Thursday, February 06, 2014

"Profiting from Probation: America's 'Offender-Funded' Probation Industry"

The title of this post is the title of this notable new report from Human Rights Watch. Here is the start of the report's summary:

The United States Supreme Court has ruled that a person sentenced to probation cannot then be incarcerated simply for failing to pay a fine that they genuinely cannot afford. Yet many misdemeanor courts routinely jail probationers who say they cannot afford to pay what they owe — and they do so in reliance on the assurances of for-profit companies with a financial stake in every single one of those cases.

Every year, US courts sentence several hundred thousand people to probation and place them under the supervision of for-profit companies for months or years at a time.  They then require probationers to pay these companies for their services.  Many of these offenders are only guilty of minor traffic violations like speeding or driving without proof of insurance.  Others have shoplifted, been cited for public drunkenness, or committed other misdemeanor crimes.  Many of these offenses carry no real threat of jail time in and of themselves, yet each month, courts issue thousands of arrest warrants for offenders who fail to make adequate payments towards fines and probation company fees.

This report, based largely on more than 75 interviews conducted with people in the states of Alabama, Georgia, and Mississippi during the second half of 2013, describes patterns of abuse and financial hardship inflicted by the “offender-funded” model of privatized probation that prevails in well over 1,000 courts across the US.  It shows how some company probation officers behave like abusive debt collectors.  It explains how some courts and probation companies combine to jail offenders who fall behind on payments they cannot afford to make, in spite of clear legal protections meant to prohibit this.  It also argues that the fee structure of offender-funded probation is inherently discriminatory against poor offenders, and imposes the greatest financial burden on those who are least able to afford to pay.  In fact, the business of many private probation companies is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in installments over time.

The problems described in this report are not a consequence of probation privatization per se.  Rather, they arise because public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices.  All too often, offenders on private probation are threatened with jail for failing to pay probation fees they simply cannot afford, and some spend time behind bars.

February 6, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, January 26, 2014

"Sex offender fights registry by registering his registerers"

The title of this post is the headline of this interesting Washington Post article discussing an efforts of, and challenges facing, one registered sex offender seeking to showcase the realities of being a registered person.  Here are excerpts:

If nothing else, Dennis Sobin is not your typical ex-con.

At first glance, he looks like the model returning citizen: After serving more than a decade in prison, Sobin, 70, returned to the District, started a gallery for prison art and ran for mayor. His nonprofit organizations have received grants from George Soros’s Open Society Institute and the National Endowment for the Arts and, in 2010, he appeared on the cover of the Washington City Paper .

But Sobin is also sex offender. A former pornographer who’s appeared on “The Sally Jesse Raphael Show” and “Geraldo,” Sobin was convicted of sexual performance using a minor in 1992 in Florida. So, every 90 days, Sobin must report to D.C.’s Court Services and Offender Supervision Agency (CSOSA), and his photo appears on D.C.’s public registry.

Sobin thinks it’s unfair. So, for his latest act, Sobin has decided to protest his treatment by creating his own online data base and registering the people who monitor him at the sex offender registry. Now, in an unusual case that will be heard on Tuesday, a D.C. Superior Court judge will decide whether a court employee can file a civil protection order to prevent Sobin from posting her photo on his anti-registry registry, www.idiotsregistry.info, and distributing her photograph on fliers.

“Here at www.IdiotsRegistry.info you will find the names of politicians and public figures who have encouraged the creation of, or have refused to denounce, government registration websites that target citizens for harassment,” Sobin’s site reads. “In the tradition of Nazi registration of Jews and Gypsies and the Salem lists of alleged witches, modern government registries are unfair and un-American.”

Stephanie Gray, who works for CSOSA, is asking the court to force Sobin to remove her picture from the site. Sobin, who was under Gray’s supervision until she got another position at the agency, did not mince words when criticizing Gray. “Face of Evil: ‘Registry Specialist’ Stephanie Gray shoots icy stare,” Sobin posted under a photo of Gray. “Gray requested and received a transfer due to the guilt she felt in her loathsome job.”

Sobin said his action was inspired by Supreme Court rulings which hold that sex offender registries are not punitive and do not constitute double jeopardy. “If it’s not punishment to be on a list, we thought we’d put the people who do the registering on a list,” he said.

Gray took another view. “He writes derogatory information about me,” Gray wrote in her request for a protection order. “I have been move[d] from the Sex Offender Registry and he continues to trash the bldg. where I am with pictures he has taken of me without me knowing.”

Should Sobin prevail,“It would send a message to all sex offenders in the District of Columbia,” according to a petition filed by Gray’s attorneys which accused Sobin of stalking. “Convicted criminals required to report to CSOSA could harass them with impunity under the guise of protected political speech.” Gray, through her attorneys, declined comment, as did CSOSA.

Sobin has found an ally: the American Civil Liberties Union, which filed an amicus brief on his behalf. “We think there are some significant First Amendment issues,” said Art Spitzer, legal director of ACLU’s D.C. office, who pointed out that Gray is not alleging physical harm. “Domestic violence laws are supposed to protect people from crimes, but not hurt feelings. . . . People are allowed to embarrass each other and make each other feel bad when making a political point.”...

Should Sobin win, Gray’s civil protection request will be denied, but D.C.’s sex offender registry will not be affected. But, Sobin said, he’ll have struck a blow for free speech and shown the flawed logic behind the registry — even if there’s collateral damage.

“Ms. Gray happens to be a very sensitive, compassionate individual who is on the registration list,” Sobin said. “It’s a war. . . . They’re involved in this registration thing and unless they move themselves out, we’re going to oppose them.”

January 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Monday, January 20, 2014

Explaining why I am rooting so hard for "Amy" in Paroline

Oral argument in the fascinating Supreme Court case of Paroline v. United States now is just a couple of days away, and this new AP article provides effective background on the case while also helping to spotlight some reasons I am rooting hard for "Amy" and her advocates to prevail:

The case being argued at the Supreme Court on Wednesday involves a Texas man who pleaded guilty to having images of children engaged in sex acts on his computer.  Doyle Randall Paroline is appealing an order holding him responsible for the full amount of losses, nearly $3.4 million, suffered by the woman known as Amy.  Of the several hundred incriminating images on Paroline's computer, just two were of Amy.

Advocates for child pornography victims say that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates say.

Thirty-four states, dozens of victims' rights and child advocacy groups, local prosecutors and members of Congress are urging the court to uphold the ruling against Paroline by the New Orleans-based 5th U.S. Circuit Court of Appeals.

No one has intervened on Paroline's behalf. But his lawyer, Stanley Schneider of Houston, said in court papers that there is no link between the restitution ordered by the appeals court and Paroline's conduct. "An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate," Schneider said....

The Obama administration is trying to steer a middle course. Solicitor General Donald Verrilli Jr. said the government agrees with Amy that her injury comes from the widespread viewing on the Internet of the assaults by her uncle. "The real question is whether ... a court must impose all of Amy's aggregate losses on each defendant. On that issue, Amy and the government take different views," Verrilli told the court. The administration said the correct answer is greater than zero and less than the entire amount and said trial judges should make the determination....

Regardless of the outcome of the court case, Congress could change the law. The U.S. Sentencing Commission recommended that lawmakers consider doing just that to eliminate confusion among federal judges about the right way to calculate restitution....

Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy.... Courts so far have awarded restitution in 182 cases and Amy has collected $1.6 million. Of that total, $1.2 million came from one man.

Typically, the court-ordered awards and the amounts collected have been much smaller, as little as $50 in one case, according to Justice Department records. Many judges have ordered no payments at all, Marsh said. The restitution law does not allow Amy to receive more than the lifetime estimate of her losses, Marsh said. But until the 5th Circuit ruling, Marsh said, "She has been forced to go around the country endlessly seeking out defendants with assets. It's endless, and it takes a toll on the victim."

If upheld, the ruling would change the equation.  Courts would not have to determine exactly how much harm any one defendant caused Amy.  Instead, all defendants would be liable for the entire outstanding amount, raising the possibility that a few well-heeled people among those convicted might contribute most, if not all, of the remaining restitution. Marsh said such an outcome would be just, and wealthy defendants could fight among themselves about who should pay what. "It's really about shifting the burden from the innocent victim to the people who are responsible," Marsh said.

Long-time readers know that I take a consequentialist view on most sentencing and punishment issues, and I strongly believe better consequences will prevail if all persons convicted of unlawfully downloading Amy's picture are all jointly liable for the full amount of her documented economic losses.  As the AP article suggests, if Amy wins then only the richest porn downloaders will end up paying her the most money in restitution.  But if DOJ's vague approach prevails, the richest porn downloaders will likely end up spending lots of money on lawyers in order to aggressively argue at sentencing that they should not have to pay much or any restitution to Amy or other victims.

More broadly, I actually think better consequences can and will ultimately prevail for future federal defendants convicted of unlawfully downloading child porn if Amy prevails in this case.  This is because I think, in light of the instructions of 18 USC 3553(a), federal judges would in the future be fully justified (and arguably even required) to generally impose a shorter federal prison sentence on a child porn defendant if and whenever that defendant is to be held jointly liable for the full amount of documented economic losses.  (Intriguingly, Doyle Randall Paroline himself got sentenced only to two years in prison, while the average downloader of child porn prosecuted in federal court these days gets a prison term of nearly a decade.)    

In her reporting and commentary on this issue (noted here and here), Emily Bazelon has rightly suggested that having child porn downloaders pay for their crimes through full restitution award (rather than through very lengthy prison terms) makes for better outcomes not only for victims but also for society.  As she has explained:

[J]oint and several liability ... works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy [and other like victims], it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

Because DOJ is not completely on Amy's side, and because some of the more conservative Justices have in the past expressed some constitutional concerns about some victims getting big awards in tort suits, I do not think it a certainty that Amy will prevail in this matter.  But because this is technically a statutory interpretation case, and because the briefs on Amy's side have done such an effective job highlighting reasons to think Congress would want Amy to prevail in this battle of equities, I think she has a pretty good chance to prevail.

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

January 20, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (41) | TrackBack

Thursday, January 16, 2014

Orange County DA hoping California high court will rescue local sex offender park ban

As reported in this local article, headlined "D.A. will take sex-offenders fight to state Supreme Court," a California prosecutor is planning to seek review in the Supreme Court of a lower state appellate court ruling that struck down local laws banning sex offenders from parks.  Here are the details:

The Orange County District Attorney's Office plans to go to the California Supreme Court to defend local ordinances that ban registered sex offenders from city parks.  A state appeals court on Friday struck down an Irvine law that barred registered sex offenders from city parks without written permission from police, a ruling that will become legal precedent. The court also struck down a similar Orange County law.

About a dozen other Orange County cities passed similar ordinances banning sex offenders from parks at the urging of District Attorney Tony Rackauckas.  Rackauckas helped craft Orange County's law with county Supervisor Shawn Nelson. “Protecting children from dangerous sex offenders is an ongoing war, and we believe that it's one of the most important jobs we have at the D.A.'s (office),” said Susan Kang Schroeder, Rackauckas' chief of staff.

Janice Bellucci, president of California Reform Sex Offender Laws, said of the pending appeal. “I think they're foolish to do it. They're wasting taxpayer money.”  Bellucci said her organization will urge Orange County cities that adopted similar legislation to pull the laws off their books or face a lawsuit.  

Opponents criticize the ordinances as overly broad and an infringement on civil rights.  They are “unenforceable,” Bellucci said.  “These ordinances give a false sense of security to parents. They don't really protect their children from those who are most likely to assault their children,” Bellucci said....

The Orange County ordinance, which became a model for local cities, made it a misdemeanor for any registered sex offender to enter a county park, beach or other recreational area without permission from the Orange County Sheriff's Department. Those convicted would face six months in jail or a $500 fine.

In Friday's ruling, a panel of judges said state laws regulating sex offenders pre-empt any local ordinances.  State law has long overseen sex-offender registration, the opinion said. State law already regulates where sex offenders may live and also identifies certain sex offenders who must be monitored by law-enforcement via GPS.

Offenders whose victims were younger than 14 may only enter parks where children gather with permission from their parole agents. The laws create a comprehensive system regulating sex offenders' daily lives, the court said.  No outright ban on sex offenders in parks is included in state law, an omission that “manifests a legislative determination that such a ban is not warranted,” the court said. Any such local laws undermine the decisions of the Legislature, the court said.

January 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, January 07, 2014

"Should We Let Prisoners Upgrade Their Prison Cells?"

9515_luxury_prison_by_iMoo_pupuDesign-1The title of this post is the headline of this interesting report from the OZY media resource. Here are excerpts:

Would prison be so bad if your cell was spacious and included a private bathroom, kitchen and cable TV? These are the accommodations for some prisoners at San Pedro prison in La Paz, Bolivia. But luxury isn’t free: For about $1,000-1,500, an inmate can purchase a high-class cell for the duration of his or her sentence.

San Pedro is divided into eight sections ranging from shared small cells with risks of stabbings at night to the opulent cells that have access to billiard tables and fresh juice stands. Every person must buy or rent a cell, no matter the quality, and many inmates have jobs as hairdressers, laundry staff, food stall operators or TV repairmen.

Does the idea of paying for better prison accommodations sound ludicrous? Would you bet this could never happen in the U.S.? Think again.

In California there are multiple jails with “pay-to-stay” programs where inmates can pay from $75-155 a day for a private cell in quiet areas away from violent offenders, and they are occasionally allowed to bring in an iPod or computer for entertainment. They must be approved for the program and their crimes are usually minor offenses. The ACLU is not a fan, calling the program a “jail for the rich.”

Supporters of pay-to-stay say they benefit the cities where they are located by providing revenue. For example, if the Fremont jail — which spends $8.35 a day on each inmate — houses 16 inmates for two nights per week a year, the city would net a profit of about $244,000. One immediate question is whether cities should make a profit off of prisoners. Another question has to do with equality.

Two people who commit the same crime but end up in different facilities depending on their ability to pay isn’t exactly equitable, but the American incarceration system doesn’t have the best record when it comes to treating the poor and rich equally....

But what if you weren’t allowed to use Daddy’s dollars to secure better living conditions while serving time for a DUI? What if, instead, you started out the same as every other inmate, regardless of personal wealth or outside resources?

Could a fairer option be that you start your sentence with a financial blank slate, earn money by taking jobs inside the prison or jail and then apply your self-earned dollars to book a nicer and more comfortable living situation? Should prisoners be allowed to pay to upgrade the quality of their cells, or should the nature of their crime be the sole factor in how they live out their prison terms?

January 7, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, January 06, 2014

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

Cross-posted at PrawfsBlawg

January 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Tuesday, December 31, 2013

Feds now saying Lynne Stewart should get compassionate release from prison term

This notable new AP story, headlined "Government asks NY judge to release ailing ex-terror trial lawyer from 10-year prison term," provides the grist for a useful final post for 2013. Here are the basics:

A dying former civil rights lawyer convicted in a terrorism case and sentenced to 10 years in prison is entitled to compassionate release because she has less than 18 months to live, prosecutors and the Federal Bureau of Prisons told a judge on Tuesday.

In a letter to U.S. District Judge John G. Koeltl, the government said 74-year-old Lynne Stewart was suffering from breast cancer that has metastasized to the lungs and bones. "Despite aggressive treatment, doctors have advised that her prognosis is poor," the letter said, adding she also has been diagnosed with anemia, high blood pressure, asthma and Type 2 diabetes. Stewart has been undergoing treatment at the Federal Medical Center in Carswell, Texas, as supporters have rallied to get her released. Once released, the letter said, she will live with her adult son in Brooklyn.

Stewart was convicted of helping a blind Egyptian sheik communicate with followers while he was serving a life sentence in a plot to blow up five New York landmarks and assassinate then-Egyptian President Hosni Mubarak. She has been imprisoned since 2009 and wasn't scheduled for release until August 2018.

She was first diagnosed with breast cancer in November 2005. The cancer went into remission but was discovered to have recurred after she was imprisoned. Stewart has written to the judge, saying she doesn't want to die in "a strange and loveless place" and wants to go home.

A previous compassionate-release request was denied in part on the grounds that Stewart had more than 18 months to live, though the judge said he would act promptly if the Federal Bureau of Prisons agreed she had less than 18 months to live and granted a compassionate-release application.

A federal appeals court in 2012 upheld Stewart's 10-year sentence, saying she earned it through serious crimes that she refused to acknowledge. The 2nd U.S. Circuit Court of Appeals said it was fair to boost Stewart's sentence from the two years and four months she was given in 2006. The three-judge panel that had ordered Stewart to be resentenced said it disagreed with her claim that her sentence was "shockingly high." It accused her of exhibiting a "stark inability to understand the seriousness of her crimes."

Arguably the biggest sentencing story of 2013 has been a (slight?) softening around the edges of a very harsh federal criminal justice system, largely as a product of the work of Attorney General Eric Holder. It is thus perhaps fitting that on the last day of 2013, federal officials are now supporting compassionate release for Stewart, only a few years after they succeeded in a multi-year, multi-court fight to seek to ensure she received a lengthy prison sentence that could have ensured she had to die in prison.

December 31, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (33) | TrackBack

Sunday, December 29, 2013

Audit reveals serious problems with GPS tracking of serious offenders in LA

As reported in this new Los Angeles Times article, headlined "One in four GPS devices on criminals in L.A. County were faulty," the potential technical problems posed by technocorrections have been revealed by a new local audit. Here is how the story starts:

One in every four GPS devices used to track serious criminals released in Los Angeles County has proved to be faulty, according to a probation department audit — allowing violent felons to roam undetected for days or, in some cases, weeks.

The problems included batteries that wouldn't hold a charge and defective electronics that generated excessive false alarms. One felon, county officials said, had to have his GPS monitor replaced 11 times over a year; for five days during the 45-day audit period, his whereabouts were unknown. "If you have faulty technology, that is a recipe for disaster," said Reaver Bingham, deputy chief of the probation department.

The findings come as nearly every California county is moving forward with some form of electronic monitoring to contend with tens of thousands of state inmates being released to their supervision, an offshoot of the effort to reduce prison overcrowding.

In Kern County, officials have instituted a "virtual jail." San Bernardino County is using GPS to track its homeless felons. And Los Angeles County Sheriff Lee Baca has floated a proposal to move 3,000 inmates out of crowded jails and into the community wearing GPS trackers.

Mandated for use on high-risk sex offenders by the 2006 passage of "Jessica's Law," GPS tracking has been promoted by both lawmakers and state law enforcement officials as a safe and cost-effective alternative to prison or jail. However, a Los Angeles Times investigation earlier this year showed that California corrections officials were aware of massive problems in their program. Citing an "imminent danger" to the public, the state in 2011 quietly replaced the GPS monitors on half of the paroled sex offenders.

Los Angeles County began leaning on electronic monitoring heavily in 2011, putting GPS devices on its highest-risk felons — repeat sex offenders, domestic abusers who had violated restraining orders and violent gang members.

December 29, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (12) | TrackBack

Wednesday, December 25, 2013

Controversial Montana judge adds notable writing requirement to max sentence for assault

As reported in this Los Angeles Times article, headlined "Judge sentences man to write 'boys do not hit girls' 5,000 times," a Montana judge who made headlines for a lenient sentence in a rape case is now making news with a novel sentence in an assault case. Here are the details:

The Montana judge who sparked ire by sentencing a former teacher to 30 days in jail for the rape of a 14-year-old girl has ordered a man convicted of punching his girlfriend to write “Boys do not hit girls,” 5,000 times.

District Judge G. Todd Baugh, whose actions in the rape case sparked a national furor and a petition drive to have state officials take disciplinary action, sentenced Pace Anthony Ferguson on Monday to the writing exercise, in addition to six months in jail, for fracturing the woman’s face in three places during an August 2012 argument. Ferguson, 27, also was ordered to pay $3,800 in medical bills that came as a result of the woman's injuries.

Baugh told Ferguson to number the list, 1 through 5,000, sign it and mail it to him by May 23, according to the Billings Gazette. The six months in county jail is the maximum allowed sentence for the misdemeanor assault.

Ferguson made two appearances in court on Monday. After being sentenced by Baugh, Ferguson appeared before District Judge Gregory R. Todd for a disposition hearing. The judge ruled that Ferguson had violated the terms of his release from prison after a 2003 robbery conviction and ordered the man to spend eight years in state prison.

December 25, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, December 11, 2013

Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry

This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts.  Here are the basics:

The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.

The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.

In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....

In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....

The court also said the board is required to ensure that its guidelines are based on "the available literature."

"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.

I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.

December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Thursday, December 05, 2013

Yet another effective review of the child porn restitution challenges facing SCOTUS

I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic.  (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.)  And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline.  The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):

In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.

Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...

Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery.  The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases.  But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....

Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution.  Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal.  The senators, though, say that all these courts got it wrong and the 5th Circuit got it right.  They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.”  And they provide an important piece of history about how VAWA was drafted....

Here’s the clearest way to think about how and why Amy and other victims like her should win restitution.  Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures.  But the harm is crystal clear in the aggregate.  And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.

How much does each viewer who is convicted have to pay?  The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole.  Courts should use their discretion to pick some place in the middle, the government says.  It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”

If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair.  But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

A few prior posts on Paroline:

December 5, 2013 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, December 04, 2013

Interesting split DC Circuit opinions about challenging prior convictions and supervised release conditions

While I was spending all my extra time yesterday reviewing the big Blewett en banc Sixth Circuit decision (basics here and here), the DC Circuit handed down two little penal decision concerning relatively technical aspects of modern federal sentence in US v. Martinez-Cruz, No. 12-3050 (DC Cir. Dec. 3, 2013) (available here) and US v. Malenya, No. 12-3069 (DC Cir. Dec. 3, 2013) (available here).

Federal sentencing practitioners ought to check out both rulings for the merits, and others may be interested in the lengthy dissenting opinions in each case authored by Judge Kavaugh. Indeed, to provide a summary of each ruling, I will us the first paragraph of the Judge's dissents.

In Martinez-Cruz
KAVANAUGH, Circuit Judge, dissenting: As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court opinions.  This case is controlled by at least the music, if not also the words, of the Supreme Court’s decision in Parke v. Raley, 506 U.S. 20 (1992).  There, the Supreme Court made clear that the defendant in a recidivist sentencing proceeding may be assigned the burden of proof when challenging the constitutionality of a prior conviction that is being used to enhance or determine the current sentence.  Consistent with Parke v. Raley, every court of appeals to consider the question has reached that same conclusion.  By ruling otherwise here, the majority opinion, in my view, both deviates from Supreme Court precedent and creates an unwarranted circuit split.
In Malenya:
KAVANAUGH, Circuit Judge, dissenting:  Malenya, then a 41-year-old man, attempted to have sex with someone he knew to be 14.  Malenya’s attempt was thwarted only because the 14-year-old’s mother fortuitously intercepted explicit text messages Malenya sent to the 14-year-old.  For his conduct, Malenya ultimately pled guilty and received a relatively short prison sentence of one year and a day in prison, followed by three years of supervised release with certain special conditions attached.  On appeal, Malenya objects to the special conditions imposed by the District Court and asks that they be vacated.  The majority opinion vacates the special conditions.  With one exception, I would affirm the special conditions.  I therefore respectfully dissent. 

December 4, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Monday, December 02, 2013

Another preview of Paroline via the New York Times

As I noted in this post a few weeks ago, oral argument in the fascinating Supreme Court case of Paroline v. United States is not until January.  But the parties' opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page, already provide a full review of the challenging issues that restitution sentences for child porn downloading victims presents for the Justices.   Adam Liptak in this new New York Times piece, headlined "Evaluating the Liability of Viewers of Child Pornography," effectively reviews the issues and arguments now before the Justices in Paroline:

The notices arrive almost every day. They tell a young woman named Amy, as she is called in court papers, that someone has been charged with possessing child pornography.  She was the child.  “It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,” Amy, then 19, wrote in a 2008 victim impact statement. “It’s like I am being abused over and over and over again.”

Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her.  Images of Amy being sexually assaulted by her uncle are among the most widely viewed child pornography in the world.  They have figured in some 3,200 criminal cases since 1998.

Amy is notified through a Justice Department program that tells crime victims about developments in criminal cases involving them.  She has the notifications sent to her lawyer. There have been about 1,800 so far.  Her lawyer often files a request for restitution, as a 1994 law allows her to do.  Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s losses are in most ways beyond measure, but some of them can be calculated in dollars.  She has found it hard to hold down a job. She needs a lifetime of therapy. She has legal bills. Her lawyers say it adds up to about $3.4 million.  The question for the justices is how to allocate that sum among the participants in the sordid marketplace for pictures of her.

One of those men is Doyle R. Paroline, who was caught with 280 images of children, including toddlers, being sexually abused.  Two of the pictures were of Amy. The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million....

Mr. Paroline was sentenced to two years in prison, but the trial judge, Leonard Davis, did not order him to give Amy anything.  The link between Amy’s losses and what Mr. Paroline did, Judge Davis said, was too remote.  The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it too much, the court said, relying on the legal doctrine of “joint and several” liability....

Mr. Paroline said the ruling was deeply unfair.  “An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate to the offense conduct,” he told the Supreme Court.  Requiring him to seek payment from his fellow sex offenders, he added, “would create a procedural nightmare.”

Amy’s lawyers countered that it should not be her burden to pursue her abusers over “decades of litigation that might never lead to a full recovery.”  She has received restitution in 180 cases so far, she told the justices, and has recovered a little more than 40 percent of her losses.

The Justice Department took a middle ground before the Supreme Court, saying that Amy deserved something from Mr. Paroline, but that $3.4 million was too much.  The right amount, the department’s lawyers said, was “somewhere between all or nothing.” They did not specify what Mr. Paroline’s share might be, saying the trial court should decide. 

A few prior posts on Paroline:

December 2, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, November 26, 2013

Intermediate NJ appeals panel upholds broad restriction on released sex offender access to social media websites

As reported in this AP article, headlined "NJ panel: Sex offenders can be kept off Facebook," a New Jersey appeals panel handed down today a notable opinion upholding a notable restriction on computer use by released sex offenders. Here are the basics:

A New Jersey appeals court has ruled that paroled sex offenders can be barred from Facebook, LinkedIn and other online social networks.

Two offenders had gone to court to challenge that restriction, saying social networks are important ways to get news, information and find business opportunities.

However, a three-judge panel ruled Tuesday that the offenders can be kept off social network as a term of parole. The judges said they agree that the networks are an important facet of modern life, but said there is a good reason to keep convicted sex offenders off them. "The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior," Judge Jack Sabatino said in his opinion. He noted that the parolees can still get news and buy products online.

The ruling referenced in this article is partially available at this link, and here are excerpts from the start of the opinion:

Appellants J.B., L.A., B.M., and W.M. are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board (the "Parole Board") as of fenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). Represented by the same attorney, appellants challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them. Similar conditions have been imposed on other offenders subject to CSL or PSL, although appellants have not filed a class action.

The terms of supervision mainly being challenged in these related appeals are (1) the Parole Board's restrictions on appellants' access to social media or other comparable web sites on the Internet; and (2) the Parole Board's authority to compel them to submit to periodic polygraph examinations....

For the reasons that follow, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges should they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

I expect the defendants here may be eager to appeal this matter to the NJ Supreme Court and maybe even the US Supreme Court, especially since it appears that the internet use restrictions upheld here are set to last a lifetime.  And though this case might not be the best vehicle, I suspect that SCOTUS will eventually have to consider what restrictions can be poperly place on internet access for released offenders.

November 26, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

Sunday, November 24, 2013

"'Cocaine congressman' received the right sentence"

The title of this post is the headline of this new commentary by Clarence Page appearing in the Chicago Tribune. Here are excerpts:

"Cocaine Congressman" Trey Radel, as headline writers have rebranded him, voted to allow states to drug test all food stamp recipients. Congress, it turns out, should have drug-tested Radel....

Radel became the first sitting congressman in 31 years, according to The Associated Press, to plead guilty to a misdemeanor drug-possession charge.

FBI and Drug Enforcement Administration agents swooped in to arrest him after he bought 3.5 grams of cocaine for $250 in a late October sting operation in Washington's fashionable DuPont Circle neighborhood. Charging documents described Radel as having a frequent-buyer reputation in the neighborhood. After Radel pleaded guilty in District of Columbia Superior Court, he was sentenced to a year of probation and will undergo substance abuse treatment in Florida.

House Republicans did not rush to escort Radel out the door, even though he reportedly waited three weeks before telling them about his bust. Speaker John Boehner said before Radel's sentencing that the matter should be left up to the courts, Radel, his family and his constituents.

Indeed, it would hardly be the first time that a politician continued to serve and potentially be re-elected after a misdemeanor conviction. Voters can be very forgiving of lawbreaking politicians.

"Today, I checked myself into a facility to seek treatment and counseling," Radel said in a statement last week. "It is my hope, through this process, I will come out a better man." I wish him luck. Unlike his more outraged critics, I don't think Radel should have been sent to jail. Quite the opposite, I think his case offers a good example of why a lot of nonviolent, first-arrest drug offenders shouldn't be in jail.

Contrast his case, for example, with another high-profile District of Columbia case, the arrest of then-Mayor Marion Barry for taking a hit of crack cocaine during an FBI hotel room sting in 1990. He was sentenced to six months in a federal prison. His sentence could have been worse if the video had not provided so much evidence to back the mayor's argument that he was a victim of FBI entrapment.

The fact that Barry is black and Radel is white doesn't mean that racism played a role in either case. But the differences in their sentences illustrate a persistent problem: Despite recent reforms, a racial disparity persists between the minimum sentences for crimes involving crack and powder cocaine. The Fair Sentencing Act that Congress passed in August of 2010 reduced the 100-to-1 disparity between crack and powder cocaine that was created during the anti-crack uproar of the 1980s. But it still remains way too huge at about 18-to-1. Fairness should never end at the color line.

Radel is fortunate to have been sentenced in D.C., where enlightened attitudes led to a special "drug court" in 1993 that is designed to funnel low-level addicts into rehab instead of long-term jail time. With prison costs skyrocketing — even after overall crime rates declined in the mid-1990s — even states with reputations for tough justice are turning to alternatives to prison for nonviolent drug offenders. Drug addiction should be handled as a disease, not a crime. Trey Radel knows.

Recent related post:

November 24, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (11) | TrackBack

Wednesday, November 20, 2013

"Sex offender offers to castrate himself for lighter sentence"

The title of this post is the headline of this new Boston Herald article, which gets started this way:

A convicted child-sex offender facing more than 40 life sentences in a rash of alleged rapes and assaults at a Wakefield child-care center is offering to undergo a “physical castration” to reduce his sex drive in return for a “massive” reduction in his sentence, his lawyer said.

John Burbine, 49, a Wakefield resident before he was arrested in September 2012, is asking prosecutors or the judge in his case if they would be willing to cap his sentence at the legal minimum of 15 years in prison if he agrees to voluntarily undergo a castration “preventing production of testosterone,” his lawyer William J. Barabino said.  “We would do it only if it results in a massive reduction in sentence,” Barabino told the Herald last night.

He told the judge in a court motion the procedure is effective in producing “a drastic reduction or complete discontinuation in sexual urges and sexual function, due to the inability to produce testosterone,” and is “an accepted method of treating certain types of abnormal sexual behavior, such as pedophilia.”

Barabino will make his pitch this morning in Middlesex Superior Court.  He said prosecutors have already indicated informally they are not interested in the deal.

The Wakefield defense lawyer said he expects a formal reply in court and still hopes the judge might consider authorizing the proposal.  His actual motion calls for a therapist to ensure Burbine can make an informed decision on the medical procedure.

November 20, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Congressman pleads guilty and gets quick resolution to local DC cocaine charge

As reported in this Washington Post article, headlined "Rep. Trey Radel pleads guilty on charges of cocaine possession," a new member of Congress discovered how quick and efficient (and humane?) government in the form of the criminal justice system can sometime be.  Here are the notable details:

Freshman Rep. Trey Radel (R-Fla.) pleaded guilty in D.C. Superior Court on Wednesday to a misdemeanor charge of possession of cocaine, after buying the illegal drug outside a restaurant in Dupont Circle late last month.

According to court documents, the first-term congressman “unlawfully, knowingly and intentionally possessed” a quantity of cocaine. Radel was charged Tuesday, following an indictment by a Superior Court grand jury.

Radel and a friend of his met an undercover agent at a restaurant in Dupont Circle at 10 p.m. on Oct. 29, prosecutors said in court. Radel asked the friend and the agent to go with him to his home. The agent declined. Radel then purchased 3.5 grams of cocaine, estimated to be worth $250, from the agent in his car.

After the transaction was made, officers stormed the vehicle, and Radel dropped the drugs. He allegedly invited the officers back to his apartment to discuss the incident. When officers went to the home, they found a vial containing cocaine.

Judge Robert S. Tignor sentenced Radel to one year on probation while he undergoes treatment in Florida. Radel said he is also seeking counseling in the District. Tignor said he took into account that this was Radel’s first offense. If Radel violates the probation, he will have to serve 180 days in jail. He also had to pay a $260 fee. His attorney had sought six months probation at the court hearing.

“Your honor, I apologize for what I’ve done,” Radel told the judge. “I hit a bottom and I realize I need help.”

“I am so sorry to be here,” he said. “I have let my constituents, my country and my family down. I want to come out of this stronger and I intend to do that, to be a better man, a better husband and continuing serving this country.”

If Radel completes probation, he won’t have a conviction on his record, according to the U.S. attorney’s office.

Radel, 37, was elected last November with 63 percent of the vote. He represents Florida’s 19th Congressional District, which includes Fort Myers, Naples, Cape Coral, Bonita Springs and Marco Island. In a statement issued after he was charged Tuesday, Radel expressed profound regret for his actions and said they stemmed in part from an addiction to alcohol. “I struggle with the disease of alcoholism, and this led to an extremely irresponsible choice,” he said. “As the father of a young son and a husband to a loving wife, I need to get help so I can be a better man for both of them . . . I know I have a problem and will do whatever is necessary to overcome it.”

Michael Steel, a spokesman for House Speaker John A. Boehner (R-Ohio), said the matter will be dealt with outside the halls of Congress. “Members of Congress should be held to the highest standards, and the alleged crime will be handled by the courts,” Steel said. “Beyond that, this is between Representative Radel, his family and his constituents.”

But Radel’s case will also be examined by the House Ethics Committee. House rules require the panel to launch a preliminary investigation any time a member is indicted or charged with criminal conduct.

Radel did not participate in House votes Monday evening. But he has been casting votes in recent weeks, including on the day of and the day after the alleged cocaine purchase. He recently co-sponsored a bipartisan bill to reform the nation’s mandatory minimum sentencing laws for drug offenses.

November 20, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (10) | TrackBack

Tuesday, November 19, 2013

What message does six-month prison sentence in high-profile NJ animal cruelty case really send?

1467286_670148976359390_1970997383_nThe question in the title of this post is prompted by this lengthy local report about a high-profile New Jersey state sentencing, headlined "Brick couple sentenced to 6 months in jail for abusing dog, Sammy."  Here are excerpts:

The township couple that admitted to abusing a 17-year-old dog named Sammy was sentenced to six months in jail on Monday. Brick residents Keith Morgan, 56, and Shauna Ewing Morgan, 43, stood in silence next to each other and between their respective attorneys while the sentence was read. The sentence also included a $1,000 fine, $13,500 in restitution, 30 days community service and the couple is prohibited from future ownership of an animal.

“This is what we wanted, this is what was deserved and it was justified,” Monmouth County SPCA Chief Victor “Buddy” Amato said. “This judge did the right thing.” A packed courtroom erupted in cheers when Judge Robert LePore announced jail time for the couple.

“Unless these individuals are imprisoned for their depraved, cruel and heinous conduct, such acts of animal cruelty will continue worldwide,” LePore said. “The lack of care provided to Sammy was inexcusable.” LePore said the sentence he issued was to deter future animal cruelty. “This court believes that a message needs to be sent not just to these defendants, but to all of society that animal cruelty is a national and global problem and must be addressed and deterred,” LePore said.

The charges stem from a March incident when Keith Morgan brought the Cocker Spaniel to the Associated Humane Society in Tinton Falls, claiming he found Sammy in a garbage bag on the side of the road, Amato said. Keith Morgan gave an interview to a local television station after he turned the dog in, claiming he found the dog. That interview was played in court during the sentencing. However, officials said they later learned that the couple had owned the dog for at least nine years.

Sammy was then brought to the Red Bank Veterinary Hospital for treatment because he was malnourished and his fur was covered in urine and matted together in knots to the extent that the dog could not stand up, Amato said. He was released to a foster family in April. Days after Sammy was turned in, authorities learned through an anonymous tip that the Morgans had a second dog, named Ady, at their home. Amato said that because Ady had been groomed before they found her, authorities they were unable to determine if she was neglected. The 3-year-old Cocker Spaniel was voluntarily surrendered to the SPCA and eventually placed in a new home.

Before LePore issued the sentencing, both of the Morgans made a statement to the judge, apologizing. “I was in a bad time in my life. I was depressed … because my wife left,” Keith Morgan said. “I apologize, I didn’t mean for this to happen.” He and his attorney Kevin Sheehy told the judge that Shauna Morgan wasn’t at the home for several months before the incident because the two were separated. Keith Morgan had also been diagnosed with a kidney disease and at one point was suicidal, Sheehy said.

Shauna Morgan’s attorney, Marc Schram, told the judge the couple did not have any contact during their separation, and found the conditions at the home when she returned. “I should have foreseen that Sammy wouldn’t have been safe with my husband, but I didn’t know he was going to get so sick. … If I had foreseen it I would have taken Sammy with me,” she said through tears. “I’m sorry it turned out the way it did.”...

Attorney Steven Zabarsky prosecuted the case and he said he was happy with the outcome. “On behalf of the state, I’ve very satisfied,” Zarbarsky said.

Sammy’s case garnered international attention and a Facebook page was created in support of the dog. An online petition calling on prosecutors to ask for the maximum sentence for the Brick couple received nearly 33,000 signatures.

The Morgans were arraigned on May 20, with more than 250 people packing the Brick municipal courtroom to watch.  A line stretched out the door of the courthouse with supporters wearing t-shirts and holding signs demanding justice.  During a July 15 hearing, which also drew approximately 150 Sammy supporters, a Staten Island, N.Y. woman yelled out “Go kill yourself” and was escorted out of the courtroom.

Ultimately the Morgans reached a plea agreement on Aug. 19, and Amato called the outcome a “win.”  Keith Morgan pleaded guilty to one count of abuse of animal cruelty and filing a false report with law enforcement, while Shauna Ewing Morgan admitted to two counts of animal cruelty.

The eight-month case also stirred debates surrounding animal abuse. In May, N.J. 101.5 radio hosts Dennis Malloy, Judi Franco and Ray Rossi were under fire after they brought the case up on their respective shows. Social media posts claimed Malloy and Franco said animal rights activists needed to get their priorities straight, while Rossi allegedly said “untrue” and “hurtful” statements on air about one of the administrators of the Sammy the Cocker Spaniel Facebook page....

Capt. Richard Yocum, who is president of the state SPCA, said he was proud of Detective William Hyer and Deputy Chief Larry Donato, who investigated the case and of the ruling that was made.  “The stand that they [the court] have taken against animal cruelty being unacceptable tonight was admirable,” Yocum said.  “Sammy does have a loving home, he’s doing much, much better and he’s living out his life in a very good place.”

After the sentence, both of the Morgans’ attorneys said they would be filing an appeal Tuesday morning.  The judge granted a motion for a stay to allow the Morgans to remain free for the appeal process.

Because I am an animal lover and have been a passionate pet owner for my whole life, I can understand how many people can and will get very worked up about animal abuse. Still, I cannot help but wonder how much NJ taxpayer money was spent in this prosecution, and I especially wonder if many other abused animals might have been better served if those resources had instead been directed to an animal shelter or to a public service campaign.

Effective use of state resources aside, the message I take away from this sentencing story is the telling (and I think unfortunate) reality that many folks view incarceration as the only serious and meaningful punishment even when it seems likely that creative alternative punishments could possibly be more significant and effective. This kind of case, in which the defendants do not appear to present any real risk to public safety, seems to me to be the perfect setting for developing thoughtful shaming sanctions and lengthy (animal-servicing) community service as a punishment that could and should keep an on-going spotlight on the problems of animal cruelty and better enable other to better understand how to avoid hurting animals in the first instance.

November 19, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (35) | TrackBack

Friday, November 15, 2013

Is AG Eric Holder going to stay on the job until he truly reforms American criminal justice?

The question in the title of this post is inspired by this new Washington Post article headlined "Reforming justice system is personal goal for Eric Holder Jr."  Here are excerpts from the piece:

As the Justice Department seeks new ways to reduce the burgeoning U.S. prison population, its success is likely to depend on community programs such as the one in this small city in America’s heartland.

In the past 11 years, federal prosecutors here have authorized substance abuse treatment and other assistance for more than 100 low-level offenders as an alternative to prison sentences.  Eighty-seven have successfully completed the program and, in the process, saved the federal government more than $6 million by sparing it the cost of incarceration....

Justice officials see the program in Peoria as a model for other communities — and central to the criminal justice reforms that Attorney General Eric H. Holder Jr. is moving to implement.  In August, at an American Bar Association conference in San Francisco, Holder announced that low-level nonviolent drug offenders with no ties to gangs or large-scale drug organizations would no longer be charged with offenses that impose severe mandatory sentences.  He has also introduced policies to reduce sentences for elderly, nonviolent inmates, to find alternatives to prison for nonviolent criminals, and to improve reentry programs to curb repeat offenses.

The announcements have heralded some of the most significant criminal justice policy shifts from the department in years.  For Holder — who has said that as a U.S. attorney and judge he saw neighborhoods destroyed by both illegal drugs and the tough-on-crime legislation that has disproportionately affected black men — the issue has been personal.

“Day after day, I watched lines of young people, most often young men of color, stream through my courtroom,” Holder told ex-offenders Thursday during a visit to a St. Louis courthouse, one of a string of stops he is making to promote his reform agenda.  “I learned how drug abuse, crime and incarceration can trap people in a destructive cycle.  A cycle that weakens communities, tears families apart and destroys individual lives.”...

Many of the department’s criminal justice reforms have bipartisan support, and Republican governors in some of the most conservative states have led the way on prison reform.  Congress also has shown a renewed interest in reducing the nation’s prison population, including the introduction of a bill this week that would reauthorize the Second Chance Act, which funds grants for programs that support probation, parole and reentry programs across the country.

“Rather than incarcerating repeat offenders in the same families generation after generation, we can put our taxpayer dollars to better use to break this vicious cycle and turn lives around,” Sen. Rob Portman (R-Ohio), a former prosecutor and one of the bills sponsors, said in a statement.

Efforts to reduce the prison population have drawn criticism from some lawmakers, who are skeptical that new policies will reduce crime.  “I am skeptical,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the chamber’s Judiciary Committee, said at a a hearing last week.  “Reducing prison sentences will bring prisoners out on the street sooner.  The deterrent effect of imprisonment would be reduced.  Many so-called nonviolent drug offenders have violent records.  Some of these released offenders will commit additional crimes.”...

In a Philadelphia courtroom earlier this month, the attorney general watched more than a dozen drug offenders in a “reentry” program report to a judge to discuss their personal and work situations.  Officials there said the program, which provides parenting classes, vocational training and job opportunities, has saved $1.5 million in annual incarceration costs because fewer ex-offenders are being sent back to prison.  The national revocation rate for ex-offenders who are not in such programs is 47 percent; the rate among participants in the seven-year-old Philadelphia program is about 20 percent.

During his stops Thursday, Holder met with judges and pretrial service officers and watched as a district court judge encouraged ex-offenders to overcome their drug addictions and stay out of prison.  He spoke emotionally to a group about how his nephew struggled to overcome drug addiction.

Inside a federal courthouse in St. Louis, he watched a ceremony in which ex-offenders graduated from an intensive recovery program called EARN (Expanding Addicts’ Recovery Network). “I look at you all and I see myself,” he said. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”

“Some of them didn’t catch the same breaks,” the nation’s top law enforcement official said. “Some had to deal with drug issues. . . . I know that everyone makes mistakes — everyone. Including me. And that’s why I wanted to be here today to tell you in person how proud I am that each of you has decided not to let your mistakes define you and not to make excuses, but to make the most of the opportunities that you’ve been given.”

Right after President Obama's re-election, as noted in this post from last November, AG Holder was talking about staying on as AG for only "about a year" into this second Presidential term. But that year has now passed, and I have heard very little new buzz about AG Holder moving on. And, if he is truly committed to engineering significant and lasting criminal justice reform, I think he may need (at least) the next three years to really have a chance to get this done.

November 15, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, November 08, 2013

"Informal Collateral Consequences"

The title of this post is the title of this notable new piece available via SSRN by Wayne Logan. Here is the abstract:

This essay fills an important gap in the national discussion now taking place with regard to collateral consequences, the broad array of non-penal disabilities attaching to criminal convictions. In the wake of the Supreme Court’s landmark 2010 decision in Padilla v. Kentucky, efforts are now underway to inventory collateral consequences imposed by state, local, and federal law.  Only when the full gamut of such consequences is known, law reformers urge, can criminal defendants understand the actual impact of their decision to plead guilty.

The increased concern over collateral consequences, while surely welcome and important, has however been lacking in a key respect: it has ignored the many adverse social, medical and economic consequences of conviction, experienced by individuals independent of formal operation of law.  This essay augments the consciousness-raising effort now under way and makes the case that informal, and not just formal collateral consequences of conviction, should figure in post-Padilla policy efforts to achieve a fairer and more transparent criminal justice system.

November 8, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack