Saturday, June 14, 2014
Ohio legislature wisely considering move to make ignition locks mandatory for DUI offenders
Though I often advocate against lengthy federal mandatory minimum prison terms, I am not categorically opposed to legislative sentencing mandates when there is good reason to believe that the particulars of the mandate will likely save lives and have a limited impact on human liberty and the pursuit of happiness. Consequently, I was very pleased to see this story in my local paper today, headlined "All drunken drivers may be subject to safeguard," discussing a proposal in Ohio to make ignition locks mandatory for all drunk driving offenders. Here are the details:
Ohio lawmakers are considering requiring first-time drunken-driving offenders to have an ignition breathalyzer installed on their cars to confirm their sobriety during a six-month penalty period. The law now allows judges to order the ignition interlocks, but the House bill would make their use mandatory. Offenders convicted twice within six years must use the devices.
The bill sponsor, Rep. Terry Johnson, R-McDermott, cites federal figures that ignition-interlock devices reduce DUI re-arrest rates by 67 percent. About 25,000 first-time offenders are convicted each year in Ohio. The devices would replace a system in which first-time DUI offenders are not allowed to drive for 15 days and then can obtain limited driving privileges to travel to work, school and medical appointments.
“There is nothing to ensure compliance and nothing to ensure sobriety unless they happen to get caught again,” Johnson said. “This allows the offender to continue working and to minimize disruption to his life while ensuring public safety to the extent we are reasonably able to do so.”
A change in the bill last week also would require those charged with DUI but convicted of lesser offenses, such as physical control of a vehicle while intoxicated, to install the machines in their cars....
Only about 5,000 Ohioans, including repeat DUI offenders, are required each year to use ignition interlocks, said Doug Scoles, executive director of Ohio MADD. Twenty states now require their use by first-time offenders. “Requiring the use of ignition interlocks for all convicted drunk drivers will help prevent repeat offenses and, in so doing, save lives,” Scoles said.
The State Highway Patrol reports 341 people died in drunken-driving crashes last year. Seventy-seven people have been killed so far this year, 38 fewer that at the same time in 2012.
The bill is dubbed “Annie’s Law” in memory of Chillicothe lawyer Annie Rooney, who was killed last year by a drunken driver now serving eight years in prison. Her family has campaigned for passage of the bill. Lara Baker-Morrish, chief prosecutor for the city of Columbus, calls the legislation “a very good idea.”
“It does curb the behavior we’re trying to get at, and it has been proven to save lives,” she said. Courts would have to find ways to monitor the increase in ignition-interlock reports on drivers and find funding to ensure devices are made available to those who can’t afford installation and monitoring, she said.
I hope my old pal Bill Otis is heartened to hear of my support for a legislative sentencing mandate. I also hope those who advocate forcefully for rigid forms of gun control and for drug control recognize that that drunk drivers often pose a greater threat to innocent lives and the pursuit of happiness than even drunk gun owners or heroin dealers and that clever technologies, rather than crude prohibitions, may be the most politically wise and practically workable means to reduce these threats.
June 14, 2014 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, June 10, 2014
Intriguing new report on "Compensating Victims of Crime"
The folks at Justice Fellowship have just released an interesting new report titled simply "Compensating Victims of Crime" as part of its advocacy for restorative justice programming. This report's Executive Summary includes these passages:
Restorative Justice recognizes that crime harms people. Though most people affected by crime are never able to fully reclaim what was taken, victim compensation funds are a tool used within our criminal justice system to advance the much needed value of assisting victims and survivors of crime. Unfortunately, very little of the billions of dollars placed within these funds goes directly to victims and survivors of crime. This report is an extensive overview of victim compensation funds and highlights some concerns and provides some suggestions for reform.
Victim compensation funds are funded by criminal fines and taxpayer dollars and offer monetary assistance to victims and survivors of violent crime. Though similar in concept to restitution, they differ in eligibility requirements, funding sources, and distribution. Currently, victim compensation funds only provide monetary assistance to a small number of victims and survivors of violent crime. Of the approximately 7 million victims of violent crime per year, only 200,000 receive assistance from a compensation fund. Even more disturbing is the ratio of money spent on compensation compared to that which is spent on corrections. In 2012, federal, state, and local governments spent approximately $85 billion on corrections. In the same year, victim compensation funds paid out approximately $500 million dollars—less than 1% of what was spent on corrections.
This disparity cannot be blamed on a lack of funds. The Crime Victims Fund — a hybrid system funded jointly by federal and state dollars, but administered at the state level —currently retains a balance of almost $11 billion, while some states have additional balances that approach $10 million. Congress, however, has capped the total annual Crime Victims Fund spending at $745 million dollars despite the large pool of victims who are eligible to receive funds. Further, the average maximum amount that victims and survivors can receive from a victim compensation fund is $26,000.
Because victim compensation funds are administered on the state level, states differ in the eligibility requirements. All states compensate for medical expenses, mental health counseling, lost wages, funeral costs, and travel. Many states compensate for crime scene cleanup, attorney fees, rehabilitation, replacement services, and relocation services. Few states compensate for things like pain and suffering, property loss, stolen cash, transportation, return of an abducted child, guide dog expenses, domestic services, home healthcare, and forensic exams in sexual assaults.
Unfortunately, many victims do not receive any compensation. This often occurs simply due to a lack of knowledge about the compensation fund. However, there are numerous other reasons, including the fact that there are fairly stringent requirements that one must satisfy to receive funds. Half of all states require victims or survivors to report the crime to law enforcement within 72 hours. 12 states require a police report to be filed within 5 to 10 days. A majority of the states require victims and survivors to file a compensation claim within one to two years, and several states restrict compensation to victims who have a prior felony conviction in the last 10 years. While these requirements may not seem stringent at first glance, consider that many crimes are not ever reported for fear of retribution, continued victimization, or the stigma that comes with being a victim. Forty-two percent of victims do not report serious violent crimes to law enforcement officials. As a result, they are denied access to compensation funds....
The system currently in place can be vastly improved. The federal cap on the dispensing of funds should be raised to $1 billion. Awareness of these funds must be increased through additional community infrastructure and advocacy. Overly restrictive requirements must be relaxed so that people have a chance to qualify for compensation once they know it is available. Finally, stringent oversight and transparency of state funds for victims is necessary to ensure that the money is being used properly. Increasing awareness, access, and availability of compensation funds will prioritize victims and survivors in the criminal justice system and advance the values of restorative justice.
The full text of Compensating Victims of Crime is available here.
June 10, 2014 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack
Saturday, June 07, 2014
Highlighting challenges when alternatives to incarceration become state priorities
The front-page of my own Columbus Dispatch has this interesting article about the Ohio's sentencing reform efforts and the challenges posed by a troublesome offender for a sentencing system that now seeks to emphasize alternatives to incarceration. The article is headlined "Church theft case tests rule on sentencing," and here are excerpts:
Cash Yoakem admitted that he broke into 29 churches and stole pretty much anything he could find — even communion trays — to fuel his drug habit. He has pleaded guilty to 44 counts of breaking and entering, all fifth-degree felonies, and the 26-year-old Chillicothe man will stand before a judge on Thursday and ask for leniency. Ross County Prosecutor Matt Schmidt will seek four years in prison for him instead.
Schmidt says that if any thief deserves to go to prison, it is Yoakem, who robbed from some of the churches more than once: “He broke into, damaged and stole from places of worship that many in this community consider sacred, thereby damaging their sense of sanctity.”
But under Ohio’s revamped criminal-sentencing laws, Yoakem doesn’t qualify for prison. Probation, yes, or a community-based therapeutic program, but he doesn’t meet the state’s latest criteria for prison for low-level, nonviolent, first-time offenders. Schmidt and Yoakem’s attorney each say this case sets the stage for what could be the first real test of the constitutionality of Ohio’s sweeping criminal-sentencing reforms that took shape in 2011.
At issue is a provision of the law that says that if a court cannot find a suitable sanction for a defendant who does not qualify for prison under the new guidelines, the judge can ask the Ohio Department of Rehabilitation and Correction to make a suggestion as to what local programs are available. The department then can either make a recommendation — which the judge is bound by law to follow — or say it doesn’t have a suggestion, in which case the judge then can send that person to prison if he chooses.
State records show that since the reforms took place, judges in 11 counties have sought a state recommendation a total of 27 times; 12 defendants went to prison as a result and 15 got probation. In Yoakem’s case, the Ross County Common Pleas Court asked for such a recommendation and the state gave none. As a result, it is expected that Judge Scott Nusbaum will sentence Yoakem to prison when he’s due in court on Thursday.
Some judges and prosecutors have long complained about this provision of the sentencing reform. Because one goal of the legislature when it enacted the changes was to see fewer people go to prison, defense attorneys have hailed the changes as positive. In this case, however, it is the defense attorney challenging the constitutionality of the law.
James Szorady, an assistant state public defender and Yoakem’s attorney, said the state prisons department’s involvement is a clear violation of the constitutional requirement for a separation of powers by the legislative, executive and judicial branches of government. “My argument is that the department is now holding sway over the court,” Szorady said. In his sentencing memo to the judge, he writes: “This is clear co-mingling of government branches ... and it is unconstitutional beyond a reasonable doubt.”
State Sen. Bill Seitz, a Cincinnati Republican who was instrumental in writing the changes, said there’s nothing unconstitutional about it because the Department of Rehabilitation and Correction is taking only an advisory role....
The Ohio Judicial Conference, a judges’ association created by state law, opposed this part of the sentencing reform since its inception and has asked the legislature several times to remove it because it’s a clear conflict, said Mark R. Schweikert, executive director of conference. “Frankly, I’m surprised a case hasn’t yet made it to the Ohio Supreme Court,” he said.
Schmidt said he thinks this is exactly where this one will end up. He said the reforms have hampered prosecutors and judges in their ability to punish certain offenders properly, simply to save the state money on housing prisoners, and this case is the best illustration of that so far.
“I’ve been beyond frustrated,” Schmidt said. “The sentencing reforms are not solving crimes and not rehabilitating people. They’re just making it harder to punish people, which is part of what a criminal sentence is about.”
Thursday, May 29, 2014
Report on how Chicago makes it nearly impossible for some sex offenders to register
A helpful reader alerted me to this notable local report from Chicago headlined "Chicago police fail to register sex offenders 601 times in just three months." Here is how the story starts:
On February 13 of this year, Bruce Harley went to the Chicago Police Department Headquarters to register as a sex offender. He was one of 22 people who were turned away that day because the office was simply too busy. That’s according to police records. A month later, on March 21, Bruce Harley was approached by Chicago police officers on the West Side of Chicago.
According to an arrest report, Harley wasn’t doing anything illegal but was “loitering in an area known for narcotic activity.” Officers ran Harley’s name and found he had failed to register. Harley told the officers he had tried to register on February 13 but had been turned away. He was arrested anyway and is now in the Cook County Jail, where it costs taxpayers $52,000 a year to house him.
I first heard about sex offenders being prevented from registering a few months ago. I spent several days waiting in line with offenders outside the criminal registration office at Chicago police headquarters. I couldn’t believe it when officers came out of the office and told dozens of men who had been waiting for hours that they might as well go home because the office was too busy to register them all. Then the officers warned the men that they could be arrested for failing to register even though they’d just waited for hours in line to do just that.
I went back several times and saw the same scenario play out.
Monday, May 26, 2014
California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges
The Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California. The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts:
When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.
With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."
That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.
The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")
The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."
The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.
Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.
Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.
Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."
A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.
Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....
Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.
He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.
He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.
Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)
Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...
Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program. The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....
Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said. He has two. But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.
Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined. So "they should please leave us alone and let local enforcement tackle our own marijuana problems."
Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.
I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.
Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.
Cross-posted at Marijuana Law, Policy and Reform
May 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
"Is public shaming fair punishment?"
The title of this post is the headline of this recent Los Angeles Times commentary by Patt Morrison on an alternative punishment topic I always find interesting. Here are excerpts:
You play the judge: How would you sentence a man who spent 15 years picking on his neighbor and her handicapped children? A Cleveland judge sentenced just such a man, Edmond Aviv, to jail, community service, anger management and mental health counseling — and to spend five hours alongside a busy street on a Sunday in April with a great big sign branding him an intolerant bully.
The 8th Amendment bans cruel and unusual punishment. Is this either one? Or can justice be fairly meted out in something other than years and months behind bars?
In 2012, a different Cleveland judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: "Only an idiot would drive on the sidewalk to avoid a school bus." The woman chose to hold the sign.
Puritan punishments like locking someone's head and hands in the stocks seem like retribution, not justice. In "The Scarlet Letter," Hester Prynne, was an adulterer, not a thief. Puritans believed in shame as a behavior corrector. But Prynne flaunted and even co-opted the "A" she was condemned to wear.
Should shame be a component of punishment? Does taking someone down a peg set a miscreant straight, any more than locking him up? And should it be at a judge's discretion?...
Judges have sentenced a La Habra slumlord to live in his own run-down building under house arrest for two months, and made an Ohio woman who abandoned 33 kittens spend a night alone in the woods. In a case that made the legal textbooks and withstood appeal in 2005, a San Francisco mail thief was ordered to stand on the post office steps with a sign that read: "I stole mail and this is my punishment."
It's hard to track the deterrent effect of such creative punishments because they happen so rarely. And judges have so much power and discretion that creative sentencing could mean wildly and unfairly different punishments for the same crime between one courtroom and the next — one reason that sentencing guidelines and laws exist in the first place.
Daniel Markel, the D'Alemberte professor of law at Florida State University and an expert on sentencing, points out that if these punishments didn't have some efficacy, "there probably wouldn't be much resistance" from miscreants, but "in fact defendants typically don't want to be publicly shamed because they realize there is something publicly humiliating about being exposed in the streets."...
The element of choice that comes up in some kinds of creative sentencing might also give us pause. In California and elsewhere, convicted sex offenders have requested castration — chemical and actual — to get out of prison. Civil libertarians object on "cruel and unusual" constitutional grounds, because it amounts to no choice, and because it gets dangerously close to the medieval notion of cutting off a thief's hands. Markel adds another objection to asking the guilty to pick their poison: "We punish to communicate censure and condemnation. It's for a democracy to make those decisions. We ought not empower defendants to be deciding their punishments."
Edmond Aviv apparently wasn't given a choice. Will public humiliation change his behavior? He had been convicted of harassment before, so it's hard to fault the judge for trying something different. And even though we don't live in Hester Prynne's world anymore, I'll cautiously side with the slice of democracy that told a Cleveland.com reporter they approved the sentence. After all, it "communicated censure and condemnation." In this case, it seems, a bad guy got his just deserts.
A few recent and lots of older posts on shaming sentences:
- Another notable (and astute?) local shaming sentence for elderly bully
- A shameful suggestion for how to make NYC roads and walkways safer
- New commentary calls "creative" shaming punishments "terrible" (on curious grounds)
- Public shaming instead of incarceration in Pennsylvania theft case
- Shaming t-shirts ordered as part of community service sentence
- What punishments really undermine human dignity?
- Shaming punishments and communitarianism
- A proper case for shaming?
- New article on shaming sanctions
- More shame, shame on you
- The state of shaming punishments (with lots of links)
Friday, May 23, 2014
"Treating Prisoners With Dignity Can Reduce Crime"
The title of this post is the headline of this notable new National Journal commentary authored by Nicholas Turner and John Wetzel. The piece's subheadline is "In Europe, prisoners work for real wages and even cook for themselves. And when they leave prison, they don't come back." And here are excerpts:
It sounds like the first line of a joke: "Three state corrections teams and some experts who are old hands at visiting prisons go to meet their warden counterparts in Germany and the Netherlands in mid-January to see what they could learn."
But it's a true story — and what high-level delegations from Colorado, Georgia, and Pennsylvania learned through the Vera Institute of Justice's European-American Prison Project is no laughing matter. What we learned, in fact, has serious and timely boots-on-the-ground implications....
For those of us who visited Germany and The Netherlands, the approach to sentencing and the prison philosophy we saw astonished and inspired us. Not only are far fewer people imprisoned, but even those who have committed serious violent crimes serve far shorter sentences.
In these European countries, prisons are organized around the belief that, since virtually all prisoners will return to their communities, it is better to approach their incarceration with conditions as close to "normal" as possible — with the addition of treatment, behavioral interventions, skills training, and needed education — and to remove them from communities for the shortest possible time so that institutional life does not become their norm.
Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. Inmates have privacy — correctional officers knock before entering — they wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid for work that they do, and have opportunities to visit family, learn skills, and gain education. Inmates are required to save money to ensure that they are not penniless upon release. There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals — to be part of a "therapeutic culture" between staff and offenders, and consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other "dangerous" implements. And their maximum time in any kind of punitive solitary is eight hours.
Prison policies grounded in the belief that prisoners should be treated with dignity were startlingly effective — and have eminently pragmatic implications here at home. The adverse social and economic outcomes for former prisoners in the U.S. are severe — and they are concentrated in communities that are already struggling mightily. With 95 percent of our nation's incarcerated individuals eventually returning home from prison — and 40 percent going right back to prison within three years — we would do well to heed the strategies used in these nations to teach prisoners how to be good and productive citizens that can rebuild their communities....
Are there challenges to wholesale reform? Of course. Money. Infrastructure. Strains of racial division borne of our history and heterogeneity. And, cultural differences especially as relates to violence may mean that some European practices may not translate smoothly to the U.S. Yet we are at a moment of potential for significant shifts. It will require legislation and policy change, including rethinking sentencing for lower offenses and reducing the time for those who must be in prison. But the notion that we should strive to create an environment within our prisons conducive to our goal — to return good citizens to our communities — is a challenge we can and must meet.
Tuesday, May 20, 2014
"Save money, reduce crime: Alternative sentencing works, so Ohio needs to do more of it"
The title of this post is the headline of this notable lead editorial appearing in today's Columbus Dispatch. The Dispatch has a reputation as a pretty conservative paper (e.g., it has endorsed only GOP Prez candidates for nearly a century), so I see this editorial as further significant proof that more and more traditional conservative voices are seeing the value of (and now actively making the case for) sentencing and prison reforms. Here are excerpts from this editorial:
Ohio has made progress in easing prison crowding by offering alternatives for nonviolent offenders. But a look at the numbers shows that more can be done. The good news is, Ohio already knows what works: putting nonviolent felons in programs that make them better prepared to lead crime-free lives rather than in expensive prisons with hardened criminals. The challenge is to find the resources for the up-front investment.
Alternative-sentencing programs, such as the 18 community-based correction facilities and other programs based on drug-and-alcohol treatment and life-skills training, have a record of reducing recidivism. But the state hasn’t invested in them equally across the state, according to Ohio Division of Rehabilitation and Correction Director Gary C. Mohr....
A proposal contained in one of the mid-biennium budget-review bills would provide about $13 million to add 400 to 500 community-facility beds across the state. Because stays in such programs typically are three months, each of those beds could allow three people per year to get help and treatment rather than a prison stay. That saves taxpayers money and increases the chance that the offender will go on to a productive life — a double win.
As Ohio’s prisons grow more crowded and potentially more dangerous, the need for more alternatives becomes clearer. One in every 175 Ohio adults is in a state prison, and with nearly 51,000 inmates, the system has 30 percent more than it was designed for. Considering that each of those inmates costs taxpayers nearly $23,000 a year and that a large number are low-level, nonviolent offenders, it’s an expensive way to deal with societal problems.
A change to state sentencing law in 2011 aimed to ease the burden by steering more nonviolent offenders to community-based correction programs. The largest counties responded, and two years ago the prison population seemed to be on the decline. But Ohio’s wave of heroin and other opiate addictions, combined with too few alternative-treatment options, have swelled the prison population again.... But Mohr now finds himself with a new peak population and no reduction in sight unless the state invests more in alternatives.
Legislators should take note of the successful track record of alternative correction and steer available funds in that direction. Ohio won’t benefit from more prisons; putting low-level criminals in prison is a lousy business model with a poor return on investment. Spending less to provide the type of supportive correction that can turn around lives is a much smarter proposition. And it saves prison beds for those who pose the greatest threat to society.
Recent related post:
Thursday, May 08, 2014
Fascinating discussion of "mom movement" to reform sex offender registration laws
NBC News has this lengthy new piece about efforts to reform sex offender registration laws under the headline "My Son, the Sex Offender: One Mother's Mission to Fight the Law." The full piece is worthy of a full read, and here is how it gets started:
In the run up to Halloween one year, Sharie Keil saw something that really made her jump: Missouri governor Jay Nixon, then the attorney general. He was on television to announce that registered sex offenders were hereby banned from participating in her favorite holiday. On threat of a year in jail, they had to stay inside and display a sign saying they had no candy. The goal was “to protect our children,” as Nixon put it, but Keil heard only a peal of political hysteria.
She is not a sex offender nor, at 63, a new-age apologist for pedophiles or predators. She is a mother, however, and in 1998 her 17-year-old son had sex with a pre-teen girl at a party. He was convicted of aggravated sexual abuse, which got him six months in county jail and a lifetime of mandatory registration as a sex offender. Ten years later, after the Halloween law, Keil felt shocked into action.
”As my husband says, I decided to go on the war path,” she remembers. Today, she’s at the forefront of a growing fight against sex offender registries, a shame-free alliance of offenders and their families, supported by researchers and some advocates who helped pass stringent anti-abuse laws in the first place. They’re organized (albeit loosely) under Reform Sex Offender Laws, a five-year-old lobby that claims 38 state affiliates and a steady patter of legal and legislative victories.
Most of their progress, however, has been limited to a slice of the registry: juvenile offenders. That would remove Keil’s son, but this former soccer mom and chapter head of the League of Women Voters wants to abolish the public registry altogether. She funds a powerful RSOL affiliate, Missouri Citizens for Reform, which has helped push sweeping changes through the Missouri House four years in a row, only to see the effort smothered in the Senate or, last summer, stabbed by a governor’s veto.
“Changing the registry would provide relief for tens of thousands of Missourians,” Keil says. “Since there are nearly 800,000 people on the registry nationally, millions of lives would change for the better.”
As reckless as Keil’s ideas may sound, she and her intellectual allies—among them Nicole Pittman, an attorney who slammed registries in a Human Rights Watch report last year—are fervently opposed to sexual abuse and believe in jail time for law breakers. However, they also hope to realign the law with second-chance ideals and new research that shows rehabilitation is possible, even for America’s last pariahs.
If they succeed, Keil believes, public safety will actually improve. As the registries shrink or disappear, law enforcement will be freed to focus on crime prevention. If the movement fails, she warns, public safety could suffer. Truly dangerous people will be lost in the thousands that police must monitor, while relatively harmless offenders break bad in a system that gives them no hope for a normal future.
Monday, May 05, 2014
Detailing notable legal challenge to juve sex offender registration requirements
The AP has this notable new article headlined simply "Juvenile Sex-offender Registries are Challenged." Here are excerpts:
By the time he was arrested for sexually assaulting two siblings, 15-year-old J.B. had been molested by his alcoholic father and subjected to 25 moves among his birth, foster and adoptive families. He had also suffered from untreated attention deficit hyperactivity disorder and depression.
Though tried in juvenile court, with its focus on privacy and rehabilitation, he was later required by a 2012 Pennsylvania law to register as a sex offender — branded a long-term danger to society, with no way off the list for at least 25 years. Juvenile law advocates campaigning against such automatic registries argue that they undermine the rehabilitative purpose of juvenile law and wrongly force judges to treat offenders the same, no matter their circumstances. In Pennsylvania, local judges increasingly agree with them.
Late last year, a central Pennsylvania judge weighing the cases of J.B., as he is known in court documents, and six others found the registration law violated the state constitution. Now the issue is headed to the state high court.... In the Pennsylvania Supreme Court on Tuesday, juvenile advocates will argue that the registration requirement amounts to cruel and unusual punishment and creates roadblocks for young people trying to rebuild their lives.
Across the country, a growing number of juvenile judges, advocates and policymakers are questioning the effect of the registration mandate Congress passed under the 2006 Adam Walsh Act, named after the Florida boy abducted and killed in 1981. States that don't comply risk losing millions in federal law enforcement grants. A few states, including Texas and California, decided it was cheaper to opt out of the Walsh Act, and the Ohio Supreme Court has since found the juvenile registry unconstitutional....
Prosecutors in York County defend the law. "The standards are not meant to be easy," said Tim Barker, the chief deputy district attorney. "They were created with an eye toward the protection of the public." Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorneys Association, said the law was forced on states by the funding tie-in. But he said he believes the mandate is appropriate in the most serious cases, including one in his county in which a teen raised amid violent pornography assaulted a 3-year-old neighbor....
The Philadelphia-based Juvenile Law Center, which successfully argued J.B.'s case, believes judges need the authority to fashion what they deem appropriate placement and treatment plans. "That's very separate and distinct from saying we're going to put a scarlet `A' on these kids for the rest of their lives," said Marsha Levick, the center's chief counsel.
Recent reports by Human Rights Watch and the Illinois Juvenile Justice Commission — both critical of juvenile registries — found that children lash out sexually for different reasons than adults and are less likely to reoffend. One survey involving about 11,000 young offenders put the recidivism rate at 7 percent, compared with 13 percent for adult sex offenders, according to the Human Rights Watch report.
Nearly all other states compile some sort of registry, although 11 states do so only if the juveniles are tried in adult court. Pennsylvania's law applies to teens 14 to 17 accused of rape, aggravated sexual assault and other serious sex crimes. In practice, though, lesser pleas are often being negotiated to avoid triggering the reporting mandate, prosecutors and defense attorneys said.
Some related posts:
- State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional
- Ohio Supreme Court finds required juve sex offender registration unconstitutional on numerous grounds
- New big Human Rights Watch report assails placing juve sex offenders on registries
- Missouri Gov vetoes bill to take juve sex offenders off state registry
- Illinois commission advocates against putting all juve sex offenders on registry
SCOTUS unanimously rejects defendant's effort to reduce restitution owing under MVRA
The Supreme Court handed down a unanimous ruling in a restitution case this morning. Here is how the opinion for the Court in Robers v. US, No. 12-9012 (S. Ct. May 4) (available here), gets started:
The Mandatory Victims Restitution Act of 1996 requires certain offenders to restore property lost by their victims as a result of the crime. 18 U. S. C. §3663A. A provision in the statue says that, when return of the property lost by the victim is “impossible, impracticable, or inadequate,” the offender must pay the victim “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.” § 3663A(b)(1)(B). The question before us is whether “any part of the property” is “returned” when a victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim.
We hold that it is not. In our view, the statutory phrase “any part of the property” refers only to the specific property lost by a victim, which, in the case of a fraudulently obtained loan, is the money lent. Therefore, no “part of the property” is “returned” to the victim until the collateral is sold and the victim receives money from the sale. The import of our holding is that a sentencing court must reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it.
Friday, May 02, 2014
"Kids, Cops, and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis"
The title of this post is the title of this interesting paper newly posted on SSRN and authored by David Singleton. Here is the abstract:
Sex offenders are today’s pariahs — despised by all, embraced by none. During the past twenty years, society’s dislike and fear of sex offenders has resulted in a flood of legislation designed to protect communities from them. These laws include residency restrictions, which bar convicted sex offenders from living near places where children are expected to be found. Given this climate, do lawyers who for sex offenders have any hope of winning justice for their clients?
In 2005, the Ohio Justice & Policy Center (“OJPC”) began a three year-advocacy campaign against Ohio’s residency restrictions. At first OJPC lost badly — in both the courts of law and public opinion. But after losing the initial legal challenge, OJPC transformed its seemingly lost cause into a winning effort. It did so by borrowing an idea from Professor Derrick A. Bell.
Professor Bell is famous, among other things, for his interest-convergence thesis. According to Bell, blacks achieve racial equality only when such progress it is in the interests of whites. The classic example of Bell’s theory is his explanation of the Supreme Court’s decision in Brown v. Board of Education. According to Bell, the Court desegregated public schools not for moral reasons but because doing so would improve America’s credibility on racial issues during the Cold War.
OJPC eventually prevailed in its challenges to residency restrictions because it aligned the interests of sex offenders with society’s interests in protecting children from sexual abuse. Not only did OJPC win two important legal challenges but it also transformed the local media narrative about residency restrictions.
Kids, Cops and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis begins by telling the story of OJPC’s advocacy — both before and after employing an interest-convergence strategy. The article then poses and answers three questions: (1) whether it is appropriate to attach the “interest-convergence” label to OJPC’s sex offender advocacy given that Bell’s thesis is “historically descriptive rather than a recommendation for future-oriented strategies,” according to Professor Stephen Feldman, a leading scholar; (2) whether interest-convergence theory explains the victories OJPC won for its clients; and (3) assuming that interest convergence has value as an advocacy tool, whether it potentially presents a downside for the marginalized clients the lawyer seeks to serve. I conclude the article with a discussion of a course I developed called Complex Problem Solving for Lawyers, which teaches law students to incorporate Bell’s interest-convergence theory into advocacy on behalf of despised groups like sex offenders.
May 2, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack
Friday, April 25, 2014
Local California sex offender restrictions legally suspect after California Supreme Court (non)action
As reported in this local article, earlier this week that California Supreme Court "left intact a lower-court ruling that invalidates local ordinances aimed at restricting the movements of registered sex offenders in dozens of cities statewide." Local lawyers say this (non)action is a big deal:
The court’s decision Wednesday not to hear a case involving a Southern California sex offender means city and county ordinances banning such offenders from public parks and other public areas no longer may be enforced, attorneys say. Instead, a state law governing where sex offenders on parole may live now stands as the main restriction.
“If I read the tea leaves correctly, it’s probably dead everywhere in California,” Susan Kang Schroeder, chief of staff to Orange County District Attorney Tony Rackauckas said Thursday.
The Orange County District Attorney’s Office had led the effort to tighten restrictions on sex offenders and advised communities in that area on how to enact such ordinances. “We still believe that we were right on the law and we respectfully disagree,” Schroeder said. “We don’t regret the choices that we made in trying to keep sex offenders out of parks and keep children safe.”
The state Supreme Court’s action stemmed in part from an Orange County case in which a registered sex offender in Irvine went to a tennis court at a public park in violation of a local ordinance. The offender pleaded guilty, but a public defender appealed the case and won a ruling that state law trumps such local ordinances, Schroeder said. Her office appealed that to the 4th District Court of Appeal, which agreed with the appellate decision, so the Orange County District Attorney’s Office asked the state Supreme Court to hear the matter.
That court declined to do so Wednesday. It also declined to hear a second, similar case involving an offender who was cited after going to a picnic at a county park. The move effectively invalidates such local ordinances, Schroeder said, and leaves Jessica’s Law, passed by voters in 2006, as the main enforcement tool over paroled sex offenders. That measure, which also has faced court challenges, prevents sex offenders on parole from living within 2,000 feet of schools and parks.
Santa Maria attorney Janice Bellucci, president of a group called “California Reform Sex Offender Laws,” said the Supreme Court’s move is a “major victory” for efforts to provide more rights for individuals who must register on California’s Megan’s Law list of people with sex offenses in their pasts. “It means that our people on the registry — and we have over 105,000 now — can now go to public and private places that they could not go to before,” she said.
Bellucci has been waging a legal battle against such ordinances throughout the state and last month filed suit in U.S. District Court in Sacramento seeking to overturn a South Lake Tahoe measure. The South Lake Tahoe ordinance prohibits sex offenders from being in or within 300 feet of public or private schools, parks, video arcades, swimming pools or other areas where children might congregate. The ordinance allows for single trips traveling past such spots.
Bellucci said 70 cities and five counties in California have enacted such measures, and she has used a client, Frank Lindsay of San Luis Obispo, a registered sex offender, as the face of her lawsuits against such ordinances.... Bellucci said she views the matter as a “civil rights issue” that ultimately should be addressed by legislators to differentiate between people who made a mistake in their past — such as urinating in public or a young adult having consensual sex with a 17-year-old girlfriend, for example — from predators...
El Dorado County District Attorney Vern Pierson said Thursday that the Legislature has failed to address the need for balanced restrictions, something that may lead to new initiative drives. “This is more than anything else due to the Legislature’s inability to craft appropriate legislation to control the behavior and conduct of sex offenders that are out,” Pierson said.
He added that the county had crafted policies he thought were appropriate and similar to those in Orange County, allowing an offender to get written permission from the sheriff to be in certain public places around children. “I think there’s this misimpression that we want to ban sex offenders from going anywhere and doing anything,” Pierson said. “What we’re attempting to do is deal with the unusual situations where they’re predatory. If they go to an ice skating rink because they want to look at the young children, that’s who we’re trying to prevent from being in that kind of situation.”
Monday, April 14, 2014
Two notable circuit discussions of federal consequences of child porn production
I have just come across two notable circuit opinion dealing with the criminal and civil consequences child porn production. One was handed down late last week by the Fourth Circuit, US v. Cobler, No. 13-4170 (4th Cir. April 11, 2014) (available here), and it begins this way:
In this appeal, we consider the constitutionality and the reasonableness of a 120-year sentence imposed on a defendant convicted of production, possession, and transportation of child pornography, in connection with his sexual molestation of a four-year-old boy. The defendant argues that his lengthy prison sentence is disproportionate to his crimes, constituting cruel and unusual punishment under the Eighth Amendment, and that the sentence is greater than necessary to achieve legitimate sentencing goals. Upon our review, we reject the defendant’s constitutional challenge and conclude that the district court did not abuse its discretion in imposing a sentence designed to protect the public and to address the seriousness of the defendant’s crimes. Accordingly, we affirm.
The other opinion was handed down this morning by the Sixth Circuit, Prewett v. Weems, No. 12-6489 (6th Cir. April 14, 2014) (available here), and it begins this way:
Stanley Weems pleaded guilty to one count of producing child pornography. See 18 U.S.C. § 2251(a). His victim, J.W., filed this civil action against Weems to obtain compensation for the abuse. See id. § 2255(a). The district court awarded $1 million, a figure reached by multiplying the presumed-damages floor in the civil-remedies statute ($150,000) by the number of videos Weems produced (seven) and by capping the damages at the relief sought in J.W.’s complaint ($1 million). This accounting raises an interesting question: Does the civil-remedies statute set a presumptive floor of $150,000 for each criminal violation or a presumptive floor of $150,000 for each cause of action without regard to the number of alleged violations? As we see it, the text, structure and context of the statute, together with the structure of related civil-remedy laws, establish that the $150,000 figure creates a damages floor for a victim’s cause of action, not for each violation. We therefore reverse the district court’s contrary conclusion.
Would embrace of "judicial corporal punishment" help remedy mass incarceration?
The question in the title of this post is prompted by this provocative new commentary by John Dewar Gleissner and given the headline "Who is biased against prison and sentencing reform?". Here are excerpts:
Private prison companies and the guards’ labor unions are biased, of course. Politicians do not wish to appear soft on crime. Some communities need the jobs prisons provide. The public is biased about crime generally, and believes crime rates are going up when they are actually declining. Many want prison to be horrible. Who can blame crime victims? Taxpayers dislike money going to prisons. Law-abiding people do not have much in common with prisoners. Businesses don’t sell much to prisoners. Prison industries lose money and cannot succeed with government control.
The media prefer sensational stories about egregious criminal behavior. Once the offender is sentenced, the story usually ends. Prisoners do not have access to the internet.
Incarceration is hidden from the eyes of the people, harmful to the morals of prisoners and expensive. Cultural, generational and religious bias prevent us from crediting our ancestors or other countries with effective crime-control techniques....
Attacking the supply of illegal drugs did not work. The costs of fully supporting 2.3 million inactive welfare recipients, America’s prisoners, finally caught our attention. The Constitution is the standard in conditions of confinement litigation. But when the Constitution was adopted, massive incarceration as we now know it did not exist. Back then, judicial corporal punishment was constitutional; it was approved of or used by all the presidents carved into Mt. Rushmore.
Incarceration is all Western civilization has known for several generations. As the death penalty declines, most of us think of prison as the nearly exclusive serious punishment method. Criminal justice systems focus on the single, inflexible, expensive and inexorable dimension of time. Most Americans are shocked by the idea of judicial corporal punishment, which is invariably depicted as cruel, perverted or unjust in movies and TV.
Science proves that rehabilitation, restitution and deterrence are not often achieved by lengthy incarceration. But some violent offenders deserve their long prison sentences. Prisons will not be abolished. Real bad folks need to stay behind bars.
We think society moves forward. Reformers are supposed to be “forward-looking.” Belief in continual social progress ignores history. Society periodically degenerates into barbarism, disorganization, bankruptcy, genocide, war and revolution. Scientific study of changed values sometimes takes decades before conclusions are reached and legislation enacted. Our belief in social progress is accompanied by rejection of biblical principles in favor of unproven secular values.
We do not often enough look in the Bible for answers. If we did, the relatively simple solution to ending massive incarceration would be obvious: Deuteronomy 25:1-3. We could cut the American prison population in half. Modern behavioral and neurological science can and would confirm the superior effectiveness of traditional judicial corporal punishment. Believe it or not, judicial corporal punishment was largely abolished in the U.S. because it was too effective.
Judicial corporal punishment is in public, less expensive, much faster and repeatable. Its last use in the United States was to punish wife-beating without diminishing family income. In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz wrote, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”
Sunday, April 13, 2014
Another notable (and astute?) local shaming sentence for elderly bully
As reported in this AP piece, "Ohio Judge Sentences Man To Wear 'I AM A BULLY' Sign," another notable sentence involving shaming has made national news this weekend. Here are the details:
A man accused of harassing a neighbor and her disabled children for the past 15 years sat at a street corner Sunday morning with a sign declaring he's a bully, a requirement of his sentence.
Municipal Court Judge Gayle Williams-Byers ordered 62-year-old Edmond Aviv to display the sign for five hours Sunday. It says: "I AM A BULLY! I pick on children that are disabled, and I am intolerant of those that are different from myself. My actions do not reflect an appreciation for the diverse South Euclid community that I live in."...
Aviv arrived at the corner just before 9 a.m., placing the hand-lettered cardboard sign next to him as he sat in a chair. Within a couple of minutes, a passing motorist honked a car horn. Court records show Aviv pleaded no contest in February to a misdemeanor disorderly conduct charge. His attorney didn't return a telephone call for comment.
Aviv has feuded with his neighbor Sandra Prugh for the past 15 years, court records show. The most recent case stemmed from Aviv being annoyed at the smell coming from Prugh's dryer vent when she did laundry, according to court records. In retaliation, Aviv hooked up kerosene to a fan, which blew the smell onto Pugh's property, the records said.
Prugh has two adult adopted children with developmental disabilities, cerebral palsy and epilepsy; a husband with dementia, and a paralyzed son. Prugh said in a letter to the court that Aviv had called her an ethnic slur while she was holding her adopted black children, spit on her several times, regularly threw dog feces on her son's car windshield, and once smeared feces on a wheelchair ramp. "I am very concerned for the safety of our family," Prugh wrote in a letter to the court for Aviv's sentencing. She said she just wants to live in peace.
The judge also ordered Aviv to serve 15 days in jail and to undergo anger management classes and counseling. He also had to submit an apology letter to Prugh. "I want to express my sincere apology for acting irrationally towards your house and the safety of your children," Aviv wrote. "I understand my actions could have caused harm but at that time I was not really thinking about it."
Regular readers know that I tend to be a supporter of shaming sentences as an alternative to prison terms in appropriate cases. And this case seem like just the kind of matter in which a little public shaming, as opposed to an extended jail term, seems to have a reasonable chance of being an effective deterrent and a less cost to Ohio taxpayers.
Tuesday, April 01, 2014
"Sex offender housing restrictions do more harm than good"
The title of this post is the headline of this notable Concord Monitor editorial. Here are excerpts:
Of all the constituents that politicians want to help out, sex offenders probably rank at the very bottom of the list. But the New Hampshire Senate should summon the courage to do just that. By helping sex offenders, as strange as it sounds, the Senate will end up making life safer for everyone else.
At issue is legislation that would ban cities and towns from placing broad restrictions on where sex offenders may live. Several communities have attempted such restrictions, and lower-court judges have already struck down two as unconstitutional: one in Franklin and one in Dover. In both cities, local officials wanted to keep convicted sex offenders from living too close to places where children regularly gather: schools, day care centers and playgrounds. Several other communities still have such ordinances on the books, among them Tilton, Sanbornton, Northfield and Boscawen.
The impulse to keep sex offenders away from kids via zoning is completely understandable. But there is strong reason to resist. And there is strong reason to set such policy at the state level, rather than leaving it to individual communities.
A growing body of evidence — gathered not just by civil liberties lawyers, but from law enforcement officers, public officials and child advocacy groups — suggests that residency restrictions are placebo pills at best and counterproductive at worst. Such ordinances give communities a false sense of security while driving sex offenders underground or into rural areas where they can’t access the services that give them the best chance at rehabilitation....
An Iowa study, for instance, showed that sexual-abuse convictions had remained steady since statewide residency restrictions went into effect five years earlier but that the number of sex offenders failing to register their addresses with local police departments, as the law required, had more than doubled.And a study in the journal Federal Probation draws a clear link between housing instability — an obvious consequence of residency ordinances — and criminal recidivism. Instead, it suggests a strategy of identifying and carefully monitoring the highest risk offenders and creating stable lives for the rest through treatment and access to housing, jobs and services.
When a sex offender has served his sentence, it is in everyone’s interest that he succeed on the outside. Passing this bill would help.
Monday, March 31, 2014
Controversy long after du Pont heir got probation as punishment for raping his small daughter
As detailed in this lengthy local article from Delaware, headlined "Heir's sentence raises questions in child rape case," a high-profile child rape case from years ago is now generating new controversy because the low sentence imposed on the rapist just became public. Here are the details:
A judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he "will not fare well" in prison and needed treatment instead of time behind bars, court records show.
Superior Court Judge Jan Jurden's sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape. Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.
Richards' 2009 rape case became public this month after attorneys for his ex-wife, Tracy, filed a lawsuit seeking compensatory and punitive damages for the abuse of his daughter. The fact that Jurden expressed concern that prison wasn't right for Richards came as a surprise to defense lawyers and prosecutors who consider her a tough sentencing judge. Several noted that prison officials can put inmates in protective custody if they are worried about their safety, noting that child abusers are sometimes targeted by other inmates.
"It's an extremely rare circumstance that prison serves the inmate well," said Delaware Public Defender Brendan J. O'Neill, whose office represents defendants who cannot afford a lawyer. "Prison is to punish, to segregate the offender from society, and the notion that prison serves people well hasn't proven to be true in most circumstances." O'Neill said he and his deputies have often argued that a defendant was too ill or frail for prison, but he has never seen a judge cite it as a "reason not to send someone to jail."...
O'Neill said the way the Richards case was handled might cause the public to be skeptical about "how a person with great wealth may be treated by the system." Richards, who is unemployed and supported by a trust fund, owns a 5,800-square-foot mansion in Greenville, Del., he bought for $1.8 million in 2005. He also lists a home in the exclusive North Shores neighborhood near Rehoboth Beach, according to the state's sex abuse registry. His great-grandfather is du Pont family patriarch Irenee du Pont, and his father is Robert H. Richards III, a retired partner in the Richards Layton & Finger law firm....
The lawsuit filed by Richards' ex-wife accuses him of admitting to sexually abusing his infant son between 2005 and 2007, the same period when he abused his daughter starting when she was 3. Police said they investigated allegations involving the boy in 2010 after his mother filed a complaint, but said they did not have sufficient evidence to justify charges. Investigators will take another look at the allegations included in the lawsuit, which are based on reports by probation officers.
State Attorney General Beau Biden's office had initially indicted Richards on two counts of second-degree rape of a child -- Class B violent felonies that carry a mandatory 10-year prison term for each count. According to the arrest warrant filed by a New Castle County Police Detective JoAnna Burton in December 2007, the girl, then 5, told her grandmother, Donna Burg, that Richards sexually abused her.
Burg said the child reported that her father told her it was "our little secret" but said she didn't want "my daddy touching me anymore." Tracy Richards, who confronted her then-husband, told police he admitted abusing his daughter but said "it was an accident and he would never do it again," the warrant said.
Richards was free on $60,000 secured bail while awaiting trial on the charges that could have put him behind bars for years. But in June 2008, just days before a scheduled trial, prosecutor Renee Hrivnak offered Richards a plea to a single count of fourth-degree rape, which carries no mandatory time, and he accepted, admitting in court that he abused his child.
"It was more than reasonable, an enlightened plea offer," Richards attorney Eugene J. Maurer Jr. said. Fourth-degree rape is a Class C violent felony that by law can bring up to 15 years in prison, though guidelines suggest zero to 2 1/2 years in prison.
At Richards' February 2009 sentencing, Hrivnak recommended probation, Biden's chief deputy Ian R. McConnel said, adding that in retrospect he wished she would have sought prison time. Hrivnak would not comment.... McConnel would not discuss the rationale behind the Richards' plea deal and Hrivnak's recommendation of probation for the fourth-degree rape conviction.
While judges have the latitude to sentence defendants within legal parameters, they are urged to follow more lenient guidelines established by the Delaware Sentencing Accountability Commission, a panel of judges and other top officials in the criminal justice system. The panel has a policy that prison should be reserved for violent offenders, including rapists.
Jurden gave Richards, who had no previous criminal record, an eight-year prison term, but suspended all the prison time for probation. "Defendant will not fare well in Level 5 setting," said the final line of her sentencing order. In Delaware's correctional system, Level 5 is prison....
Defense lawyer Joseph A. Hurley said it makes sense to him that the judge would be concerned about Richards' time in prison. "Sure, they have protective custody, but that is solitary confinement for 23 hours a day. We're not a third-world society," Hurley said. "Sex offenders are the lowest of the low in prison," Hurley said. "He's a rich, white boy who is a wuss and a child perv. The prison can't protect them, and Jan Jurden knows that reality. She is right on."
Though lots of reactions to this story are possible, I cannot help but highlight that a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated. But I am inclined to encourage everyone to appreciate how this story reveals yet again how prosecutorial charging, bargaining and sentencing decisions are never subject to transparency or formal review, while judicial sentencing decisions have to be made in open court, on the record, and can in some cases be appealed.
Tuesday, March 25, 2014
Illinois commission advocates against putting all juve sex offenders on registry
As explained in this AP article, headlined "Commission: Remove Juveniles From Sex Offender Registries," a new public policy report urges Illinois officials to no longer require juvenile sex offenders to register. Here are the basics:
Requiring juveniles to register as sex offenders impairs rehabilitation efforts for a crime that very few of them ever commit again, according to a study released Tuesday. The Illinois Juvenile Justice Commission’s report recommends ending the practice of making offenders younger than 17 add their names to sex-offender registries, which can negatively affect an offender for years. Every juvenile convicted of a sex crime must register, and 70 percent of the 2,553 currently registered must do so for life, the report said.
The 150-page review of laws and treatment practices regarding juvenile sex crimes calls for the state to abolish the categorical requirement for young offenders’ registration. The report [available here], which the General Assembly requested in 2012, says sex crimes committed in youth are seldom repeated in adulthood and that individualized, community-based treatment plans are highly effective and more productive than incarceration.
“Automatic, categorical registries do not protect public safety,” commission chairman George Timberlake, a retired chief circuit judge from Mount Vernon, told The Associated Press. “There’s no evidentiary basis that says they do and more importantly, they have very negative consequences in the effects they have on the offenders’ life, and perhaps the victim’s life.”
Timberlake said the victim, often a family member, loses confidentiality through offender registration and can also suffer from not being able to resume a familial relationship with an offender who is required to register. He added that a registry might be appropriate based on risk. Many states offer courts flexibility.
The report recommends developing statewide standards and training for courts and law enforcement professionals for intervening with young sex offenders and victims. It also calls for a consistent assessment tool for evaluating risks an individual juvenile poses. Also, the report says, offenders whenever possible should be kept in treatment programs in their homes that involve parents as opposed to locking them up.
March 25, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Monday, March 24, 2014
AG Eric Holder announces new rules for federal halfway houses
Via this official press release, I see that Attorney General Eric Holder is continuing his effort to reshape the policies and practices of the federal criminal justice system, this time through new policies and programming for federal halfway houses. The title and subtitle of the press release itself provides a summary of this latest development: "In New Step to Fight Recidivism, Attorney General Holder Announces Justice Department to Require Federal Halfway Houses to Boost Treatment Services for Inmates Prior to Release; New Rules Also Instruct Federal Halfway Houses to Provide Transportation Assistance, Cell Phone Access in Order to Help Inmates Seek Employment Opportunities."
Here is more from the start of the press release:
In a new step to further the Justice Department’s efforts towards enhancing reentry among formerly incarcerated individuals, Attorney General Eric Holder announced Monday that the Bureau of Prisons (BOP) will impose new requirements on federal halfway houses that help inmates transition back into society. Under the proposed new requirements, these halfway houses will have to provide a specialized form of treatment to prisoners, including those with mental health and substance abuse issues. For the first time, halfway houses will also have to provide greater assistance to inmates who are pursuing job opportunities, such as permitting cell phones to be used by inmates and providing funds for transportation. The new requirements also expand access to electronic monitoring equipment, such as GPS-equipped ankle bracelets, to allow more inmates to utilize home confinement as a reentry method.
Holder announced the changes in a video message posted on the Department’s website. The BOP’s new policies have the potential to be far-reaching. To ease their transition, those exiting prison typically spend the last few months of their sentence in either a federal halfway house — known as a residential reentry center (RRC) — or under home confinement, or a combination of the two. These community-based programs provide much needed assistance to returning citizens in finding employment and housing, facilitating connections with service providers, reestablishing ties to family and friends, and more.
Last year alone, more than 30,000 federal inmates passed through a halfway house. Among the most significant changes Holder announced is the requirement for standardized Cognitive Behavioral Programming (CBP) to be offered at all federal halfway houses. This treatment will address behavior that places formerly incarcerated individuals at higher risk of recidivism. As part of this treatment requirement, BOP is setting guidelines for instructor qualifications, class size and length, and training for all staff at the halfway houses.
Several other modifications are being made to the standard contracts that apply to federal halfway houses in order to provide greater support to returning citizens. Examples include requiring halfway houses to provide public transportation vouchers or transportation assistance to help residents secure employment, requiring all federal halfway houses to allow residents to have cell phones to facilitate communication with potential employers and family, and improving and expanding home confinement by increasing the use of GPS monitoring.