Thursday, May 28, 2015

US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction

20-1n004-gleeson-c-ta-300x300Regular 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.

May 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

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.

May 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, May 17, 2015

"Does Michigan's sex offender registry keep us safer?"

B9317136721Z.1_20150516190456_000_G8HANTDOK.1-0The 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:

May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (3) | 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.

April 26, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

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.

April 16, 2015 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

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.

April 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

April 8, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

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.”

March 31, 2015 in Criminal Sentences Alternatives, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

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.

March 30, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

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.

March 29, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

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:

March 27, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

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."

March 26, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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."

March 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0) | TrackBack

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