Sentencing Law and Policy

"Do Defendants Get Enough Warning About a Guilty Plea's Consequences?"

The title of this post is the headline of this effective new article by Tony Mauro from The National Law Journal.  Here is the start of an effective piece that connects the Ballon Boy story to a pending Supreme Court case on this topic:

The attention-seeking parents of the Colorado "balloon boy" must not have had their thinking caps on last month when they told police their son was aboard a runaway hot air balloon.  But when their misadventure got them hauled into court, they suddenly smartened up.

On the advice of counsel, Richard and Mayumi Heene worked out a plea agreement that on Nov. 13 had them confess to different crimes.  The father is now a felon, but the mother pleaded guilty to a misdemeanor charge of false reporting.  Why?  Because she is a Japanese citizen, and if she had pleaded guilty to a felony, a collateral consequence would have been deportation.

The Heenes were lucky, but Jose Padilla, whose case went before the U.S. Supreme Court exactly one month earlier, was not. Padilla, a legal U.S. resident born in Honduras, pleaded guilty to an aggravated felony drug charge in Kentucky.  His lawyer told him the plea would not get him deported, because he had lived in the United States for decades.  The advice was flat wrong, Padilla faces deportation, and now he wants his plea set aside because of the bad advice he got.

Both cases, as different as they are, are casting new light on a legal issue that has been simmering for years: when, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty.

New York about to get tougher on drunk drivers

As regular readers know, one modern "get tough" sentencing movement that I am happy and eager to support concerns efforts to enhance and refine responses to the pervasive and harmful crime of drunk driving.  Thus, I was pleased to see this report in today's New York Times, which is headlined "New York Is Set for Strict Stand on D.W.I. Cases."   Here are the basics:

New York State would make it a felony to drive while intoxicated with a child in the vehicle and would require first-time convicted drunken drivers to buy a device that prevents them from driving their cars if they have been drinking, under a bill passed by the State Assembly on Tuesday.

The measure, which would significantly toughen penalties for drunken driving, could be passed by the Senate and sent to the governor this week.  It would make New York the second state, after Arizona, in which drivers under the influence of alcohol could be charged with a felony if they have children as passengers.

New York would also be one of only a dozen states that force drivers convicted for the first time of drunken driving to install what is called an interlock device, which measures the alcohol content of a driver’s breath and prevents the engine from starting if it detects too high a level.

The article also spotlights that, while there has long been evidence of the severe harms that regularly result from drug driving, it took a few high-profile cases to prompt what seems like overdue legislative action:

The push for harsher drunken-driving penalties follows two recent crashes in New York in which children were killed while traveling with adults who had been drinking....

Courts in New York convicted 37,695 people for drunken driving last year, and across the country people who drink and drive kill about 13,000 people a year....

A recent study by the Insurance Institute for Highway Safety, a nonprofit group financed by auto insurers, found that repeat drunken driving offenses dropped 65 percent among those with interlock devices.  Another study, by the National Highway Transportation Safety Administration, estimated that if the devices were more widely installed, they would save up to 750 lives a year....

Automakers and the federal government are now examining ways to make technology like ignition interlocks more widely available.  A panel made up of car manufacturers and government officials has begun looking into ways that all vehicles might include systems that prevent impaired drivers from getting behind the wheel.  For example, they have studied sensors that could be installed in steering wheels that detect alcohol through the skin and devices that automatically measure alcohol in the ambient air of a vehicle’s interior.

“Interlocks are very effective in preventing recidivism, but the problem is they’re used in a tiny proportion of cases,” said Russ Rader, a spokesman for the Insurance Institute for Highway Safety.   Figures collected by institute showed that in 2007, the most recent year data was available, 146,000 ignition interlocks were in use in the United States, even though 1.4 million people were convicted of drunken driving.

Last month, Gov. Arnold Schwarzenegger of California signed into law a pilot program making interlock devices mandatory for first-time drunken drivers in four counties, including Los Angeles and Sacramento.   Interlocks are in use in some form in 47 states, but most require them only for those who were found driving with an extremely high blood alcohol content or leave it to judges to decide whether they are used.

Some related posts on sentencing drunk drivers:

• Effective commentary complaining about undue leniency for drunk drivers
• New York Times editorial calls for ignition locks for all drunk drivers
• State judge makes pitch for ignition locks for drunk drivers
• "Car breath tests for 1st-time DUI offenders?"
• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Is capital punishment for drunk driving morally required?
• More examples of undue leniency shown to repeat drunk drivers
• "Some Coloradans drive until they kill" 

Can Carrie Prejean now use her "child porn" sex tape to her advantage?

In this post yesterday I discussed some of the federal child pornography laws implicated by the acts of  Former Miss California USA Carrie Prejean in making and distributing a "sex tape" at the tender age of 17.  Following up these points is this on-line commentary, titled "The Carrie Prejean sex tape is child pornography," which concludes with this intriguing bit of legal analysis and advice for Prejean:

You've got to be 18 to exercise your constitutionally protected rights to free speech by stripping off and having sex of any kind on camera. If you're a day below that age then it isn't free speech, it's child pornography. And those who sell it, those who distribute it and even, in certain places, those who watch it inadvertently can go to jail.

All of which leaves open an intriguing option for Carrie Prejean herself if she wishes to pursue it.  If it really is true that the pageant's lawyers played the tape in [a] meeting, rather than just revealing its existence, then they themselves are guilty of possession of (and quite possibly production of, given the way the law works about how computers reproduce images as they play them) child pornography.  Not that this would earn her any money, but seeing them go down for years as a result would be some sort of revenge, wouldn't it?

Of course, regular readers of this blog should now know that this commentary does not fully capture what Prejean might now hope to achieve through existing federal child porn laws.  As detailed in prior posts (some of which are linked below), a number of federal courts have ordered large restitution payments from child porn downloaders to the children/victims portrayed in the illegal images that have been unlawfully possessed.  So, were Prejean to convince federal officials to seek to prosecute some of the folks who have viewed and distributed her "child porn" sex tape, she might be able to seek significant restitution as the victim of these child porn offenses.

Of course, as I explained in my prior post about the Prejean sex tape, I am not seriously advocating that this matter become fodder for federal prosecutions.  Rather, I am simply eager to use this high-profile incident as a teaching moment to help make everyone aware of how broad federal child porn laws technically sweep.

Some recent related child porn posts:

• Is Carrie Prejean technically subject to 5-year mandatory minimum federal sentence for distributing child porn?
• Effective new opinion discussing restitution in federal child porn possession cases
• The latest (beneficial?) litigation front in child porn downloading battles
• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home

Public shaming instead of incarceration in Pennsylvania theft case

A helpful reader forwarded to me this story from Pennsylvania, headlined "Women Hold Signs Admitting Theft."  Long-time readers may recall that I tend to be a supporter of shaming sanctions, especially when they serve as a substitute for incarceration.  As the press report explains, that's exactly what has happened in this notable state case:

In exchange for no jail time, a woman and her adult daughter have agreed to stand outside a Pennsylvania courthouse holding signs saying they stole a gift card from a 9-year-old girl on her birthday.

Fifty-six-year-old Evelyn Border and 35-year-old Tina Griekspoor stood outside the court for 4 1/2 hours Tuesday.  They held signs that read: "I stole from a 9-year-old girl on her birthday!  Don't steal or this could happen to you!"

Because the women agreed to hold the signs, Bedford County District Attorney Bill Higgins says he'll ask for probation instead of jail when they plead guilty to the theft.  Higgins says they swiped a gift card that the girl set on a shelf while a Walmart employee helped her.

The girl's mother planned to drive by the courthouse to teach her daughter the importance of obeying the law.

Some new and old posts on shaming sentences:

• Shaming t-shirts ordered as part of community service sentence
• Six-year-old suggests dad's shaming sentence
• A proper case for shaming?
• What punishments really undermine human dignity?
• Shaming punishments and communitarianism
• New article on shaming sanctions
• More shame, shame on you
• The state of shaming punishments (with lots of links)

Effective new opinion discussing restitution in federal child porn possession cases

I posted hereearlier this week an effective newspaper report on efforts by some persons who were victimized in "popular" child porn to obtain restitution from defendants being sentenced for possessing this child porn.  Coincidentally, on Monday, Maine US District Judge George Singal issued a long and thoughtful opinion on this topic in US v. Berk, No. 08-CR-212-P-S (D. Maine Oct. 26, 2009) (available for download below). Here are some notable excerpts from the opinion (with some cites omitted):

It has long been uncontroversial to order restitution when the defendant is convicted of the actual physical abuse of a child or of producing images constituting child pornography. But victims and the Government have only recently begun seeking restitution from the end-users or possessors of child pornography. Indeed, counsel for “Amy” represents that the first restitution order against a defendant convicted only of possession of child pornography was entered in June of this year. (Amy’s Restitution Br. at 78.)

A review of the cases decided thus far shows that victims’ success in obtaining restitution has varied significantly in district courts across the country.6 At one extreme, courts have awarded the entire amount requested by the victims without any discussion as to proximate causation.  See, e.g., United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *4 (S.D. Fla. Sept. 2, 2009). At the other extreme, some courts have declined to order any restitution based on the lack of evidence showing a quantifiable loss proximately caused by the offense of conviction.  See, e.g., United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009).  Some courts appear to have adopted a set amount for each defendant convicted of possession of child pornography. For example, the Central District of California seems to routinely order restitution of $5000 while the Eastern District of California routinely orders restitution of $3000.  See United States v. Brown, No. 2:08-cr-1435-RGK-1 (C.D. Cal. filed Oct. 5, 2009) (awarding $5,000); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009).  Additionally, in some cases, the Government and the defendant have stipulated to a restitution amount.  See United States v. Granato, No. 2:08-cr-198 (D. Nev. filed Aug. 28, 2009)....

It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm.  The difficulty lies in determining what portion of the Victims’ loss, if any, was proximately caused by the specific acts of this particular Defendant.

Having reviewed all of the evidence, the Court finds that there is nothing in the record showing a specific loss that was proximately caused by this particular Defendant’s possession of the victims’ images.  The losses described the by the Victims are generalized and caused by the idea of their images being publicly viewed rather than caused by this particular Defendant having viewed their images. In the documentation supporting the Victims’ restitution requests, there is no mention of the impact that learning of Mr. Berk’s offense had on either of the Victims.  In fact, there is no mention of Mr. Berk at all....

Because the Government has failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction, the Court declines to enter a restitution order in this case.

Download Berk ruling on CP Restitution

Some related recent federal child porn prosecution and sentencing posts:

• The latest (beneficial?) litigation front in child porn downloading battles
• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• More examples of sentencing uncertainty surrounding federal child porn cases

UPDATE:  A helpful readers sent m a copy of a revised amended opinion in Berk, which can be downloaded below:

Download Amended Order on Restitution in Berk

Supervised sex offenders required to attend education meeting on Halloween night

In recent years in lots of communities, sex offenders are formally required or highly encouraged to turn off their lights and/or otherwise avoid any involvement in Halloween activities.  Now, as detailed in this local article from Alabama, it seems that many jurisdictions are now taking more proactive measure to keep sex offenders out of the community and out of sight on Halloween:

A new policy from state and federal probation offices is aimed first at helping educate and reintegrate sex offenders and secondly to safeguard the community, said U.S. Supervisory Probation Officer Jeff Purcell.

Felony sex offenders are required by the State of Alabama Probation and Parole Office and the U.S. Probation Office to report to an undisclosed location for a meeting from 5:30 to 9 p.m. Saturday, according to the Probation Office of the U.S. District Court, Northern District. This includes felony sex offenders under federal supervision in Madison, Morgan, Lawrence counties and Madison County offenders under state supervision.

“We thought it would be comforting for the community to know these folks are not at home on Halloween night and they don’t have to worry about kids going to their doors,” Purcell said.

The meeting includes an educational program for offenders, with discussions including updates on sex offender laws, the Adam Walsh Act and rehabilitation opportunities, as well as training for employment. “This operation is a proactive venture to provide education and training to sex offenders, improve accountability and behavior change, as well as safeguard the community in that these sex offenders will not be participating in Halloween activities,” Purcell said.

Previously, felony offenders were required only to turn off their lights, not answer the door or hand out candy on Halloween. “We would have to check up on them and make sure they were doing that,” Purcell said. “It’s difficult to get to all the houses.” The meeting is required only for supervised offenders. “We don’t have any authority over those who are not under supervision,” he said.

The latest (beneficial?) litigation front in child porn downloading battles

I just found this effective local article discussing what is becoming an important and very interesting new front in the battle over child porn prosecution and sentencing.  The piece is headlined "Victim of child porn seeks damages from viewers," and here are excerpts:

The Misty series is one of the most popular and readily available kiddie porn videos on the Internet. It's considered a collector's item among pedophiles. Downloading it is a felony. Amy, now 20, remains traumatized by the crimes but became devastated upon learning they have been distributed worldwide. Officials have identified 750 individuals who possess the Misty series, but they believe tens of thousands of copies are out there.

In a novel approach to getting help, she and an attorney have begun petitioning federal courts for restitution against anyone convicted of possessing the Misty series....

The Violence Against Women Act of 1994 includes a section requiring restitution for victims of sex crimes. Whether that extends to defendants convicted of downloading and viewing child pornography remains a hotly contested question across the country. Some judges have awarded Amy millions; others have given her nothing.

Amy, who lives in the Northeast, seeks restitution for physical, psychiatric and psychological care, occupational therapy, transportation, housing, child care, lost income, attorneys' fees and other losses that might result from the crimes that have occurred.  She has described her horror in a letter to courts [which is available here] where she is seeking restitution....

Even though the restitution law has been on the books for 15 years, no one tried to collect from defendants who downloaded and viewed the videos until this year.  Those who produced the videos, such as Amy's uncle, have long been held accountable for payments to the victims. 

Only recently has the Department of Justice begun notifying victims such as Amy by letter that they could be entitled to restitution. More than 2,600 child victims have been positively identified.  Amy and another victim who was brutalized on film, in what's known as the "Vicky" series, began filing requests for restitution earlier this year.

In 20 cases, they have had mixed results.  A federal judge in Florida ordered a defendant to pay Amy $3.2 million, nearly the full amount she sought based on estimates for lost wages and mental health treatment for the rest of her life, but that case is on appeal.  Even if she wins, the defendant, James Freeman, is serving a 50-year prison term and has few assets.

Some child pornography defendants, such as Freeman and Norfolk's Shon Walter, who is serving 23 years in federal prison for looking at kiddie porn, are serving more time than Amy's uncle.  The uncle, convicted of repeatedly raping Amy, filming the attacks and selling the videos, is eligible for parole in 2011 after serving a minimum of 12 years.

Another judge in Florida awarded Amy her full $3.6 million request, but that case is also on appeal.  Most judges awarded Amy and Vicky minimal damages of between $1,000 and $3,000.  Federal judges in Oregon, California, Hawaii and Arkansas and in the Alexandria federal court denied restitution awards for Amy and the Vicky series victim.  The Arkansas judge found that there was no reasonable way to assess a restitution amount, that the victim was not identifiable and that there was no proof of a "causal link" between viewing the images and specific injury to Amy.

The government has appealed that case, which could set up a showdown at the U.S. Supreme Court over the conflicting rulings. 

As regular readers know, I am generally a fan of financial penalties as an alternative to long imprisonment terms.  Consequently, my first instinct is to be support of efforts by child porn victims to seek restitution awards from even those who only download these images.  That said, I do not think it makes much sense for individual downloaders to be on the hook for huge restitution payments. 

Moreover, I hope federal judges eager or inclined to award restitution in this kinds of cases ought also to seriously consider short prison sentences in service to the provisions of 18 USC 3553(a)(7), which require a judge to consider the "need to provide restitution" to victims at the time of sentencing.  It seems obvious to me that long prison terms necessarily will diminish the ability of a defendant to be able to make reasonable restitution payments.

Some related recent federal child porn prosecution and sentencing posts:

• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• More examples of sentencing uncertainty surrounding federal child porn cases
• Judge Adelman operationalizes deconstructed child porn guidelines
• Effective review of federal uptick in child-porn prosecutions

Federal sentence for receiving child porn includes forfeiture of home

This local article from Kentucky, which is headlined "Lexington man sentenced to 15 years, forfeits home in child the sentencing of a child porn case. Here are the details:

A Lexington man must spend more than 15 years in prison and forfeit his Chevy Chase home after pleading guilty to child pornography charges, a federal judge ruled Tuesday.

Joseph Robert Leitner, 62, pleaded guilty in June to one charge of receiving child pornography.  He admitted collecting child pornography for years and had computers and CDs that contained more than 30,000 images of child pornography, some involving children as young as 6, according to his plea agreement.  There were approximately 100 CDs and several computers seized during the search of Leitner's residence in June 2008.

Senior Judge Karl S. Forester sentenced Leitner Tuesday to 188 months in prison.  The federal government will also seize Leitner's home at 417 Cochran Road because of the high volume of images and the length of time Leitner used his home to download and view child pornography.

Leitner is the first defendant to forfeit his home because of a child pornography conviction in the Eastern District of Kentucky, according to the U.S. Attorney's Office for the Eastern District of Kentucky. Assistant U.S. Attorney Hydee R. Hawkins, who prosecuted Leitner, said the sentence sends a message to child predators that "we are going to take the very place you used to exploit children."

Leitner said during sentencing that he had not downloaded or watched child pornography since 2000. "They probably were dusty as the devil when you guys found them," Leitner said of the CDs seized from his home. "I hadn't watched them in years."...

A man who said he was molested by Leitner more than 50 years ago also testified during Tuesday's sentencing.  Another man said testified that Leitner molested him for six years, beginning when he was 3.

Effective coverage of SCOTUS criminal forfeiture case argued today

Over at The Volokh Conspiracy in this post, Ilya Somin has lots of effective coverage of Alvarez v. Smith, a criminal-justice-related forfeiture case heard by the Supreme Court. Here is part of his effective summary of the argument as it went off today:

Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented.  Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit decision, which I feared might happen.  The oral argument transcript also suggests that many of the justices – both liberal and conservative – are skeptical of the government’s position on the merits.  They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing.  At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly.

The transcript from oral argument in Alvarez v. Smith (08-351) is available here.

"Prison Time or Restitution?: Sentencing for fraud often a balancing act"

The title of this post is the headline of this article from my local paper, which raises some classic hard questions in the sentencing of economic crimes.  Here are snippets from an interesting and effective piece:

It's unlikely that Melanie Chen's victims will ever recoup the thousands of dollars they lost to her cancer hoax.  A Delaware County Common Pleas judge sentenced Chen on Tuesday to eight years in prison for swindling her in-laws and other relatives and friends out of $792,191 after convincing them that her husband, Phylip, 38, had cancer.

Chen, 30, of Columbus, also was ordered to pay full restitution, but Assistant Prosecutor Bill Owen knows from experience that probably won't happen. The money is long gone....

Chen's victims have conflicting emotions, which isn't unusual in fraud cases, Owen said. Some are more concerned with recovering the stolen money than with punishment, while others seem satisfied that Chen is in prison.  Phylip Chen also faces criminal charges and awaits a trial scheduled for Oct. 27. "It's just very difficult for a victim of an economic crime to ever feel any closure," Owen said.

Sentencing criminals convicted of fraud is a balancing act.  Judges often impose a prison term for financial crimes, especially if the case involves multiple victims, said David Diroll, executive director of the Ohio Criminal Sentencing Commission.  "The dilemma the courts have is, on one hand you have many people bothered by this and outraged that they've been scammed," Diroll said.  "You weigh that against whether sending someone to prison gives them any meaningful shot at restitution."

Before deciding on a sentence, judges consider the loss to victims and the criminal's ability to pay what they owe, Diroll said.  They also consider the person's background, education and employment history.  That's why punishments vary from court to court and judge to judge, even for similar crimes.  Sometimes, judges suspend prison sentences or grant early release from prison so that restitution can be collected sooner.

A state tax agent fired in February for theft recently was ordered to repay the $67,657 she stole from taxpayers over 14 months.  Franklin County Common Pleas Judge Laurel A. Beatty suspended a five-year prison term for Lisa M. Finnell, 41, and ordered her to complete five years of probation instead.  "I told her I preferred her making payments to the taxpayers of Ohio than sitting in a prison cell," Beatty said after Finnell's sentencing on Sept. 30.

But in many cases, the defendant doesn't have the means to pay restitution, particularly when it's a very large amount, said Mark Schweikert, executive director of the Ohio Judicial Conference and a retired judge.  "Each case is unique and has its own set of facts, and each offender has their own set of circumstances," Schweikert said.  "That's why we have judges and not computers making those decisions."

Because prison time imposes lots of tangible costs while providing few tangible benefits to either victims or society, I am always inclined to favor significant economic sanctions for economic crimes.  Specifically, I think both restitution and fines paid to a general victim compensation fund should be regular part of sentencing for all economic crimes. 

My broader hope is that, if and when economic crime victims start seeing efforts by prosecutors and judges to make them whole, these victims will start actively advocating punishments that enhance the chance of successful offender reentry (which should increase the ability of an offender to make restiution) rather than just urging longer prison terms (which generally decreases an offenders economic productivity). 

Should domestic violence offenders have to register like sex offenders?

The question in this post is prompted by this interesting story out of New York.  The piece is headlined, "NY Lawmaker Pushes For Domestic Violence Registry: Domestic Abuse Offenders Would Have To Sign Up Similar To What's Required Of Sex Offenders."  Here are some details:

A Long Island woman is recounting the terror she and her daughter endured at the hands of her ex-husband. This as efforts are underway to create an online registry of domestic violence offenders, just like sex offenders. The Suffolk County woman and her daughter, who have asked to remain unidentified, are in hiding from her ex-husband, who police say was previously arrested for domestic violence and weapons possession.

"My ex-husband he would go into rage. He put a knife to my throat, he spit on me, he choked me, many times in front of my daughter; he would lock us in the closet, also the psychological abuse," she told CBS 2. "Currently my ex-husband is online, on every single dating site. Women are looking at his profile. He indicates he is a physician. He indicates how much money he makes."

As easily as one finds an online date, there could be a way to find out if that prospective mate has a violent history. Suffolk County Legislator DuWayne Gregory (D-Amityville) wants to create an online registry of the county's domestic violence offenders. "They'll be outed, and the community and the world will know this is the thing they do behind closed doors," said Gregory.

Gregory compares his Suffolk County legislation to the sex offender registry. It would include an offender's name, address, and photograph, creating a shame-factor for abusers. "It's going to save lives and keep people out of danger. That"s why we are pushing it 100 percent," he said.

CBS 2 spoke with several coalitions against domestic violence who called the bill "well-intentioned," but concerned it could backfire. "The primary concern is about the victim's confidentiality," said Ruth Reynolds of the Suffolk Co. Victims Information Bureau and Family Violence Center....

Still, the victim we spoke with, for one, urges lawmakers to adopt the measure. "This is why I speak out, because there should be a registry to indicate their offenses," she said.

The full Legislature will not act on the bill before November because the sponsor, Legislator Gregory, wants to add a provision that would leave it up to a judge to decide how long each domestic violence predator would be named on the registry.

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements.  (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.) 

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct.  (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.)  I wonder if any public policy or law reform groups are working on model criminal registry legislation.  A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

"Killing puts 'castration' on French agenda"

The title of this post is the headline of this article forwarded by a helpful reader that details an on-going sentencing debate in France after a high-profile crime by a sex offender with a criminal history.  Here are the details:

France is considering forcing some sex offenders to undergo chemical castration after a public outcry over the murder of a jogger by a rapist who had recently been released from prison. The prime minister, François Fillon, said the government was looking at legislation on hormonal treatment for offenders after the abduction and killing of Marie-Christine Hodeau.

The 42-year-old, who lived alone with her elderly mother, was snatched on Monday morning while out for her regular jog in a forest south of Paris. Just after 9am, she called police on her mobile phone from the boot of a car, saying she had been grabbed by a man with a knife. She gave the car's number plate, but the call was suddenly interrupted.

Police moved fast to trace the car and its owner, Manuel da Cruz. But for days the French public were gripped as searches did not find the woman. Hodeau's DNA was found under the fingernails of Cruz's left hand and eventually he led police to her naked body, hidden in undergrowth 12 miles from where she was abducted....

Public shock was compounded when it emerged that Cruz, a 47-year-old concierge and father of four, had served seven years of an 11-year-sentence for kidnapping and raping a 13-year-old girl in 2000.  Released from prison on parole, he had moved back to the neighbourhood where his teenage victim lived.

The case has reopened the heated debate on how to deal with reoffenders in France – a favourite subject of President Nicolas Sarkozy, who prides himself on his tough stance on law and order.  This week he met Hodeau's family at the Élysée palace.

When, in reaction to the case, a spokesman for Sarkozy's centre-right UMP party called for wider use of chemical castration, an outraged Socialist party spokesman called the idea "deplorable" and "indecent".  But several ministers have now suggested a discussion on broadening the use of chemical castration....

Chemical castration is a reversible process in which the administration of drugs or injections lowers the sex drive. France, along with a number of other European countries including Sweden and Denmark, already allows the procedure if offenders agree to it. Poland last month approved a law making chemical castration mandatory for some offenders convicted of sex crimes against children. Several US states enforce similar measures.

"Chemical castration exists today, it just depends on an agreement by the person concerned," Fillon said. "We have to look at how, as part of surveillance and control measures after someone leaves prison, we might make this more restrictive, if necessary. It's a subject we are working on and we will make proposals to parliament."

Sarkozy called for the closer supervision of paroled prisoners and a review of France's criminal psychiatry system. But magistrates unions protested after the interior minister blamed the jogger's murder on lenient judges and parole officers.

It is notable and telling, in a European kind of way, that this case is not leading to calls for the return of the death penalty.  It is also disappointing, as I have noted in many prior posts, that there seems to be little or no serious empirical evidence about the efficacy of chemical castration even though this alternative punishment seems to have a significant modern history.

Some related recent posts:

• Are there reliable data on the efficacy of chemical castration?
• "Europeans Debate Castration of Sex Offenders"
• Isn't chemical castration worth trying if it works?
• Alabama legislators discussing castration and other novel punishments for sex offenders

Lucky in lottery, but not so lucky in law

This local story, which is headlined "Convicted embezzler to forfeit state lottery prize," provides a perfect bit of justice to close down a dynamics sentencing week.  Here are the details:

Paul W. Lyle learned that he won the grand prize in a Kansas Lottery second-chance drawing at his preliminary hearing 11 days ago. Trouble was: The former radio executive was facing a charge of felony theft for embezzling a reported $87,750 from his employer, American Media Investments, which owns three radio stations in Pittsburg, five in Joplin, Mo., and five more in Texas.

The supreme irony: Lyle, 63, the company’s chief operating officer until the theft was discovered in May, confessed that he stole the money to feed an out-of-control addiction to scratch-off state lottery tickets.

Crawford County Sheriff Sandy Horton said investigators discovered $30,457 worth of losing scratch-off tickets in a drawer of Lyle’s desk in his office at KKOW radio station near Pittsburg. Lyle was charged with the offense July 21.

But then his name popped out of the hopper Sept. 20 at the Kansas State Fair in Hutchinson in a “second-chance drawing” for purchasers of losing scratch-off tickets... Estimated value of the total package: $96,000....

As part of the plea bargain, prosecutor Michael Gayoso Jr. said, Lyle has agreed to turn over his entire lottery winnings to help pay the anticipated restitution that American Media Investments will be owed in the case. Lyle is to be sentenced Nov. 30 in Crawford County District Court.

Split Ohio Supreme Court upholds criminal punishment for DUI arrestee refusing chemical test

As detailed in this official press release, this morning the Supreme Court of Ohio "upheld as constitutional a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation."  The majority opinion in the 4-3 ruling in State v. Hoover, No. 2009-Ohio-4993 (Ohio Sept. 30, 2009) (available here), starts this way:

In this case, we consider the constitutionality of R.C. 4511.19(A)(2), which requires the imposition of criminal penalties upon certain persons who refuse to consent to chemical testing upon being arrested for operating a motor vehicle while under the influence of alcohol or a drug of abuse (“DUI”).  We hold that R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Section 14, Article I of the Ohio Constitution.

The dissenting opinion starts this way:

The majority’s interpretation of R.C. 4511.19(A)(2) signals a fork in the road.  R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test.  Since imposing a criminal penalty for refusing to consent infringes on a suspect’s rights under Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution, I dissent.

Seeking First Amendment and feminist perspectives on an escort's sentence

This new federal sentencing story out of California, which is headlined "Stanford Law School grad turned call girl sentenced to home detention," has so many interesting and comment-worthy dimensions.  First, the basics:

A Stanford Law School graduate was sentenced Monday on a federal tax conviction related to running a high-priced call girl service, punishment that includes restrictions on her ability to keep advertising as an escort while she's on probation.

During a hearing in San Jose federal court, U.S. District Judge James Ware concluded he needed to impose those restrictions on Cristina Warthen after federal prosecutors disclosed she's continued to advertise herself on the Internet as a high-priced escort, even as she awaited sentencing on federal tax evasion charges related to her days as an upscale prostitute named "Brazil."

Warthen gained notoriety when she was busted as a jet-setting call girl who sold her services to pay off her Stanford Law School debts.  She got her law degree from Stanford in May 2001, but quickly began to run a steamy Web site with offers to jet off for liaisons with clients in cities around the country, including New York, Chicago and Washington, D.C. She eventually pleaded guilty to failing to pay taxes on more than $133,000 she earned as a prostitute in 2003.

Under a plea deal with the government, Warthen was sentenced Monday to one year of home detention with an electronic monitoring device and three years of probation.  She also has to pay the government a total of about $243,000, less than the original $313,000 set out in her original plea arrangement.

Federal prosecutors agreed to the lower amount when Warthen demonstrated she could not pay it after her recent divorce from David Warthen, the co-founder of the online search engine Ask Jeeves, now known as Ask.com.  Court papers show the once-wealthy Web entrepreneur's finances were decimated by last year's stock market collapse, and he could not provide more money to his now-ex-wife, who says she's unemployed.

But Ware was dismayed to learn from federal prosecutors and probation officials that Warthen has continued to advertise her escort services as she has awaited sentencing. Assistant U.S. Attorney David Callaway told the judge Warthen has posted ads on the Internet offering "companionship" for $2,000 a night. "We all know that's a wink and nod and what she really is advertising is high end prostitution," Callaway said in court.

Warthen, who has been temporarily living in Seattle with her mother, has placed an escort ad on the Web. The image of her face is blurred in photographs on the Web ad, which boasts of a graduate degree from an "Ivy League university." Brian Getz, Warthen's attorney, objected to the government's request, saying she is a "law abiding citizen" who has a free speech right to advertise escort services as long as she's not breaking prostitution laws.  But Ware, noting that her sentence is already "lenient," was unmoved.

Now, a few First Amendment and feminist musings.  Because I am not a First Amendment scholar, I am not even sure of the basic doctrines that surround government prohibitions on forms of advertising/speech that might a form of illegal solicitation.  But I wonder if this kind of prohibition on internet advertising of guns or viagra would have been imposed on a male defendant who pleaded guilty to evading taxes for prior illegal sales of guns or prescription drugs.

Technocorrections, economic realities and a new privacy/liberty relationship

Today's Washington Post has this interesting article focused on alcohol monitoring devices, which is headlined "Sweat Becomes Offenders' New Snitch: Alcohol-Sniffing Anklet Saves Money but Stirs Privacy Fears."  As this excerpt reveals, the piece discussion various important issues that come up in the context of many technocorrections:

[Bari Lynne] Williams wears a high-tech sensor on her ankle that can detect the faintest whiff of alcohol in her perspiration. If she sneaks a drink, the device will know it -- and so will a judge, who could put her behind bars for violating a court order to avoid alcoholic beverages.

At $12 a day, the anklet is a bargain, compared with $150 a day to house a minor offender such as Williams in the Loudoun County jail, and far less than the $24,332 a year it costs Virginia to keep a felon in state prison.  Best of all, backers say, Williams and other offenders pay the bill.

The biometric anklet represents a recent technological breakthrough whose popularity is gaining as state and local governments search for ways to close budget deficits during the recession. More than half of all states have slashed spending on corrections this year, while some, including New Hampshire, Michigan, California and now Virginia, are closing prisons, releasing some prisoners early or expanding the use of electronic monitoring.

Local governments are also targeting jails for cost-savings. Loudoun, which began using the alcohol-monitoring device 18 months ago, introduced a pilot program last week using anklets with global positioning system technology to track juvenile offenders. Fairfax County Supervisor Pat S. Herrity (R-Springfield) hopes to promote the use of it for his county, and a Fairfax County Circuit Court judge applied it to a defendant in a domestic violence case.

But the gadget has also stirred "Big Brother" jitters as technological advances make it easier for governments and corporations to keep tabs on people. While law enforcement has been using satellite-based GPS to track offenders' whereabouts for some time, privacy advocates say the alcohol-monitoring device -- known as Secure Continuous Remote Alcohol Monitor, or SCRAM -- has taken law enforcement into the realm of continuously and remotely monitoring people's physical condition. "We are at a point where no one could have even imagined 15 years ago," said Albert J. Lurigio, a professor of psychology and criminal justice at Loyola University who has written about electronic monitoring and privacy since a New Mexico judge, inspired by Spider-Man comics, became the first to sentence a defendant to home confinement with an electronic monitor.

The driver these days is money. The National Conference of State Legislatures lists 28 states that are squeezing savings from corrections by easing harsh drug laws, laying off staff workers or closing prisons. New Hampshire's governor has proposed using home confinement for habitual drunk drivers, and California lawmakers considered freeing thousands of nonviolent inmates and monitoring them with GPS devices before opting for less-controversial cuts.

As I was reading this piece, I got to thinking about how technology in general and technocorrections in particular could be producing a new a relationship between liberty and privacy.  Before certain modern technologies and technocorrections, one could generally assume that enhanced individual privacy would also advance and ensure enhanced individual liberty.  But, as this story spotlights, due to economic realities and other forces, some offenders who are willing (or required) to give up privacy by being monitored by GPS and SCRAM and other devices may actually be rewarded with increased liberty by being able to avoid extra time in prison or jail. 

Some related posts on GPS tracking and related technocorrections:

• The technical challenges posed by technocorrections
• State judge makes pitch for ignition locks for drunk drivers
• Is the future parole with GPS and other techno-reentry devices?
• The inevitability of GPS tracking and cost-saving technocorrections
• Another reason to believe GPS technocorrections are inevitable
• Why tight budget times will speed path to technocorrections
• Are microchip implants for offenders inevitable?
• UK getting serious about GPS through microchip implants
• Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
• More on the pros and cons of GPS tracking
• More reasons to expect a GPS-world of corrections
• New article examining incapacitation innovations

State judge makes pitch for ignition locks for drunk drivers

Thanks to a helpful commentor, I just noticed this terrific Slate piece in which a retired state court judge makes an effective pitch for one of my favorite modern technocorrection punishment : ignition locks for drunk drivers.  The piece is headlined "Baby, You Can't Drive Your Car: A judge's favorite punishment for drunken drivers—ignition-interlock," and it discusses lots of legal reform issues that transcend just how to deal with drunk drivers:

On May 28, 1987, I became the first judge in the state of California to order convicted drunken drivers to install ignition-interlock devices in their cars.  The device is designed to stop people who have been drinking alcohol from starting their cars by requiring them first to blow into it.  If there is alcohol on the driver's breath, the device will not allow the ignition system to operate.

Ordering convicted drunken drivers to install these devices seems to me a matter of common sense and basic safety.  But in fact, the matter proved far more complicated.  The California courts may soon require judges to follow my lead on ignition-interlock sentencing.  But it has taken more than 20 years and new legislation, which is on Gov. Arnold Schwarzenegger's desk awaiting his signature. Why has it taken so long?  And why do we need a law mandating such an obvious safety measure when judges could put it into effect themselves?

My own history suggests one unsettling answer.  Early on, my fellow judges did not support my ignition-interlock sentences. Judges, no less than the rest of us, resist change. My colleagues who were assigned to calendars filled with drunken driving charges wanted to dispose of these cases quickly and quietly, obtaining guilty pleas as early in the process as possible. Completing the additional paperwork that went with ignition-interlock devices did not sit well with them.

Then came the totally unexpected opposition from the local chapter of Mothers Against Drunk Driving. In their view, the ignition-interlock devices weren't punitive enough; they preferred more jail time for drunken drivers. Incarceration, however, is a temporary remedy. As the recidivism numbers clearly demonstrate, convicted drunken drivers return to the roads in numbers too great to ignore.

And finally, in my own court, as I continued to order the installation of ignition-interlock systems, I started to worry about fairness, since the devices are expensive....

Today, almost all 50 states have laws permitting the imposition of ignition-interlock devices as sentencing alternatives for drunken drivers. The devices have a proven track record as an effective deterrent.  The American Journal of Preventive Medicine notes that five out of six studies found that interlocks reduced the rate of recidivism for DWI charges.  Participants in the interlock programs were 15 percent to 69 percent less likely than other offenders to be rearrested for drunken driving.

And yet, as a recent New York Times op-ed noted, while the effectiveness of the devices is clear, judges often fail to order the installations, even when the law requires it. Anecdotally, you can take your pick of explanations: too much paperwork; too much court time to review the results of the breath printouts; opposition to any other sentencing options other than jail; ignorance of the fact that this is a sentencing alternative.  In any case, just as convicted drunken drivers must be made to use the devices, judges must be made to order them.  The well-documented carnage on our highways and the tremendous economic impact wreaked upon us by drunken drivers are far too great to leave to judicial whim.

In California, the bill on the governor's desk, which passed earlier this month, would require judges to order the installation of ignition-interlock devices in the vehicles of convicted first-time and repeat drunken drivers, as a pilot project in the counties of Los Angeles, Alameda, Sacramento, and Tulare.  If Gov. Schwarzenegger signs the bill, the pilot program would start in July 2010 and become statewide law in 2016.  This legislation is supported by a wide array of law enforcement agencies, including MADD, which has changed its stance on ignition-interlock sentencing.

Schwarzenegger should sign the bill. It will make our judges better.  And it will make our streets safer.  Finally.

There are so many important insights and lessons to be drawn from this story, especially as it relates to the institutional status quo biases that often prevents sensible and effective sentencing and punishment reforms from gaining traction.  Here is hoping not only that ignition locks soon become a standard punishment term for drunk driving, but also that this story helps folks interested in "smart on crime" reforms to understand the structural challenges that make even the soundest sentencing changes hard to achieve.

Some related posts on sentencing drunk drivers:

• "Car breath tests for 1st-time DUI offenders?"
• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Is capital punishment for drunk driving morally required?
• More examples of undue leniency shown to repeat drunk drivers
• "Some Coloradans drive until they kill" 

A Bill James furlough for a jailed Red Sox fan

I became a Bill James fan as a kid after reading the baseball guru's extraordinary analysis of a seemingly meaningless loss mid-season by the Kansas City Royals in the mid 1980s.  Two decades later, I recall this memory because of this local sentencing story, which is headlined "Jailed Red Sox fan in Iowa gets Royal treatment," sent my way by a helpful reader.  Here are excerpts:

It’s like a little bit of the Bay State in the Corn Belt. Red Sox Nation citizenship got one Hawkeye out of jail for the day.

Taking a page from furlough-happy Massachusetts jurisprudence, an Iowa judge sprung a jailed man so he could watch his beloved Red Sox play the Kansas City Royals last night.

Randy Barker is half-way through two concurrent 10-day sentences for violation of a protective order, but prior to his conviction last week, his dad scored tickets to the Sox Midwest showdown, according to his court-appointed lawyer, Margaret King. She told the court Barker is a diehard Sox fan.

In a move King called “compassionate,” magistrate Benny Waggoner allowed Barker’s father and brother to pick him up from jail, drive him the four hours to Kauffman Stadium in Kansas City, then bring him back, she said. “He’s going to be allowed to go with his daddy and brother. They’ll bring him back tonight,” she said. “It’s a small town. Everybody knows everybody, and everybody trusts everybody . . . Everybody had a lot of compassion for him.”

When reached, the Van Buren County Sheriff’s Office in Keosauqua, Iowa, said no one was available to comment on the arrest. County Attorney Craig Miller said he objected to the decision, but not strenously “under the circumstances.” “I opposed the motion, because he was serving a jail sentence,” Miller said. “I think the judge made the decision, trying to be fair to the defendant and to the family.”

Ninth Circuit upholds barring from San Francisco as a supervised release condition

A Ninth Circuit panel today has an interesting ruling upholding an unusual condition of supervised release in US v. Watson, No. 08-10385 (9th Cir. Sept. 24, 2009) (available here). Here is how it starts:

Deandre Watson, who pled guilty to carjacking pursuant to a plea agreement containing a waiver of the right to appeal, challenges a condition of his supervised release barring him from entering San Francisco without the prior approval of his probation officer. He argues that the district court did not provide the necessary notice before issuing this condition and that the condition itself violates his “constitutional rights to travel and move, to freedom of association, to intimate association with his family and related rights.”

A waiver of the right to appeal does not bar a defendant from challenging an illegal sentence. We conclude, however, that the disputed supervised release condition directing Watson to stay out of San Francisco during the term of his super vised release unless he obtains permission from his probation officer is not unlawful. It is reasonably tied to the court’s stated aims of rehabilitation and deterrence and is no more restrictive than reasonably necessary to serve those purposes. Nor do we find here any of the other circumstances that cause a waiver of appeal to be ineffective. The language of Watson’s plea agreement waiver encompasses this appeal and the waiver was knowingly and voluntarily made given the circumstances surrounding the agreement. We accordingly dismiss the appeal.

Are there reliable data on the efficacy of chemical castration?

This question in the title of this post is prompted by this interesting new piece out of Australia, which discusses the idea of chemical castration for certain sex offenders.  Here excerpts from the piece:

A recent spate of stories about sex offenders has put chemical castration back in the spotlight, sparking ethical concerns and warnings about its effectiveness.

The group of drugs used for chemical castration stops the actions of sex hormones by blocking testosterone, which underlies sexual impulses and sexual feelings. With reduced libidos, the aim is to reduce the impulse of convicted rapists, molesters and paedophiles to offend again.

But Queensland Council of Civil Liberties president Michael Cope considers chemical castration a human rights abuse, no matter how serious the offender in question is. "We consider it to be cruel and inhumane and it's like the death penalty, as subsequently if somebody's found out to be innocent you can't take it back," he told ABC News Online.

Mr Cope says the whole idea of chemical castration — which has been used across Australia and the world for decades — is based on the wrong premise. "It's not directed at what sex offences are actually about — which is power — which is what most people accept these days. Castrating people and trying to remove their urge is not the answer to it," he said....

But the Royal Australian and New Zealand College of Psychiatrists president-elect, Louise Newman, believes chemical castration, which works as long as the patient stays on the medication, should be considered for the more "hard core" sexual offenders.

"It's certainly not a cure or a way of reducing all risk, but it might be seen as a useful component of treatment or management for some of these very difficult cases, where we're unlikely to see response to other methods," Professor Newman told ABC News Online. "They're not commonly used at all and they are not needed other than in the fairly difficult group of very severe offenders."

This kind of story drive me crazy, because it does not tell me what I really want to know — the article reports that chemical castration "has been used across Australia and the world for decades," but it does not have any discussion how effective this alternative sentence has been.