New York Times piece, I see that Utah has extended the idea of a criminal registry to fraudsters. Though I have reservations about criminal registries for a variety of reasons, I think this particular kind of registry might make a lot of sense as a recidivism/crime prevention measure. Here is how this fascinating story gets started:
With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society. Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.
Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons. The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”
“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”
While some Utah lawmakers fear that the registry is overkill, the idea does tap into a vein of populist outrage over financial misdeeds. As much as sex offender registries spread state by state, so too could a white-collar crime registry find favor across the nation, say its supporters.
The legislation’s sponsor in the Utah Senate, Curtis S. Bramble, a Republican, plans to promote the idea through his role as president-elect of the National Conference of State Legislatures, an influential group, saying that “the registry could become a best practices for other states.”
March 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
Monday, March 09, 2015
Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"
Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:
What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street? To my knowledge, this question has never been polled by any respected organization.
I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:
A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas. The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....
The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:
• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.
• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....
“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin. “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”
March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, March 04, 2015
First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing
Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing. The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:
Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.
The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.
We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges. We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....
A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.
Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance. We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.
Some related prior posts:
P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post. It has been a long day.
March 4, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack
"Boxed Out: Criminal History Screening and College Application Attrition"
The Center for Community Alternatives (CCA) and the Education from the Inside Out Coalition are pleased to announce the release of "Boxed Out: Criminal History Screening and College Application Attrition" written by Alan Rosenthal, Esq., Advisor on Special Projects and Counsel; Emily NaPier, M.A., Senior Research Associate; Patricia Warth, Esq. Director of Justice Strategies; and Marsha Weissman, Ph.D., Executive Director.
This report builds upon CCA's 2010 study, "The Use of Criminal History Records in College Admissions Reconsidered." It makes clear how the criminal history box on college applications and the supplemental requirements and procedures that follow create barriers to higher education for otherwise qualified applicants. We focused on the State University of New York (SUNY), and found that almost two out of every three applicants who disclosed a felony conviction were denied access to higher education, not because of purposeful denial of their application but because they were driven out of the application process by the stigmatizing questions and the "gauntlet" of additional requirements. We call this phenomenon "felony application attrition."
This case study of SUNY has national implications. The supplemental procedures and requirements imposed by SUNY campuses are not unique, and reflect procedures followed by many colleges and universities across the county.
Monday, March 02, 2015
California Supreme Court rules blanket sex-offender residency restriction fails rational basis review
In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds. As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."
As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:
In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b). As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....
The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole. We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.
March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
AG Holder provides Congress a sentencing reform to-do list
This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms. Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":
Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws. This presents a historic opportunity to improve the fairness of our criminal justice system. But unless we act quickly, we risk letting the moment pass.
The Justice Department has sought to be an early innovator on this front. A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice.... Preliminary results from this effort are extremely encouraging....
Last year also witnessed the first overall reduction in the federal prison population in 32 years. Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.
But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own. Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.
First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair. Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.
Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.
Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions. These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.
Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses. These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.
While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause. And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.
In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress. As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen." Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong."
I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act. Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front. In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).
Monday, February 16, 2015
Senate unanimously passes child porn restitution bill to fix Paroline problems
As report in this article, last week the U.S. Senate finally passed a bill to restructure the standards and procedures for restitution awards for victims of child porn downloading offenses. This bill made it through the full Senate a little less than year after the Supreme Court issued a split decision on this matter in the Paroline case. Here are the basics of the response by Congress:
A bill named for two women whose childhood images were turned into heinous pornography was handily passed in the Senate on Wednesday. The Amy and Vicky Child Pornography Victim Restitution Improvement Act was approved by a 98-0 vote.
The measure gives hope to victims that they will finally be able to win major compensation from any single person who illegally viewed, made or distributed their images. Victims of child pornography and other sexual exploitation “ought to have access to full restitution from any single perpetrator for their losses,” said Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican.
The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.
The bill responds to a 2014 Supreme Court 5-4 ruling in Paroline v. United States that said people convicted of viewing, making or distributing child pornography should be ordered to pay a nontrivial amount of restitution — but it should fit the scale of the offense....
The Paroline case stemmed from a lawsuit filed by a woman known as “Amy Unknown” against Doyle R. Paroline of Texas, who was convicted of having two images of her in his child pornography collection. When the 5th U.S. Circuit Court of Appeals ruled in Amy’s favor and ordered Paroline to pay $3.4 million in damages to her, Paroline asked the Supreme Court to review his case. Paroline’s court-appointed attorney said after they won last year that he would contest any restitution award against his client.
Amy, now an adult, was sexually assaulted by her uncle when she was about 9 years old. The uncle put pictures of her rape online, and those images have been shared by pedophiles worldwide. “Vicky” is the pseudonym of another victim, whose father raped her as a child and took “orders” from men to make videos of her being bound and sodomized.
I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders.
A few (of many) prior posts on Paroline and child porn restitution issues:
- SCOTUS splits the difference for child porn restitution awards in Paroline
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Explaining why I am rooting so hard for "Amy" in Paroline
- Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline
Thursday, January 29, 2015
"The Eternal Criminal Record"
The title of this post is the title of this important new book by James B. Jacobs. Here is a description of the book via the publisher's website:
For over sixty million Americans, possessing a criminal record overshadows everything else about their public identity. A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person’s interactions with just about everyone else. The Eternal Criminal Record makes transparent a pervasive system of police databases and identity screening that has become a routine feature of American life.
The United States is unique in making criminal information easy to obtain by employers, landlords, neighbors, even cyberstalkers. Its nationally integrated rap-sheet system is second to none as an effective law enforcement tool, but it has also facilitated the transfer of ever more sensitive information into the public domain. While there are good reasons for a person’s criminal past to be public knowledge, records of arrests that fail to result in convictions are of questionable benefit. Simply by placing someone under arrest, a police officer has the power to tag a person with a legal history that effectively incriminates him or her for life.
In James Jacobs’s view, law-abiding citizens have a right to know when individuals in their community or workplace represent a potential threat. But convicted persons have rights, too. Jacobs closely examines the problems created by erroneous record keeping, critiques the way the records of individuals who go years without a new conviction are expunged, and proposes strategies for eliminating discrimination based on criminal history, such as certifying the records of those who have demonstrated their rehabilitation.
Monday, January 26, 2015
Could charter schools within the prison system help reduce recidivism?
The question in the title of this post is prompted by this interesting article from Georgia headlined "Gov. Deal wants new charter high schools for prison system." Here are excerpts:
Gov. Nathan Deal in the both the amended 2015 and 2016 budgets is [recommending the legislature devote] money to help lower the recidivism rate in Georgia’s prisons. He’s including over $15 million dollars for two new charter high schools in the prison system so inmates can actually earn a diploma as opposed to just a GED. He says seven out of ten Georgia inmates have neither.
“Education can open the door of opportunity while shutting the revolving door that has plagued our prison system for far too long,” says Deal.
The recommendation includes nearly 30 academic positions for the new schools which would begin with the 2015-2016 school year. Deal says the schools would partner with the newly renamed Georgia Career College System, formerly the state’s technical colleges, to teach vocational skills. He says private prisons would also be given incentives to do the same.
“With a high school diploma or a GED, these individuals will certainly be better equipped to get a job and hopefully able to assume a greater pursuit of a job opportunity in the future because they have this basic education behind them,” says Deal.
He’s also including money to help inmates better assimilate into society once released through a transitional housing program for those inmates considered at highest risk for reoffending. Another $5 million is being proposed to expand the state’s accountability courts to keep non-violent offenders out of prison.
Saturday, January 24, 2015
Another remarkable exoneration thanks only to NC Innocence Inquiry Commission
On this blog, I typically do not extensively cover or frequently discuss exonerations and criminal appeals based on actual innocence claims because, as some may know, I fear guilt/innocence concerns can at times distort sentencing procedures and policy debates focused only on indisputably guilty persons. But this new amazing story out of North Carolina, headlined "After 36 years, Joseph Sledge's unfamiliar feeling: normal," seemed especially blogworthy for various reasons.
Most significantly, I think, is that this remarkable NC story highlights the unique benefits resulting if (and perhaps only when) a jurisdiction has a special institution and special procedures for dealing specifically with innocence claims. Here are the basic of one remarkable story that is embedded in the broader realities of North Carolina's unique approach to innocence concerns:
Joseph Sledge looked out across Lake Waccamaw on Friday afternoon, shivering against a cold January rain and trying to embrace an unfamiliar feeling: normal. Sledge walked out of jail Friday for the first time in 36 years without the burden of handcuffs and shackles.
He is finally free. The state had been wrong about him in 1978, and in all the years since; he is no killer. At 70, he will begin again. “I’m full up on freedom,” Sledge said shyly, leaning over a menu at Dale’s Seafood, a lakeside restaurant in rural Columbus County.
Sledge is the eighth man freed through a unique process that forces the state to deal with prisoners’ claims of innocence. The North Carolina Innocence Inquiry Commission, created in 2006, examined Sledge’s innocence claim over the last 18 months, and in December, it voted that his case merited a possible exoneration.
On Friday afternoon, a trio of judges did just that. Jon David, the Columbus County district attorney, made their decision swift and easy; David told judges he had become convinced that Sledge was innocent.
As Superior Court Judge Tom Lock announced Sledge’s exoneration, a dozen photographers and reporters rushed toward Sledge and his attorneys. Sledge smiled slightly as his attorneys, Christine Mumma and Cheryl Sullivan of the North Carolina Center on Actual Innocence, pulled him close. Applause erupted....
Sledge ... stole some T-shirts from a department store in the early 1970s. A judge sentenced him to four years in a prison camp in rural Eastern North Carolina. In 1976, with just a year left in his sentence, he escaped from the White Lake Prison Camp one night after a beef with another inmate.
That very night, not 5 miles away, someone brutally murdered Josephine and Ailene Davis, a mother and daughter, who lived together in rural Bladen County. That horrible coincidence set the course for Sledge’s life.
Sledge’s exoneration is bittersweet. It comes after dozens of mistakes and casual dismissals of his pleas for help. David, the district attorney, ticked through the justice system’s blind spots in Sledge’s case. The system wasn’t what it is now, he said. No DNA testing was available. The best it had – microscopic hair comparison – could only determine that Sledge’s pubic hair was consistent with pieces left on one victim’s exposed torso. Sledge’s escape and the wild testimony of two jailhouse informants made it all seem too obvious during the 1978 trial, which had been moved to Columbus County.
David said Friday that he regretted the system’s weaknesses and any part that court officials played in it. “There’s nothing we regret more to our values as prosecutors than to believe an innocent person is in prison,” David said. He offered Sledge an apology.
Mumma, who first encountered Sledge’s case a decade ago, has had a hard time swallowing all of the ways the criminal justice system failed Sledge – and the amount of time it took to make it right. Clues that should have sent investigators to other suspects were disregarded. None of the nearly 100 fingerprints taken from the crime scene matched Sledge’s. Investigators also collected head hairs from the victims’ bodies, but Sledge had always shaved his bare.
During two decades, Sledge sent dozens of letters to judges, police officials and prosecutors asking that they find and test evidence from his case for DNA. Yet it took nearly 20 years for a clerk to find hairs that would prove his innocence. By happenstance, a Columbus County clerk climbed a ladder in late 2012 while cleaning the evidence vault; she found an envelope flat on the top shelf with the missing hairs. The clerks had been ordered to search for that evidence as far back as 2003.
Without the state’s new apparatus for testing innocence claims, Sledge might have remained in prison. The Center on Actual Innocence and the Innocence Inquiry Commission interviewed dozens of people, testing memories that had faded over decades. Commission staff discovered crime scene evidence and investigators’ notes that local sheriff’s deputies had said for years had been lost or destroyed. The commission spent $60,000 on forensic testing.
January 24, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
Wednesday, January 21, 2015
Should a court hearing be required anytime a registered sex offender seeks entry to a public school?
The question in the title of this post is prompted by this notable article from Virginia headlined "ACLU questions new sex offender bill." Here are the details:
Their faces and address are already public, now one Virginia lawmaker wants registered sex offenders to face public hearings before going inside schools. To have access to Virginia public schools, House Bill 1366 would require violent sex offenders to pay for a newspaper ad publicizing a personal court hearing. It would run once a week for two weeks. Then anyone could attend the hearing and testify against them.
The bills author, Delegate Jeff Campbell, says it’s about safety, but the ACLU says it crosses the line of civil rights. “The public hearing is simply an invitation for an angry mob to gather at a school and get in the way of a parent’s right to be involved in the education of his or her child,” said ACLU of Virginia’s Executive Director Claire Gastanaga.
Gastanaga said there is no real proof that registries and restrictions like this keep kids safer. He said the most direct impact of the bill would be on parents with kids in school who want to go and meet with the kids’ teachers.
Delegate Campbell disagrees: “I disagree totally, what it does is it gives parents of the other children a say in who is around their children.”... “The public’s right to know who is around their children and to have a say in whether they agree in that or not trumps that individual’s right to free access to the school,” he said.
Currently, sex offenders must inform school superintendents before they go inside a Virginia school. Delegate Campbell said there was an incident last year in Wise County where a parent did that and got permission to attend sporting events, but then started showing up to school at other times. Parents got upset and that is the reason for his bill.
A subcommittee unanimously passed the bill on Monday, but there is no set date yet for it to go before the full committee.
Because Virginia's court system is surely already pretty crowded, the burden this bill will create for state court personnel strikes me as significant and notable. A bit of research revealed that there are about 20,000 registered sex offenders in Virginia. Even if only 10% of that group has good reason to go to a public school each year, the Virginia court system is going to have to handle 2000 more annual hearing to consider (and supervise?) any school visit.
Friday, January 16, 2015
AG Holder announces notable new limits on civil forfeitures to fund local police
As reported in this Washington Post article, headlined "Holder limits seized-asset sharing process that split billions with local, state police," the out-going Attorney General today announce a notable new policy that ought to take some of the economic incentives out of some drug war enforcement activities. Here are the basics:
Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.
While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”
Holder’s decision follows a Washington Post investigation published in September that found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.
January 16, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack
Thursday, January 15, 2015
Fifth Circuit reverses computer filter lifetime supervised release condition for sex offender
A Fifth Circuit panel yesterday handed down an intriguing little ruling in US v. Fernandez, No. 14-30151 (5th Cir. Jan. 14, 2015) (available here), reversing a notable condition of supervised release. Here is how the ruling starts and ends:
In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”. At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child)....
In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet. Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.
Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”. In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.
January 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Friday, January 02, 2015
"Policing Public Order Without the Criminal Law"
The title of this post is the title of this intriguing new paper now available via SSRN authored by Charlie Gerstein and J.J. Prescott. Here is the abstract:
Millions of Americans every year are charged with and detained for “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are “enforced” prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; in fact, they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant.
Maintaining public order is an important civic function, yet these unmoored cases have serious long-term consequences for defendants, their families, and our criminal justice institutions. Many scholars have argued that vague terms and broad standards in defining public order crimes results in broad discretion that leads to abuse.
In this essay, we argue instead that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language by and large moot. Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means. To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.
January 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack