Wednesday, March 04, 2015

First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing

Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing.  The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:

Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.

The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.

We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges.  We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....

A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.

Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance.  We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.

Some related prior posts:

P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post.  It has been a long day.

March 4, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

"Boxed Out: Criminal History Screening and College Application Attrition"

CoverBoxedOutThe title of this post is the title of this notable new report, which is summarized via this website at the Center for Community Alternatives: 

The Center for Community Alternatives (CCA) and the Education from the Inside Out Coalition are pleased to announce the release of "Boxed Out: Criminal History Screening and College Application Attrition" written by Alan Rosenthal, Esq., Advisor on Special Projects and Counsel; Emily NaPier, M.A., Senior Research Associate; Patricia Warth, Esq. Director of Justice Strategies; and Marsha Weissman, Ph.D., Executive Director.

This report builds upon CCA's 2010 study, "The Use of Criminal History Records in College Admissions Reconsidered." It makes clear how the criminal history box on college applications and the supplemental requirements and procedures that follow create barriers to higher education for otherwise qualified applicants. We focused on the State University of New York (SUNY), and found that almost two out of every three applicants who disclosed a felony conviction were denied access to higher education, not because of purposeful denial of their application but because they were driven out of the application process by the stigmatizing questions and the "gauntlet" of additional requirements. We call this phenomenon "felony application attrition."

This case study of SUNY has national implications. The supplemental procedures and requirements imposed by SUNY campuses are not unique, and reflect procedures followed by many colleges and universities across the county.

March 4, 2015 in Collateral consequences, Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

Monday, March 02, 2015

California Supreme Court rules blanket sex-offender residency restriction fails rational basis review

In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds.  As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."

As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:

In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b).  As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons.  Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....

The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.  We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.

March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

AG Holder provides Congress a sentencing reform to-do list

This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms.  Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":

Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws.  This presents a historic opportunity to improve the fairness of our criminal justice system.  But unless we act quickly, we risk letting the moment pass.

The Justice Department has sought to be an early innovator on this front.  A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice....  Preliminary results from this effort are extremely encouraging....

Last year also witnessed the first overall reduction in the federal prison population in 32 years.  Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.

But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own.  Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.

First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair.  Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.

Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.

Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions.  These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.

Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses.  These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.

While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause.  And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.

In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress.  As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen."  Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong." 

I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act.  Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front.  In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).

March 2, 2015 in Clemency and Pardons, Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, February 16, 2015

Senate unanimously passes child porn restitution bill to fix Paroline problems

As report in this article, last week the U.S. Senate finally passed a bill to restructure the standards and procedures for restitution awards for victims of child porn downloading offenses.  This bill made it through the full Senate a little less than year after the Supreme Court issued a split decision on this matter in the Paroline case.  Here are the basics of the response by Congress:

A bill named for two women whose childhood images were turned into heinous pornography was handily passed in the Senate on Wednesday. The Amy and Vicky Child Pornography Victim Restitution Improvement Act was approved by a 98-0 vote.

The measure gives hope to victims that they will finally be able to win major compensation from any single person who illegally viewed, made or distributed their images. Victims of child pornography and other sexual exploitation “ought to have access to full restitution from any single perpetrator for their losses,” said Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican.

The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.

The bill responds to a 2014 Supreme Court 5-4 ruling in Paroline v. United States that said people convicted of viewing, making or distributing child pornography should be ordered to pay a nontrivial amount of restitution — but it should fit the scale of the offense....

The Paroline case stemmed from a lawsuit filed by a woman known as “Amy Unknown” against Doyle R. Paroline of Texas, who was convicted of having two images of her in his child pornography collection. When the 5th U.S. Circuit Court of Appeals ruled in Amy’s favor and ordered Paroline to pay $3.4 million in damages to her, Paroline asked the Supreme Court to review his case. Paroline’s court-appointed attorney said after they won last year that he would contest any restitution award against his client.

Amy, now an adult, was sexually assaulted by her uncle when she was about 9 years old. The uncle put pictures of her rape online, and those images have been shared by pedophiles worldwide. “Vicky” is the pseudonym of another victim, whose father raped her as a child and took “orders” from men to make videos of her being bound and sodomized.

I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders.

A few (of many) prior posts on Paroline and child porn restitution issues:

February 16, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Thursday, January 29, 2015

"The Eternal Criminal Record"

9780674368262The title of this post is the title of this important new book by James B. Jacobs. Here is a description of the book via the publisher's website: 

For over sixty million Americans, possessing a criminal record overshadows everything else about their public identity.  A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person’s interactions with just about everyone else.  The Eternal Criminal Record makes transparent a pervasive system of police databases and identity screening that has become a routine feature of American life.

The United States is unique in making criminal information easy to obtain by employers, landlords, neighbors, even cyberstalkers.  Its nationally integrated rap-sheet system is second to none as an effective law enforcement tool, but it has also facilitated the transfer of ever more sensitive information into the public domain.  While there are good reasons for a person’s criminal past to be public knowledge, records of arrests that fail to result in convictions are of questionable benefit. Simply by placing someone under arrest, a police officer has the power to tag a person with a legal history that effectively incriminates him or her for life.

In James Jacobs’s view, law-abiding citizens have a right to know when individuals in their community or workplace represent a potential threat.  But convicted persons have rights, too.  Jacobs closely examines the problems created by erroneous record keeping, critiques the way the records of individuals who go years without a new conviction are expunged, and proposes strategies for eliminating discrimination based on criminal history, such as certifying the records of those who have demonstrated their rehabilitation.

January 29, 2015 in Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (1) | TrackBack

Monday, January 26, 2015

Could charter schools within the prison system help reduce recidivism?

The question in the title of this post is prompted by this interesting article from Georgia headlined "Gov. Deal wants new charter high schools for prison system." Here are excerpts:

Gov. Nathan Deal in the both the amended 2015 and 2016 budgets is [recommending the legislature devote] money to help lower the recidivism rate in Georgia’s prisons.  He’s including over $15 million dollars for two new charter high schools in the prison system so inmates can actually earn a diploma as opposed to just a GED. He says seven out of ten Georgia inmates have neither.

“Education can open the door of opportunity while shutting the revolving door that has plagued our prison system for far too long,” says Deal.

The recommendation includes nearly 30 academic positions for the new schools which would begin with the 2015-2016 school year. Deal says the schools would partner with the newly renamed Georgia Career College System, formerly the state’s technical colleges, to teach vocational skills. He says private prisons would also be given incentives to do the same.

“With a high school diploma or a GED, these individuals will certainly be better equipped to get a job and hopefully able to assume a greater pursuit of a job opportunity in the future because they have this basic education behind them,” says Deal.

He’s also including money to help inmates better assimilate into society once released through a transitional housing program for those inmates considered at highest risk for reoffending. Another $5 million is being proposed to expand the state’s accountability courts to keep non-violent offenders out of prison.

January 26, 2015 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (3) | TrackBack

Saturday, January 24, 2015

Another remarkable exoneration thanks only to NC Innocence Inquiry Commission

3a47dbc6b83315036c0f6a70670038b2On this blog, I typically do not extensively cover or frequently discuss exonerations and criminal appeals based on actual innocence claims because, as some may know, I fear guilt/innocence concerns can at times distort sentencing procedures and policy debates focused only on indisputably guilty persons.  But this new amazing story out of North Carolina, headlined "After 36 years, Joseph Sledge's unfamiliar feeling: normal," seemed especially blogworthy for various reasons.  

Most significantly, I think, is that this remarkable NC story highlights the unique benefits resulting if (and perhaps only when) a jurisdiction has a special institution and special procedures for  dealing specifically with innocence claims. Here are the basic of one remarkable story that is embedded in the broader realities of North Carolina's unique approach to innocence concerns:

Joseph Sledge looked out across Lake Waccamaw on Friday afternoon, shivering against a cold January rain and trying to embrace an unfamiliar feeling: normal. Sledge walked out of jail Friday for the first time in 36 years without the burden of handcuffs and shackles.

He is finally free. The state had been wrong about him in 1978, and in all the years since; he is no killer. At 70, he will begin again. “I’m full up on freedom,” Sledge said shyly, leaning over a menu at Dale’s Seafood, a lakeside restaurant in rural Columbus County.

Sledge is the eighth man freed through a unique process that forces the state to deal with prisoners’ claims of innocence. The North Carolina Innocence Inquiry Commission, created in 2006, examined Sledge’s innocence claim over the last 18 months, and in December, it voted that his case merited a possible exoneration.

On Friday afternoon, a trio of judges did just that. Jon David, the Columbus County district attorney, made their decision swift and easy; David told judges he had become convinced that Sledge was innocent.

As Superior Court Judge Tom Lock announced Sledge’s exoneration, a dozen photographers and reporters rushed toward Sledge and his attorneys. Sledge smiled slightly as his attorneys, Christine Mumma and Cheryl Sullivan of the North Carolina Center on Actual Innocence, pulled him close. Applause erupted....

Sledge ... stole some T-shirts from a department store in the early 1970s. A judge sentenced him to four years in a prison camp in rural Eastern North Carolina. In 1976, with just a year left in his sentence, he escaped from the White Lake Prison Camp one night after a beef with another inmate.

That very night, not 5 miles away, someone brutally murdered Josephine and Ailene Davis, a mother and daughter, who lived together in rural Bladen County. That horrible coincidence set the course for Sledge’s life.

Sledge’s exoneration is bittersweet. It comes after dozens of mistakes and casual dismissals of his pleas for help. David, the district attorney, ticked through the justice system’s blind spots in Sledge’s case. The system wasn’t what it is now, he said. No DNA testing was available. The best it had – microscopic hair comparison – could only determine that Sledge’s pubic hair was consistent with pieces left on one victim’s exposed torso. Sledge’s escape and the wild testimony of two jailhouse informants made it all seem too obvious during the 1978 trial, which had been moved to Columbus County.

David said Friday that he regretted the system’s weaknesses and any part that court officials played in it. “There’s nothing we regret more to our values as prosecutors than to believe an innocent person is in prison,” David said. He offered Sledge an apology.

Mumma, who first encountered Sledge’s case a decade ago, has had a hard time swallowing all of the ways the criminal justice system failed Sledge – and the amount of time it took to make it right. Clues that should have sent investigators to other suspects were disregarded. None of the nearly 100 fingerprints taken from the crime scene matched Sledge’s. Investigators also collected head hairs from the victims’ bodies, but Sledge had always shaved his bare.

During two decades, Sledge sent dozens of letters to judges, police officials and prosecutors asking that they find and test evidence from his case for DNA. Yet it took nearly 20 years for a clerk to find hairs that would prove his innocence. By happenstance, a Columbus County clerk climbed a ladder in late 2012 while cleaning the evidence vault; she found an envelope flat on the top shelf with the missing hairs. The clerks had been ordered to search for that evidence as far back as 2003.

Without the state’s new apparatus for testing innocence claims, Sledge might have remained in prison. The Center on Actual Innocence and the Innocence Inquiry Commission interviewed dozens of people, testing memories that had faded over decades.  Commission staff discovered crime scene evidence and investigators’ notes that local sheriff’s deputies had said for years had been lost or destroyed.  The commission spent $60,000 on forensic testing.

January 24, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, January 21, 2015

Should a court hearing be required anytime a registered sex offender seeks entry to a public school?

The question in the title of this post is prompted by this notable article from Virginia headlined "ACLU questions new sex offender bill." Here are the details:

Their faces and address are already public, now one Virginia lawmaker wants registered sex offenders to face public hearings before going inside schools.  To have access to Virginia public schools, House Bill 1366 would require violent sex offenders to pay for a newspaper ad publicizing a personal court hearing.  It would run once a week for two weeks. Then anyone could attend the hearing and testify against them.

The bills author, Delegate Jeff Campbell, says it’s about safety, but the ACLU says it crosses the line of civil rights.  “The public hearing is simply an invitation for an angry mob to gather at a school and get in the way of a parent’s right to be involved in the education of his or her child,” said ACLU of Virginia’s Executive Director Claire Gastanaga.

Gastanaga said there is no real proof that registries and restrictions like this keep kids safer. He said the most direct impact of the bill would be on parents with kids in school who want to go and meet with the kids’ teachers.

Delegate Campbell disagrees: “I disagree totally, what it does is it gives parents of the other children a say in who is around their children.”... “The public’s right to know who is around their children and to have a say in whether they agree in that or not trumps that individual’s right to free access to the school,” he said.

Currently, sex offenders must inform school superintendents before they go inside a Virginia school. Delegate Campbell said there was an incident last year in Wise County where a parent did that and got permission to attend sporting events, but then started showing up to school at other times. Parents got upset and that is the reason for his bill.

A subcommittee unanimously passed the bill on Monday, but there is no set date yet for it to go before the full committee.

Because Virginia's court system is surely already pretty crowded, the burden this bill will create for state court personnel strikes me as significant and notable. A bit of research revealed that there are about 20,000 registered sex offenders in Virginia. Even if only 10% of that group has good reason to go to a public school each year, the Virginia court system is going to have to handle 2000 more annual hearing to consider (and supervise?) any school visit.

January 21, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, January 16, 2015

AG Holder announces notable new limits on civil forfeitures to fund local police

As reported in this Washington Post article, headlined "Holder limits seized-asset sharing process that split billions with local, state police," the out-going Attorney General today announce a notable new policy that ought to take some of the economic incentives out of some drug war enforcement activities. Here are the basics:

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”

Holder’s decision follows a Washington Post investigation published in September that found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.

January 16, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, January 15, 2015

Fifth Circuit reverses computer filter lifetime supervised release condition for sex offender

A Fifth Circuit panel yesterday handed down an intriguing little ruling in US v. Fernandez, No. 14-30151 (5th Cir. Jan. 14, 2015) (available here), reversing a notable condition of supervised release. Here is how the ruling starts and ends:

In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”. At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child)....

In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet. Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.

Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”. In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.

January 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Friday, January 02, 2015

"Policing Public Order Without the Criminal Law"

The title of this post is the title of this intriguing new paper now available via SSRN authored by Charlie Gerstein and J.J. Prescott. Here is the abstract:

Millions of Americans every year are charged with and detained for “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point.  Rather, public order offenses are “enforced” prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process.  These “process costs” are significant; in fact, they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant.

Maintaining public order is an important civic function, yet these unmoored cases have serious long-term consequences for defendants, their families, and our criminal justice institutions.  Many scholars have argued that vague terms and broad standards in defining public order crimes results in broad discretion that leads to abuse.

In this essay, we argue instead that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language by and large moot.  Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means.  To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.

January 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Monday, December 29, 2014

Pennsylvania Supreme Court declares state's sex offender registration regulations violate juve offenders' due process rights

Via How Appealing, I see that the Supreme Court of Pennsylvania issued this majority opinion in In the Interest of J.B., J-44A-G-2014 (Pa. Dec. 29, 2014), declaring unconstitutional part of the state's sex offender registration laws (over a lone justice's dissenting opinion). Here is a portion from the start and end of the majority opinion:

In this case, we consider the constitutionality of provisions of the Sex Offender Registration and Notification Act (SORNA) as applied to juveniles.  42 Pa.C.S. §§ 9799.10-9799.41. Pursuant to 42 Pa.C.S. § 722(7), we review this case directly from the order of the York County Court of Common Pleas holding the statute unconstitutional as violative of the ex post facto clause, protections against cruel and unusual punishment, and due process rights through the use of an irrebuttable presumption.  In the Interest of J.B. et al., No. CP-67-JV-726-2010 (CP York Nov. 1, 2013).  After review, we affirm the determination that SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption....

Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption.

December 29, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Friday, December 26, 2014

South Dakota legislator suggests using drug war proceeds to fund public defenders

This local article, headlined "Hickey: Use seized drug money for public defender," reports on some notable public advocacy by a public official concerning public defenders in South Dakota.  Here are the details:

A Sioux Falls lawmaker wants to use seized drug money to help pay the legal defense bills of those who can't afford a lawyer, but the state's attorney general says counties should look elsewhere to save money on court-appointed attorney costs.

Rep. Steve Hickey, R-Sioux Falls, says the money in the state's Drug Control Fund is correctly used to tackle the problem of drug use, but he says he worries about the legal costs counties bear after the arrest. The fund is made up of money seized during drug investigations and money from the sale of seized property, such as vehicles.

"My thought is that we should put some of that money not just into catching more bad guys, but put some of it into the cost of defending them we're stuck with afterward," Hickey said. "We get excited about sobriety checkpoints and saturation patrols, but after those tickets get written, someone has to pick up the tab."

Hickey's bill would ask for a more thorough accounting of the money seized by law enforcement from suspected drug dealers and direct between 25 percent and 50 percent of it toward the legal fees amassed by counties. The fund is administered by Attorney General Marty Jackley's Office, which decides where the seized money is spent. "It seems to me that there's very little oversight," Hickey said....

Counties are legally obligated to offer court-appointed lawyers to the indigent. Local governments can ask that legal fees be repaid, but many bills go unpaid, either because defendants don't earn enough or own enough to pay or because they go to prison or jail.

Hickey's proposal comes alongside growing concerns over court-appointed attorney fees in Minnehaha County. Commissioners want judges to consider income guidelines when deciding whether to appoint a public defender, and they've offered a county employee to check defendants' income statements.

The state's largest county has spent $3.8 million on indigent defense this year, but reimbursements from defendants stand at $824,000. The county also has more than $26 million in liens on defendants who haven't paid their bill.

Commissioner Cindy Heiberger hasn't seen Hickey's proposal, but says any discussion about helping the counties that shoulder the burden of legal defense is welcome. "It sounds really good on the surface. Anything we can use to pay for court-appointed attorneys or court costs is something we should talk about," Heiberger said. But, she cautioned, "when we're taking money from one pot and moving it to another, we need to make sure the logistics make sense for everyone."

The notion of using seized drug money to pay for criminal defense doesn't sit well with Attorney General Marty Jackley. The drug control fund consists of money seized from suspected drug sales and other cash collected from auctioning off seized vehicles and other property. "I do not support using the profits of criminals to defend their activities," Jackley said.

The money pays the drug testing bills for cities and counties, Jackley said, and the remaining money is used to buy vehicles, camera systems and other items for local police and sheriff's departments. Giving some of the money to counties for indigent defense could force local agencies to bear the cost of drug testing and reduce the availability of funds for equipment upgrades and replacements.

In 2013, $70,514 was awarded from the drug control fund for law enforcement and prosecution costs in Sioux Falls and Minnehaha County. Overall in 2013, $643,722 was awarded from the drug control fund to local agencies. Drug control money pays an average of $60,000 per month to local law enforcement for drug testing, according to DCI records.

December 26, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, December 24, 2014

"Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction, 2009-2014"

States-rethink-collateral-consequences-infographic-v3The title of this post is the title of this notable new report from The Vera Institute of Justice. Here are excerpts from the report's summary:

Collateral consequences of criminal convictions are legion and present significant and often insurmountable barriers to housing, public benefits, employment, and even certain civil rights (e.g., voting rights) for people with criminal histories well after sentence completion.

Lessening the burden of post-punishment penalties has become a matter of significant bipartisan state-level legislative activity in recent years.  In this report, Vera’s Center on Sentencing and Corrections provides (1) concise summaries of representative legislation, (2) an analysis of the limitations of current reforms, and (3) recommendations for making future efforts sustainable and comprehensive.

Since 2009, forty-one states and the District of Columbia, enacted 155 pieces of legislation to mitigate collateral consequences for people with certain criminal convictions.  In reviewing this legislative activity, Vera found that states have pursed one or a combination of seven broad approaches to reform.  They created or expanded expungement and sealing remedies; issued certificates of recovery; allowed for offense downgrades; built relief into the criminal justice process; ameliorated employment-related collateral consequences; improved access to information; and addressed discrete collateral consequences.

While efforts to remove or alleviate the impact of collateral consequences may indicate a broader shift in how the criminal justice system views law-breakers, vast numbers of post-punishment penalties remain in place and a closer look at recent legislation suggests that efforts do not go far enough.  In particular:

  • Reforms are narrow in scope;
  • Relief mechanisms are not easily accessible;
  • Waiting periods are long in many cases; and
  • New rules restricting third-party use of criminal history are difficult to enforce.

December 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, December 23, 2014

Is US Rep. Grimm likely to advocate for federal sentencing reform following his felony plea?

The question in the title of this post is my first thought after reading this interesting Reuters story in the wake of a high-profile federal tax fraud plea entered today.  The piece is headlined "U.S. Representative Grimm says will not resign after pleading guilty to tax fraud," and here are details:

U.S. Representative Michael Grimm of New York said he would not resign from Congress following his guilty plea on Tuesday to a federal felony tax charge.  "As long as I'm able to serve, I'm going to," said Grimm, who noted he easily won a third term in November despite a 20-count federal indictment unveiled in April.

Grimm, a Republican, pleaded guilty in Brooklyn federal court to aiding the preparation of a false tax return in connection with a health food restaurant, Healthalicious, that he co-owned before his political career.  "While operating a restaurant, we underestimated the gross receipts and used some of the money to pay employees off the books and some other expenses," Grimm said in court.

As part of a plea deal, Grimm, whose trial had been scheduled for February, also signed a statement of facts, admitting to concealing over $900,000 in gross receipts from 2007 to 2010 and lying during a 2013 deposition....

A Boehner spokesman said he would not comment until he has discussed the issue with Grimm. Grimm told reporters he has had "private discussions" with leadership but would not elaborate.

The 44-year-old former Marine and FBI agent, who represents Staten Island and parts of Brooklyn in New York City, faces a maximum of three years in prison when he is sentenced on June 8.  His lawyers indicated they would seek a more lenient sentence.

Grimm told reporters he was accepting responsibility for a "mistake" that occurred before he joined Congress.  "For the past four years, I've been a very effective, strong member of Congress," he said, adding that he had received many words of support from his constituents.

House members who plead guilty to a crime that carries two or more years in prison "should" refrain from voting on the floor or participating in committee business, according to House rules.  The House could also vote to reprimand, censure or even expel Grimm, as it did in the case of Democratic Representative James Traficant, who was found guilty of taking bribes and other crimes in 2002 but refused to resign.

Prosecutors had accused Grimm of hiring illegal immigrants, paying staffers under the table and under-reporting how much he spent in wages.  He was also charged with lying under oath about his practices while defending against a lawsuit brought by former Healthalicious employees.

The indictment grew out of a probe of Grimm's fundraising, morphing into one of the highest-profile prosecutions by the office of Brooklyn U.S. Attorney Loretta Lynch, who has since been nominated to become U.S. attorney general.  Lynch in a statement said the plea made clear that U.S. authorities "will vigorously investigate and prosecute fraud wherever we find it, and that no one is above the law."

Given that the last three US Presidents have all admitted violating federal drug laws and have all been (reasonably?) accused of violating many more federal laws, I am moved by Rep Grimm's claims that his admission of violating federal tax laws in the past should not require him to give up his current job making new laws.  Moreover, as the title of this post hints, I think there could be real value in having a member of Congress with personal experience with the federal criminal justice system as a defendant.

December 23, 2014 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, December 16, 2014

Should problematic police be on a registry like sex offenders?

The provocative question in the title of this post is drawn from this provocative new commentary by Ed Krayewski at Reason titled "Time for a Police Offenders Registry." Here are excerpts:

There's a moral obligation to keep bad cops off the streets.  A job with a police department is not a right and shouldn't be treated like one. Police unions that push for permissive rules that end up protecting bad cops pose a serious public safety threat. Nevertheless, dismantling them where they've taken root is a difficult prospect even in the long-term. There are other ways to keep bad cops off the streets. The federal government, and state governments, ought to create and encourage the use of a police offender registry list.  Such a list would register individuals who while employed as law enforcement officers were found unfit for duty or faced serious disciplinary issues they may have resigned to avoid. Just as any other component of comprehensive police reform, this won't eliminate excessive police violence, but it's a start.

When actually identified, a surprising (or not) number of officers involved in controversial, high-profile use of force incidents have previously disciplinary history.  Officer Daniel Pantaleo, the New York City cop who put Eric Garner in a fatal chokehold, had been previously accused, at least twice, of racially-motivated misconduct, including strip searching a man in the middle of the street and allegedly hitting his testicles.  The police union in New York City is among the strongest in the country.  When a rookie cop shot Akai Gurley in apparent panic last month, he didn't think twice to reportedly contact his union rep first. A man lay dying in a stairwell for no other reason that he startled a rookie, and the fact that the officer called his union representative before calling for assistance isn't shocking enough to lead to the officer's termination.  Even if it were, it would still be impossible to terminate the officer immediately.  While all this is happening, the state of New York is on the verge of placing even more of the disciplinary regime that applies to cops under the purview of the police unions.

But not everywhere is the situation as hopeless as in New York City.  In other parts of the country, cops can get fired relatively more easily.  But it doesn't stop them from finding jobs elsewhere.  Richard Combs, who was the sheriff and only cop in Eutawville, South Carolina, is now facing a murder charge for shooting a resident after an argument at Town Hall, but Combs had been previously terminated from the county sheriff's office for unspecified "unsatisfactory performance."  In Cleveland, Ohio, the cop who shot 12-year-old Tamir Rice, mistaking the boy's toy gun for a real one, had been previously found too emotionally unstable and unfit to carry a firearm for law enforcement.  In Georgia, the cop who shot and killed 17-year-old Christopher Roupe after the teen opened the door to his home holding a Wii controller, had been previously fired for multiple disciplinary problems including shooting at an unarmed person....

This is just a sampling of stories that received enough local attention to gain some prominence.  The situation is unconscionable.  Police found unfit for duty in one jurisdiction shouldn't be employed in another.  Cops who resign to avoid disciplinary charges shouldn't slither their way into another department.  Cops who cost taxpayers millions in lawsuit settlements shouldn't be able to expose taxpayers in other places to the same risk....

State governments, and the federal government, can help.  Sex offender registries, which in some jurisdictions can lead to 19-year-olds who receive sexts from their 17-year-old friends being branded sexual predators for life, are an odious thing that makes a mockery of due process and the idea of the penal system as rehabilitation.  But for some of the same reasons they would work to police the privilege of employment in law enforcement. Constitutionally, the federal government could not mandate states use its police offender registry list or operate their own.  Yet because many of the most troublesome police departments (those in big cities and those in the sticks) also rely most on federal assistance in one way or another, the feds could induce compliance by tying it to such assistance.  The federal government has done this before, though usually to push states to impose certain laws on its residents, not to protect residents from abusive government employees. Such a list wouldn't be a comprehensive solution to excessive police violence, but it's an important part, one that could work to lower the number of bad cops operating on the streets and begin to rebuild trust between police and the communities they're supposed to serve. 

December 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Tuesday, December 09, 2014

Lots more notable new posts at Collateral Consequences Resource Center

Last week I noted in this post all the notable posts appearing at the Collateral Consequences Resource Center.  Just a week later, I see again that te CCRC has lots of new content on a bunch of issues not too often discussed in other like fora, such as these recent postings that seemed worth highlighting:

December 9, 2014 in Collateral consequences, Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Sunday, December 07, 2014

Two astute commentaries about California's emerging Prop 47 issues

0Two local California paper have two distinct commentaries about Proposition 47 and its aftermath. Both are worth reading, and here are links and excerpts from the start and end of each piece:

Opinion by Alexandra Natapoff, headlined "Prop 47 empties prisons but opens a can of worms":

California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.

The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”

There are a lot of great things about decriminalization. But it has a surprisingly punitive and racially charged dark side, and it doesn’t always work the way people think it does. The “non-jailable misdemeanor” — popular in many states — is still a crime that triggers arrest, probation and fines, criminal records and other collateral consequences. Even the gold standard of decriminalization — the “non-arrestable” civil infraction — can derail a defendant’s employment, education and immigration status, while the failure to pay noncriminal fines can lead to contempt citations and incarceration. And while decriminalization sounds egalitarian — after all, it’s a promise not to lock up people who would usually get locked up — sometimes it might actually make things worse for the poor and people of color....

It’s often hard to tell whether criminal justice reform is real progress or a shell game. Is California actually reducing incarceration, or is it quietly shifting prisoners around or repackaging punishment so as to avoid appointing lawyers for poor people? Decriminalization offers great promise, but it needs to be carefully monitored to make sure it lives up to its tantalizing name.

Editorial by Los Angeles Daily News, headlined "Prop. 47 sentencing changes are working out just as feared":

The saga of Proposition 47 and its troublesome implications is a crime story in which everybody left fingerprints except the real villains. The villains are California legislators, who kept their hands off the crucial challenge of criminal sentencing reform despite the need to address the state’s big problems with prison overcrowding and overly harsh policies that favor punishment over rehabilitation.

With lawmakers unwilling or unable to touch the issue, advocates picked it up and handed over the complex topic of sentencing reform to the public in the form of last month’s ballot initiative. Voters were asked to say yes or no to reducing felony sentences to misdemeanor penalties for many drug-possession and other criminal convictions.

The well-intended but dangerously flawed Prop. 47 passed easily with 59 percent of the vote. Now state and local legal authorities, including those in Los Angeles and San Bernardino counties, are having to confront the consequences....

In Humboldt County, the release of 35 percent of the county jail population has been accompanied by a reported rise in burglaries, thefts and vandalism. If that becomes a state trend, so much for Prop. 47 supporters’ title for the measure: The Safe Neighborhood and Schools Act.

It’s possible Prop. 47’s troubles can be worked out and it will achieve its goals. When FiveThirtyEight.com’s data journalists analyzed outcomes in states that have undertaken similar sentencing reforms, they found more positive than negative results at reducing prison populations and incarceration costs.

But the results in California will bear watching. Gov. Jerry Brown, who had planned to issue prison-reform proposals in January, other state officials and legislators must be ready and willing to act to make this work. Of course, if lawmakers had been willing to tackle the issue earlier, we wouldn’t be in this situation now.

December 7, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, December 03, 2014

Some notable new postings at the Collateral Consequences Resource Center

Busy with end-of-semester activities at the end of a busy semester, I have not been able to keep up lately with my usual review of significant postings from the various websites and blogs linked in my sidebars.  But I have still made sure to keep up a "new kid" on the cyber-block, the Collateral Consequences Resource Center, because it covers a bunch of issues not too often discussed in other like fora.  And these recent postings seemed especially worth highlighting:

December 3, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0) | TrackBack