Monday, May 26, 2014
"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.
Wednesday, March 19, 2014
Should sex offenders be prohibited from winning lottery jackpots?
The question in the title of this post is prompted by this new FoxNews report headlined "Massachusetts official seeks to prevent sex offenders from collecting large lotto payouts." Here are excerpts:
A Massachusetts state senator is pushing to close a lottery loophole that allows sex offenders to pocket huge payouts and potentially use their winnings to buy their victims' silence.
"Should someone on the sex offender list purchase a ticket and win, I think we should find a way from preventing them from enjoying the proceeds," state Sen. Richard Moore told The Boston Herald. "This doesn't smell right to start with."
Moore's concern came as it was revealed that a Level 3 serial child predator walked away with a $10 million win in 2008 and used his winnings to buy gifts for a boy he was allegedly abusing. Daniel T. Snay, 62, was convicted four separate times of indecent assault and battery on a person 14 years or older from 1974 to 1987. He pleaded not guilty Monday at his arraignment on charges including indecent assault and battery on a child under the age of 14 and other charges....
"I guess he bought my silence by giving me gifts and stuff," the boy, now 16, told police, according to a transcript released in court, the paper reported. The alleged abuse occurred about the same time he won the lottery and it continued until March 1, 2012, the report said.
Police Chief Jeffrey Lourie said Snay's "windfall aided the commission of the crimes" by helping him gain favor with people. Sam Goldberg, Snay's attorney, told the paper the allegations are "very easy to bring ... especially when you know this is someone who’s already been a lightning rod ... because of the lottery winnings."
The director of the state's lottery told the paper that winnings can be intercepted by the IRS or Department of Revenue, but a payout cannot be withheld “based on someone’s character."
Saturday, March 01, 2014
Notable new federal front in drug war being tried in South Carolina
I was intrigued to see this lengthy article at the Huffington Post headlined "Federal Prosecutor Tries A Radical Tactic In The Drug War: Not Throwing People In Prison." The piece merits a read in full, and here is a taste:
Conway is a small city, with a population of about 16,000. Many residents work in tourism-related jobs in nearby Myrtle Beach. The drugs and gangs have made them feel unsafe at home. Dianne Davis, 56, said she tries "not to let the dark catch me" and described other Conway residents as barricading their doors with two-by-fours. "I want to be able to stand on my porch," Davis said. "I have a beautiful garden."
"There are a lot of gangsters running around in that area," Jimmy Richardson said of the neighborhood where Huckabee Heights is located. Richardson is the chief state prosecutor for Horry County, which includes Conway, and a resident of the city himself.
To South Carolina's top federal prosecutor, however, the troubles in Conway present an opportunity. U.S. Attorney Bill Nettles is testing out a novel approach to dealing with drug-related crime, one that aims to clean up the streets by looking beyond mass arrests and incarceration. Conway is the third city in South Carolina to implement a version of the plan, and federal prosecutors in other states and the Justice Department are watching closely. If the program's success continues in South Carolina, it could become a model for law enforcement across the country.
"What I want to do is to make the people's lives who are law-abiding citizens in this community better," Nettles said on the two-and-a-half-hour drive to Conway from his office in Columbia last month. "Incarceration is no longer the goal, but is one of many tools available to allow you to effect your goal of improving their lives. It represents a fundamental shift, a seismic shift in terms of how you're viewing what you're doing."
"When you declare a 'war on drugs,' the community sees the cops as the occupiers, and the cops see the people in the community as enemy combatants," Nettles said. "Well, that's not the way it's supposed to be."
Nettles' plan is surprisingly straightforward. First, federal and local prosecutors identify local drug dealers with the help of the police, probation officers and community members. Next, they build criminal cases against them by reviewing records for outstanding warrants and conducting undercover drug buys. In most cases, arresting all the dealers would be the next order of business, but Nettles has a different idea.
While high-level dealers are still arrested and prosecuted, some low-level offenders are given another option. For them, Nettles stages something of an intervention. Together with the police, family members, religious leaders and other members of the community, prosecutors present the dealers with the evidence against them and give them a choice: Face the prospect of prison or participate in the pilot project.
The program, officially known as the Drug Market Intervention Initiative, helps the dealers find legitimate jobs and offers them help with drug treatment, education and transportation. The hope is that it provides them with the support and the motivation they need to turn their lives around.
The ones who are chosen know that not everybody gets this chance. The initiative in each city does not have endless resources. So only certain low-level offenders, those with limited criminal histories and no violent crimes in their past, are given the opportunity to avoid prison.
For a period of time, typically more than a year, they are monitored to make sure they remain law-abiding citizens. If they do, they will remain free of the criminal justice system. Until they complete the program, however, the threat of arrest based on the evidence already collected continues to hang over their heads. If officials receive complaints about anyone involved in the program, a judge can sign off on an already prepared arrest warrant....
"These people are being regularly drug tested, they are in a stringent program, and if they fail out or don't show up or quit doing their stuff for work, I'm going to arrest them," Nettles explained. "That is what some people call a motivated employee." Part of their motivation also comes from the fact that a steady paycheck can actually be more lucrative than the drug business. Contrary to the popular image of drug lords rolling in cash, many street-level dealers are barely getting by.
Thursday, February 20, 2014
A shameful suggestion for how to NYC roads and walkways safer
I was asked yesterday to contribute my thoughts to the Room for Debate section of the New York Times to address the question of "what steps can [New York City] officials, pedestrians and drivers take to reduce the number of accidents?". My suggestion in available at this link, and here is a segment:
Perhaps Mayor de Blasio might try to impose salient shaming sanctions rather than other traditional punishments.
What if, after a reckless driver has caused a crash in Midtown, the offender were required to create a video reciting recent accident data, which would be posted on YouTube and regularly shown on screens in Times Square? What if, after a cyclist is caught dangerously weaving through traffic in Brooklyn, that scofflaw had to make a live apology during halftime of a Nets game? What if all drivers convicted of speeding were required to place bumper stickers on their cars highlighting that the owner does not follow traffic rules? ...
Because we have rarely tried to make traffic offenders “pay” for their crimes through prominent use of shaming, I cannot confidently predict it would be more effective. But given the challenges in trying to capture the attention and obedience of busy New York City drivers, it is worthwhile to consider creative alternative punishment schemes.
Saturday, February 15, 2014
"Healthcare Not Handcuffs": Will ACA help end the drug war?
The title and question of this post is my take on this notable recent report from the ACLU and the Drug Policy Alliance titled "Healthcare Not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform." Here is an excerpt from the report's introduction:
The Affordable Care Act (ACA) is the most significant expansion of healthcare coverage in generations, and there is almost no area of the U.S. healthcare system that is not impacted by the reform in some way. Even as debate about the ACA continues, it is now the law of the land, and implementation is fully under way. For criminal justice reform and drug policy reform advocates, the ACA represents a remarkable opportunity to advance efforts to end both mass incarceration and the criminalization-based approach to drug policy often known as the War on Drugs.
Under the ACA, tens of millions of people in the United States will gain healthcare coverage for a broad array of health services and conditions, including, for the first time, substance use and mental health disorders. Of course, there are also problems with the ACA and its implementation, not the least of which is that millions of people will remain uninsured even after the law is fully operational. Yet even with these challenges, the ACA sets the stage for a new health-oriented policy framework to address substance use and mental health disorders -- health problems that have been largely relegated to the criminal justice system for more than 40 years.
This is an enormous paradigm shift that has yet to fully register with criminal justice and drug policy reform advocates, let alone with health policy advocates and the general public. The financial benefits of providing substance use disorder treatment instead of incarceration are well established. But by fully incorporating substance use and mental health disorders into healthcare -- by truly treating them as health issues and requiring public and private insurance plans to cover their treatment -- the ACA creates an opening and financial incentives to shift drug policy into a public health framework, undermining the rationale for a criminal justice approach....
The passage and implementation of the ACA coincides with the growing momentum across the political spectrum to end the War on Drugs, reverse the incarceration boom, and abandon criminal justice policies that have resulted in the criminalization of whole communities. But the paradigmatic shift from criminalization to health will not occur unless criminal justice and drug policy reform advocates seize the moment and leverage the ACA to realize its full transformative potential.
To assist advocates in navigating this new terrain, this paper outlines some of the major provisions of the ACA immediately relevant to criminal justice and drug policy reform (Part One), and then explores specific applications of those provisions, including program and policy examples and suggested action steps (Part Two)....
This is a unique, perhaps even once-in-a-lifetime scenario for criminal justice and drug policy reform advocates: with the ACA, we can start to build true alternatives to the criminal justice response to substance use, the enforcement of which has fundamentally undermined community health and safety. Addressing substance use as a health condition has the potential to lower health costs, dramatically reduce the number of people involved in the criminal justice system, and improve health outcomes and overall wellbeing for millions of people.
Monday, February 10, 2014
Registered sex offender makes case against sex offender registry
Guy Hamilton-Smith, a registered sex offender and law school graduate who has so-far been denied the opportunity to become a member of the bar, has this new op-ed in the Lexington Herald-Leader under the headline "Sex-offender registry misguided thinking." Here are excerpts:
I am a sex offender. I know well the tremendous power of those words. In 2007, I pled guilty to possession of child pornography.
Nothing here is meant to defend what I did or to minimize the gravity of my actions. I had a major problem with pornography, and I was far too deep in denial and too scared to reach out to anyone. Help eventually came when my girlfriend discovered child porn on my computer and went to the police. I was then and remain grateful to her for taking that step.
As I went through the legal process after my arrest, I developed a keen interest in the law, and a sincere desire to advocate on the behalf of those who are hated, who are lost, and who are forgotten. With luck, I managed to win acceptance to law school despite my conviction. I worked harder than I'd ever worked in my life, because I knew I'd have a lot to do to overcome my past. I did well in school, graduated, secured a job at a law firm after disclosing my past, and applied to take the bar exam. Recently, the Kentucky Supreme Court ruled that I will not be allowed to take the bar exam until I am no longer on the sex-offender registry, which will be another 18 years from now.
But the point I want to make is not about me. It isn't about my case. I am not here to say whether the court's decision was right or wrong. The principles at play are much larger than me.
Strange as it may sound coming from a felon and a sex offender, I believe in the necessity of punishment. How else, after all, are people supposed to make amends for the harm that they cause? ... I believe in many ways that my life was saved by virtue of my arrest. I am sensitive to the fact that my crime, and the crimes of others on the sex offender registry, are serious. I do not mean to denigrate the plight of victims, as I was also a victim at one point in my own childhood.
My point, rather, is simply this: punishment that becomes unmoored from considerations of proportionality, redemption and reintegration becomes poison, and we — society, victims and perpetrators — become diminished by it.
Nowhere is this more evident than the sex-offender registry. Those who find themselves constituents of the registry are routinely and uniformly denied the same second chance afforded to so many other criminal defendants after they have served their sentences.
The impetus behind the registry is the popular belief that sex offenders always commit new sex crimes. That view, however, is at odds with data from the Department of Justice and others....
I know that I am not a sympathetic figure by virtue of my crime. I know that I can never change the past or undo the things that I have done. My hope here is that we can have a discussion in this country that is long overdue — namely, what it is that we hope to achieve from our system of criminal justice.
February 10, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack