Wednesday, March 04, 2015
"Boxed Out: Criminal History Screening and College Application Attrition"
The Center for Community Alternatives (CCA) and the Education from the Inside Out Coalition are pleased to announce the release of "Boxed Out: Criminal History Screening and College Application Attrition" written by Alan Rosenthal, Esq., Advisor on Special Projects and Counsel; Emily NaPier, M.A., Senior Research Associate; Patricia Warth, Esq. Director of Justice Strategies; and Marsha Weissman, Ph.D., Executive Director.
This report builds upon CCA's 2010 study, "The Use of Criminal History Records in College Admissions Reconsidered." It makes clear how the criminal history box on college applications and the supplemental requirements and procedures that follow create barriers to higher education for otherwise qualified applicants. We focused on the State University of New York (SUNY), and found that almost two out of every three applicants who disclosed a felony conviction were denied access to higher education, not because of purposeful denial of their application but because they were driven out of the application process by the stigmatizing questions and the "gauntlet" of additional requirements. We call this phenomenon "felony application attrition."
This case study of SUNY has national implications. The supplemental procedures and requirements imposed by SUNY campuses are not unique, and reflect procedures followed by many colleges and universities across the county.
Monday, March 02, 2015
California Supreme Court rules blanket sex-offender residency restriction fails rational basis review
In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds. As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."
As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:
In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b). As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....
The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole. We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.
March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
AG Holder provides Congress a sentencing reform to-do list
This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms. Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":
Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws. This presents a historic opportunity to improve the fairness of our criminal justice system. But unless we act quickly, we risk letting the moment pass.
The Justice Department has sought to be an early innovator on this front. A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice.... Preliminary results from this effort are extremely encouraging....
Last year also witnessed the first overall reduction in the federal prison population in 32 years. Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.
But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own. Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.
First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair. Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.
Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.
Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions. These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.
Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses. These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.
While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause. And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.
In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress. As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen." Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong."
I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act. Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front. In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).
Monday, February 16, 2015
Senate unanimously passes child porn restitution bill to fix Paroline problems
As report in this article, last week the U.S. Senate finally passed a bill to restructure the standards and procedures for restitution awards for victims of child porn downloading offenses. This bill made it through the full Senate a little less than year after the Supreme Court issued a split decision on this matter in the Paroline case. Here are the basics of the response by Congress:
A bill named for two women whose childhood images were turned into heinous pornography was handily passed in the Senate on Wednesday. The Amy and Vicky Child Pornography Victim Restitution Improvement Act was approved by a 98-0 vote.
The measure gives hope to victims that they will finally be able to win major compensation from any single person who illegally viewed, made or distributed their images. Victims of child pornography and other sexual exploitation “ought to have access to full restitution from any single perpetrator for their losses,” said Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican.
The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.
The bill responds to a 2014 Supreme Court 5-4 ruling in Paroline v. United States that said people convicted of viewing, making or distributing child pornography should be ordered to pay a nontrivial amount of restitution — but it should fit the scale of the offense....
The Paroline case stemmed from a lawsuit filed by a woman known as “Amy Unknown” against Doyle R. Paroline of Texas, who was convicted of having two images of her in his child pornography collection. When the 5th U.S. Circuit Court of Appeals ruled in Amy’s favor and ordered Paroline to pay $3.4 million in damages to her, Paroline asked the Supreme Court to review his case. Paroline’s court-appointed attorney said after they won last year that he would contest any restitution award against his client.
Amy, now an adult, was sexually assaulted by her uncle when she was about 9 years old. The uncle put pictures of her rape online, and those images have been shared by pedophiles worldwide. “Vicky” is the pseudonym of another victim, whose father raped her as a child and took “orders” from men to make videos of her being bound and sodomized.
I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders.
A few (of many) prior posts on Paroline and child porn restitution issues:
- SCOTUS splits the difference for child porn restitution awards in Paroline
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Explaining why I am rooting so hard for "Amy" in Paroline
- Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline
Thursday, January 29, 2015
"The Eternal Criminal Record"
The title of this post is the title of this important new book by James B. Jacobs. Here is a description of the book via the publisher's website:
For over sixty million Americans, possessing a criminal record overshadows everything else about their public identity. A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person’s interactions with just about everyone else. The Eternal Criminal Record makes transparent a pervasive system of police databases and identity screening that has become a routine feature of American life.
The United States is unique in making criminal information easy to obtain by employers, landlords, neighbors, even cyberstalkers. Its nationally integrated rap-sheet system is second to none as an effective law enforcement tool, but it has also facilitated the transfer of ever more sensitive information into the public domain. While there are good reasons for a person’s criminal past to be public knowledge, records of arrests that fail to result in convictions are of questionable benefit. Simply by placing someone under arrest, a police officer has the power to tag a person with a legal history that effectively incriminates him or her for life.
In James Jacobs’s view, law-abiding citizens have a right to know when individuals in their community or workplace represent a potential threat. But convicted persons have rights, too. Jacobs closely examines the problems created by erroneous record keeping, critiques the way the records of individuals who go years without a new conviction are expunged, and proposes strategies for eliminating discrimination based on criminal history, such as certifying the records of those who have demonstrated their rehabilitation.
Monday, January 26, 2015
Could charter schools within the prison system help reduce recidivism?
The question in the title of this post is prompted by this interesting article from Georgia headlined "Gov. Deal wants new charter high schools for prison system." Here are excerpts:
Gov. Nathan Deal in the both the amended 2015 and 2016 budgets is [recommending the legislature devote] money to help lower the recidivism rate in Georgia’s prisons. He’s including over $15 million dollars for two new charter high schools in the prison system so inmates can actually earn a diploma as opposed to just a GED. He says seven out of ten Georgia inmates have neither.
“Education can open the door of opportunity while shutting the revolving door that has plagued our prison system for far too long,” says Deal.
The recommendation includes nearly 30 academic positions for the new schools which would begin with the 2015-2016 school year. Deal says the schools would partner with the newly renamed Georgia Career College System, formerly the state’s technical colleges, to teach vocational skills. He says private prisons would also be given incentives to do the same.
“With a high school diploma or a GED, these individuals will certainly be better equipped to get a job and hopefully able to assume a greater pursuit of a job opportunity in the future because they have this basic education behind them,” says Deal.
He’s also including money to help inmates better assimilate into society once released through a transitional housing program for those inmates considered at highest risk for reoffending. Another $5 million is being proposed to expand the state’s accountability courts to keep non-violent offenders out of prison.
Saturday, January 24, 2015
Another remarkable exoneration thanks only to NC Innocence Inquiry Commission
On this blog, I typically do not extensively cover or frequently discuss exonerations and criminal appeals based on actual innocence claims because, as some may know, I fear guilt/innocence concerns can at times distort sentencing procedures and policy debates focused only on indisputably guilty persons. But this new amazing story out of North Carolina, headlined "After 36 years, Joseph Sledge's unfamiliar feeling: normal," seemed especially blogworthy for various reasons.
Most significantly, I think, is that this remarkable NC story highlights the unique benefits resulting if (and perhaps only when) a jurisdiction has a special institution and special procedures for dealing specifically with innocence claims. Here are the basic of one remarkable story that is embedded in the broader realities of North Carolina's unique approach to innocence concerns:
Joseph Sledge looked out across Lake Waccamaw on Friday afternoon, shivering against a cold January rain and trying to embrace an unfamiliar feeling: normal. Sledge walked out of jail Friday for the first time in 36 years without the burden of handcuffs and shackles.
He is finally free. The state had been wrong about him in 1978, and in all the years since; he is no killer. At 70, he will begin again. “I’m full up on freedom,” Sledge said shyly, leaning over a menu at Dale’s Seafood, a lakeside restaurant in rural Columbus County.
Sledge is the eighth man freed through a unique process that forces the state to deal with prisoners’ claims of innocence. The North Carolina Innocence Inquiry Commission, created in 2006, examined Sledge’s innocence claim over the last 18 months, and in December, it voted that his case merited a possible exoneration.
On Friday afternoon, a trio of judges did just that. Jon David, the Columbus County district attorney, made their decision swift and easy; David told judges he had become convinced that Sledge was innocent.
As Superior Court Judge Tom Lock announced Sledge’s exoneration, a dozen photographers and reporters rushed toward Sledge and his attorneys. Sledge smiled slightly as his attorneys, Christine Mumma and Cheryl Sullivan of the North Carolina Center on Actual Innocence, pulled him close. Applause erupted....
Sledge ... stole some T-shirts from a department store in the early 1970s. A judge sentenced him to four years in a prison camp in rural Eastern North Carolina. In 1976, with just a year left in his sentence, he escaped from the White Lake Prison Camp one night after a beef with another inmate.
That very night, not 5 miles away, someone brutally murdered Josephine and Ailene Davis, a mother and daughter, who lived together in rural Bladen County. That horrible coincidence set the course for Sledge’s life.
Sledge’s exoneration is bittersweet. It comes after dozens of mistakes and casual dismissals of his pleas for help. David, the district attorney, ticked through the justice system’s blind spots in Sledge’s case. The system wasn’t what it is now, he said. No DNA testing was available. The best it had – microscopic hair comparison – could only determine that Sledge’s pubic hair was consistent with pieces left on one victim’s exposed torso. Sledge’s escape and the wild testimony of two jailhouse informants made it all seem too obvious during the 1978 trial, which had been moved to Columbus County.
David said Friday that he regretted the system’s weaknesses and any part that court officials played in it. “There’s nothing we regret more to our values as prosecutors than to believe an innocent person is in prison,” David said. He offered Sledge an apology.
Mumma, who first encountered Sledge’s case a decade ago, has had a hard time swallowing all of the ways the criminal justice system failed Sledge – and the amount of time it took to make it right. Clues that should have sent investigators to other suspects were disregarded. None of the nearly 100 fingerprints taken from the crime scene matched Sledge’s. Investigators also collected head hairs from the victims’ bodies, but Sledge had always shaved his bare.
During two decades, Sledge sent dozens of letters to judges, police officials and prosecutors asking that they find and test evidence from his case for DNA. Yet it took nearly 20 years for a clerk to find hairs that would prove his innocence. By happenstance, a Columbus County clerk climbed a ladder in late 2012 while cleaning the evidence vault; she found an envelope flat on the top shelf with the missing hairs. The clerks had been ordered to search for that evidence as far back as 2003.
Without the state’s new apparatus for testing innocence claims, Sledge might have remained in prison. The Center on Actual Innocence and the Innocence Inquiry Commission interviewed dozens of people, testing memories that had faded over decades. Commission staff discovered crime scene evidence and investigators’ notes that local sheriff’s deputies had said for years had been lost or destroyed. The commission spent $60,000 on forensic testing.
January 24, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
Wednesday, January 21, 2015
Should a court hearing be required anytime a registered sex offender seeks entry to a public school?
The question in the title of this post is prompted by this notable article from Virginia headlined "ACLU questions new sex offender bill." Here are the details:
Their faces and address are already public, now one Virginia lawmaker wants registered sex offenders to face public hearings before going inside schools. To have access to Virginia public schools, House Bill 1366 would require violent sex offenders to pay for a newspaper ad publicizing a personal court hearing. It would run once a week for two weeks. Then anyone could attend the hearing and testify against them.
The bills author, Delegate Jeff Campbell, says it’s about safety, but the ACLU says it crosses the line of civil rights. “The public hearing is simply an invitation for an angry mob to gather at a school and get in the way of a parent’s right to be involved in the education of his or her child,” said ACLU of Virginia’s Executive Director Claire Gastanaga.
Gastanaga said there is no real proof that registries and restrictions like this keep kids safer. He said the most direct impact of the bill would be on parents with kids in school who want to go and meet with the kids’ teachers.
Delegate Campbell disagrees: “I disagree totally, what it does is it gives parents of the other children a say in who is around their children.”... “The public’s right to know who is around their children and to have a say in whether they agree in that or not trumps that individual’s right to free access to the school,” he said.
Currently, sex offenders must inform school superintendents before they go inside a Virginia school. Delegate Campbell said there was an incident last year in Wise County where a parent did that and got permission to attend sporting events, but then started showing up to school at other times. Parents got upset and that is the reason for his bill.
A subcommittee unanimously passed the bill on Monday, but there is no set date yet for it to go before the full committee.
Because Virginia's court system is surely already pretty crowded, the burden this bill will create for state court personnel strikes me as significant and notable. A bit of research revealed that there are about 20,000 registered sex offenders in Virginia. Even if only 10% of that group has good reason to go to a public school each year, the Virginia court system is going to have to handle 2000 more annual hearing to consider (and supervise?) any school visit.
Friday, January 16, 2015
AG Holder announces notable new limits on civil forfeitures to fund local police
As reported in this Washington Post article, headlined "Holder limits seized-asset sharing process that split billions with local, state police," the out-going Attorney General today announce a notable new policy that ought to take some of the economic incentives out of some drug war enforcement activities. Here are the basics:
Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.
While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”
Holder’s decision follows a Washington Post investigation published in September that found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.
January 16, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack
Thursday, January 15, 2015
Fifth Circuit reverses computer filter lifetime supervised release condition for sex offender
A Fifth Circuit panel yesterday handed down an intriguing little ruling in US v. Fernandez, No. 14-30151 (5th Cir. Jan. 14, 2015) (available here), reversing a notable condition of supervised release. Here is how the ruling starts and ends:
In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”. At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child)....
In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet. Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.
Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”. In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.
January 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Friday, January 02, 2015
"Policing Public Order Without the Criminal Law"
The title of this post is the title of this intriguing new paper now available via SSRN authored by Charlie Gerstein and J.J. Prescott. Here is the abstract:
Millions of Americans every year are charged with and detained for “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are “enforced” prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; in fact, they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant.
Maintaining public order is an important civic function, yet these unmoored cases have serious long-term consequences for defendants, their families, and our criminal justice institutions. Many scholars have argued that vague terms and broad standards in defining public order crimes results in broad discretion that leads to abuse.
In this essay, we argue instead that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language by and large moot. Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means. To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.
January 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Monday, December 29, 2014
Pennsylvania Supreme Court declares state's sex offender registration regulations violate juve offenders' due process rights
Via How Appealing, I see that the Supreme Court of Pennsylvania issued this majority opinion in In the Interest of J.B., J-44A-G-2014 (Pa. Dec. 29, 2014), declaring unconstitutional part of the state's sex offender registration laws (over a lone justice's dissenting opinion). Here is a portion from the start and end of the majority opinion:
In this case, we consider the constitutionality of provisions of the Sex Offender Registration and Notification Act (SORNA) as applied to juveniles. 42 Pa.C.S. §§ 9799.10-9799.41. Pursuant to 42 Pa.C.S. § 722(7), we review this case directly from the order of the York County Court of Common Pleas holding the statute unconstitutional as violative of the ex post facto clause, protections against cruel and unusual punishment, and due process rights through the use of an irrebuttable presumption. In the Interest of J.B. et al., No. CP-67-JV-726-2010 (CP York Nov. 1, 2013). After review, we affirm the determination that SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption....
Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption.
December 29, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack
Friday, December 26, 2014
South Dakota legislator suggests using drug war proceeds to fund public defenders
This local article, headlined "Hickey: Use seized drug money for public defender," reports on some notable public advocacy by a public official concerning public defenders in South Dakota. Here are the details:
A Sioux Falls lawmaker wants to use seized drug money to help pay the legal defense bills of those who can't afford a lawyer, but the state's attorney general says counties should look elsewhere to save money on court-appointed attorney costs.
Rep. Steve Hickey, R-Sioux Falls, says the money in the state's Drug Control Fund is correctly used to tackle the problem of drug use, but he says he worries about the legal costs counties bear after the arrest. The fund is made up of money seized during drug investigations and money from the sale of seized property, such as vehicles.
"My thought is that we should put some of that money not just into catching more bad guys, but put some of it into the cost of defending them we're stuck with afterward," Hickey said. "We get excited about sobriety checkpoints and saturation patrols, but after those tickets get written, someone has to pick up the tab."
Hickey's bill would ask for a more thorough accounting of the money seized by law enforcement from suspected drug dealers and direct between 25 percent and 50 percent of it toward the legal fees amassed by counties. The fund is administered by Attorney General Marty Jackley's Office, which decides where the seized money is spent. "It seems to me that there's very little oversight," Hickey said....
Counties are legally obligated to offer court-appointed lawyers to the indigent. Local governments can ask that legal fees be repaid, but many bills go unpaid, either because defendants don't earn enough or own enough to pay or because they go to prison or jail.
Hickey's proposal comes alongside growing concerns over court-appointed attorney fees in Minnehaha County. Commissioners want judges to consider income guidelines when deciding whether to appoint a public defender, and they've offered a county employee to check defendants' income statements.
The state's largest county has spent $3.8 million on indigent defense this year, but reimbursements from defendants stand at $824,000. The county also has more than $26 million in liens on defendants who haven't paid their bill.
Commissioner Cindy Heiberger hasn't seen Hickey's proposal, but says any discussion about helping the counties that shoulder the burden of legal defense is welcome. "It sounds really good on the surface. Anything we can use to pay for court-appointed attorneys or court costs is something we should talk about," Heiberger said. But, she cautioned, "when we're taking money from one pot and moving it to another, we need to make sure the logistics make sense for everyone."
The notion of using seized drug money to pay for criminal defense doesn't sit well with Attorney General Marty Jackley. The drug control fund consists of money seized from suspected drug sales and other cash collected from auctioning off seized vehicles and other property. "I do not support using the profits of criminals to defend their activities," Jackley said.
The money pays the drug testing bills for cities and counties, Jackley said, and the remaining money is used to buy vehicles, camera systems and other items for local police and sheriff's departments. Giving some of the money to counties for indigent defense could force local agencies to bear the cost of drug testing and reduce the availability of funds for equipment upgrades and replacements.
In 2013, $70,514 was awarded from the drug control fund for law enforcement and prosecution costs in Sioux Falls and Minnehaha County. Overall in 2013, $643,722 was awarded from the drug control fund to local agencies. Drug control money pays an average of $60,000 per month to local law enforcement for drug testing, according to DCI records.
December 26, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, December 24, 2014
"Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction, 2009-2014"
The title of this post is the title of this notable new report from The Vera Institute of Justice. Here are excerpts from the report's summary:
Collateral consequences of criminal convictions are legion and present significant and often insurmountable barriers to housing, public benefits, employment, and even certain civil rights (e.g., voting rights) for people with criminal histories well after sentence completion.
Lessening the burden of post-punishment penalties has become a matter of significant bipartisan state-level legislative activity in recent years. In this report, Vera’s Center on Sentencing and Corrections provides (1) concise summaries of representative legislation, (2) an analysis of the limitations of current reforms, and (3) recommendations for making future efforts sustainable and comprehensive.
Since 2009, forty-one states and the District of Columbia, enacted 155 pieces of legislation to mitigate collateral consequences for people with certain criminal convictions. In reviewing this legislative activity, Vera found that states have pursed one or a combination of seven broad approaches to reform. They created or expanded expungement and sealing remedies; issued certificates of recovery; allowed for offense downgrades; built relief into the criminal justice process; ameliorated employment-related collateral consequences; improved access to information; and addressed discrete collateral consequences.
While efforts to remove or alleviate the impact of collateral consequences may indicate a broader shift in how the criminal justice system views law-breakers, vast numbers of post-punishment penalties remain in place and a closer look at recent legislation suggests that efforts do not go far enough. In particular:
- Reforms are narrow in scope;
- Relief mechanisms are not easily accessible;
- Waiting periods are long in many cases; and
- New rules restricting third-party use of criminal history are difficult to enforce.
Tuesday, December 23, 2014
Is US Rep. Grimm likely to advocate for federal sentencing reform following his felony plea?
The question in the title of this post is my first thought after reading this interesting Reuters story in the wake of a high-profile federal tax fraud plea entered today. The piece is headlined "U.S. Representative Grimm says will not resign after pleading guilty to tax fraud," and here are details:
U.S. Representative Michael Grimm of New York said he would not resign from Congress following his guilty plea on Tuesday to a federal felony tax charge. "As long as I'm able to serve, I'm going to," said Grimm, who noted he easily won a third term in November despite a 20-count federal indictment unveiled in April.
Grimm, a Republican, pleaded guilty in Brooklyn federal court to aiding the preparation of a false tax return in connection with a health food restaurant, Healthalicious, that he co-owned before his political career. "While operating a restaurant, we underestimated the gross receipts and used some of the money to pay employees off the books and some other expenses," Grimm said in court.
As part of a plea deal, Grimm, whose trial had been scheduled for February, also signed a statement of facts, admitting to concealing over $900,000 in gross receipts from 2007 to 2010 and lying during a 2013 deposition....
A Boehner spokesman said he would not comment until he has discussed the issue with Grimm. Grimm told reporters he has had "private discussions" with leadership but would not elaborate.
The 44-year-old former Marine and FBI agent, who represents Staten Island and parts of Brooklyn in New York City, faces a maximum of three years in prison when he is sentenced on June 8. His lawyers indicated they would seek a more lenient sentence.
Grimm told reporters he was accepting responsibility for a "mistake" that occurred before he joined Congress. "For the past four years, I've been a very effective, strong member of Congress," he said, adding that he had received many words of support from his constituents.
House members who plead guilty to a crime that carries two or more years in prison "should" refrain from voting on the floor or participating in committee business, according to House rules. The House could also vote to reprimand, censure or even expel Grimm, as it did in the case of Democratic Representative James Traficant, who was found guilty of taking bribes and other crimes in 2002 but refused to resign.
Prosecutors had accused Grimm of hiring illegal immigrants, paying staffers under the table and under-reporting how much he spent in wages. He was also charged with lying under oath about his practices while defending against a lawsuit brought by former Healthalicious employees.
The indictment grew out of a probe of Grimm's fundraising, morphing into one of the highest-profile prosecutions by the office of Brooklyn U.S. Attorney Loretta Lynch, who has since been nominated to become U.S. attorney general. Lynch in a statement said the plea made clear that U.S. authorities "will vigorously investigate and prosecute fraud wherever we find it, and that no one is above the law."
Given that the last three US Presidents have all admitted violating federal drug laws and have all been (reasonably?) accused of violating many more federal laws, I am moved by Rep Grimm's claims that his admission of violating federal tax laws in the past should not require him to give up his current job making new laws. Moreover, as the title of this post hints, I think there could be real value in having a member of Congress with personal experience with the federal criminal justice system as a defendant.
Tuesday, December 16, 2014
Should problematic police be on a registry like sex offenders?
The provocative question in the title of this post is drawn from this provocative new commentary by Ed Krayewski at Reason titled "Time for a Police Offenders Registry." Here are excerpts:
There's a moral obligation to keep bad cops off the streets. A job with a police department is not a right and shouldn't be treated like one. Police unions that push for permissive rules that end up protecting bad cops pose a serious public safety threat. Nevertheless, dismantling them where they've taken root is a difficult prospect even in the long-term. There are other ways to keep bad cops off the streets. The federal government, and state governments, ought to create and encourage the use of a police offender registry list. Such a list would register individuals who while employed as law enforcement officers were found unfit for duty or faced serious disciplinary issues they may have resigned to avoid. Just as any other component of comprehensive police reform, this won't eliminate excessive police violence, but it's a start.
When actually identified, a surprising (or not) number of officers involved in controversial, high-profile use of force incidents have previously disciplinary history. Officer Daniel Pantaleo, the New York City cop who put Eric Garner in a fatal chokehold, had been previously accused, at least twice, of racially-motivated misconduct, including strip searching a man in the middle of the street and allegedly hitting his testicles. The police union in New York City is among the strongest in the country. When a rookie cop shot Akai Gurley in apparent panic last month, he didn't think twice to reportedly contact his union rep first. A man lay dying in a stairwell for no other reason that he startled a rookie, and the fact that the officer called his union representative before calling for assistance isn't shocking enough to lead to the officer's termination. Even if it were, it would still be impossible to terminate the officer immediately. While all this is happening, the state of New York is on the verge of placing even more of the disciplinary regime that applies to cops under the purview of the police unions.
But not everywhere is the situation as hopeless as in New York City. In other parts of the country, cops can get fired relatively more easily. But it doesn't stop them from finding jobs elsewhere. Richard Combs, who was the sheriff and only cop in Eutawville, South Carolina, is now facing a murder charge for shooting a resident after an argument at Town Hall, but Combs had been previously terminated from the county sheriff's office for unspecified "unsatisfactory performance." In Cleveland, Ohio, the cop who shot 12-year-old Tamir Rice, mistaking the boy's toy gun for a real one, had been previously found too emotionally unstable and unfit to carry a firearm for law enforcement. In Georgia, the cop who shot and killed 17-year-old Christopher Roupe after the teen opened the door to his home holding a Wii controller, had been previously fired for multiple disciplinary problems including shooting at an unarmed person....
This is just a sampling of stories that received enough local attention to gain some prominence. The situation is unconscionable. Police found unfit for duty in one jurisdiction shouldn't be employed in another. Cops who resign to avoid disciplinary charges shouldn't slither their way into another department. Cops who cost taxpayers millions in lawsuit settlements shouldn't be able to expose taxpayers in other places to the same risk....
State governments, and the federal government, can help. Sex offender registries, which in some jurisdictions can lead to 19-year-olds who receive sexts from their 17-year-old friends being branded sexual predators for life, are an odious thing that makes a mockery of due process and the idea of the penal system as rehabilitation. But for some of the same reasons they would work to police the privilege of employment in law enforcement. Constitutionally, the federal government could not mandate states use its police offender registry list or operate their own. Yet because many of the most troublesome police departments (those in big cities and those in the sticks) also rely most on federal assistance in one way or another, the feds could induce compliance by tying it to such assistance. The federal government has done this before, though usually to push states to impose certain laws on its residents, not to protect residents from abusive government employees. Such a list wouldn't be a comprehensive solution to excessive police violence, but it's an important part, one that could work to lower the number of bad cops operating on the streets and begin to rebuild trust between police and the communities they're supposed to serve.
Tuesday, December 09, 2014
Lots more notable new posts at Collateral Consequences Resource Center
Last week I noted in this post all the notable posts appearing at the Collateral Consequences Resource Center. Just a week later, I see again that te CCRC has lots of new content on a bunch of issues not too often discussed in other like fora, such as these recent postings that seemed worth highlighting:
Sunday, December 07, 2014
Two astute commentaries about California's emerging Prop 47 issues
Opinion by Alexandra Natapoff, headlined "Prop 47 empties prisons but opens a can of worms":
California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.
The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”
There are a lot of great things about decriminalization. But it has a surprisingly punitive and racially charged dark side, and it doesn’t always work the way people think it does. The “non-jailable misdemeanor” — popular in many states — is still a crime that triggers arrest, probation and fines, criminal records and other collateral consequences. Even the gold standard of decriminalization — the “non-arrestable” civil infraction — can derail a defendant’s employment, education and immigration status, while the failure to pay noncriminal fines can lead to contempt citations and incarceration. And while decriminalization sounds egalitarian — after all, it’s a promise not to lock up people who would usually get locked up — sometimes it might actually make things worse for the poor and people of color....
It’s often hard to tell whether criminal justice reform is real progress or a shell game. Is California actually reducing incarceration, or is it quietly shifting prisoners around or repackaging punishment so as to avoid appointing lawyers for poor people? Decriminalization offers great promise, but it needs to be carefully monitored to make sure it lives up to its tantalizing name.
Editorial by Los Angeles Daily News, headlined "Prop. 47 sentencing changes are working out just as feared":
The saga of Proposition 47 and its troublesome implications is a crime story in which everybody left fingerprints except the real villains. The villains are California legislators, who kept their hands off the crucial challenge of criminal sentencing reform despite the need to address the state’s big problems with prison overcrowding and overly harsh policies that favor punishment over rehabilitation.
With lawmakers unwilling or unable to touch the issue, advocates picked it up and handed over the complex topic of sentencing reform to the public in the form of last month’s ballot initiative. Voters were asked to say yes or no to reducing felony sentences to misdemeanor penalties for many drug-possession and other criminal convictions.
The well-intended but dangerously flawed Prop. 47 passed easily with 59 percent of the vote. Now state and local legal authorities, including those in Los Angeles and San Bernardino counties, are having to confront the consequences....
In Humboldt County, the release of 35 percent of the county jail population has been accompanied by a reported rise in burglaries, thefts and vandalism. If that becomes a state trend, so much for Prop. 47 supporters’ title for the measure: The Safe Neighborhood and Schools Act.
It’s possible Prop. 47’s troubles can be worked out and it will achieve its goals. When FiveThirtyEight.com’s data journalists analyzed outcomes in states that have undertaken similar sentencing reforms, they found more positive than negative results at reducing prison populations and incarceration costs.
But the results in California will bear watching. Gov. Jerry Brown, who had planned to issue prison-reform proposals in January, other state officials and legislators must be ready and willing to act to make this work. Of course, if lawmakers had been willing to tackle the issue earlier, we wouldn’t be in this situation now.
Wednesday, December 03, 2014
Some notable new postings at the Collateral Consequences Resource Center
Busy with end-of-semester activities at the end of a busy semester, I have not been able to keep up lately with my usual review of significant postings from the various websites and blogs linked in my sidebars. But I have still made sure to keep up a "new kid" on the cyber-block, the Collateral Consequences Resource Center, because it covers a bunch of issues not too often discussed in other like fora. And these recent postings seemed especially worth highlighting:
Praise for Texas justice embracing "Right on Crime" from across the pond
This new BBC article, headlined "Why Texas is closing prisons in favour of rehab," provides a notable example of the rest of the world taking note (and praising) the "right on crime" movement. The piece is authored by a Danny Kruger, a former speechwriter for UK's prime minister David Cameron, and here are excerpts:
Coming from London to spend a couple of days in Texas last month, I was struck most of all by how generous and straightforward everyone was. Talking to all sorts of different people about crime and punishment, the same impression came across: We expect people to do the right thing and support them when they do. When they don't we punish them, but then we welcome them back and expect good behaviour again. It's not naive, it's just clear.
For years that straightforward moral outlook translated into a tough criminal justice system. As in the rest of the US, the economic dislocations of the 1970s, compounded by the crack epidemic in the 1980s, led to a series of laws and penal policies which saw the prison population skyrocket. Texas, for instance, has half the population of the UK but twice its number of prisoners.
Then something happened in 2007, when Texas Republican Congressman Jerry Madden was appointed chairman of the House Corrections Committee with the now famous words by his party leader: "Don't build new prisons. They cost too much." The impulse to what has become the Right on Crime initiative was fiscal conservatism — the strong sense that the taxpayer was paying way too much money to fight a losing war against drugs, mental ill-health and petty criminality.
What Madden found was that too many low-level offenders were spending too long in prison, and not reforming. On the contrary, they were getting worse inside and not getting the help they needed on release. The only response until then, from Democrat as well as Republican legislators, was to build more prisons. Indeed, Mr Madden's analysis suggested that a further 17,000 prisoners were coming down the pipe towards them, requiring an extra $500m (£320m) for new prisons.
But he and his party didn't want to spend more money building new prisons. So they thought of something else — rehab. Consistent with the straightforward Texan manner, the Congressional Republicans did not attempt to tackle what in Britain are known as "the causes of crime" — the socio-economic factors that make people more disposed to offend. Instead, they focused on the individual criminal, and his or her personal choices. Here, they believe, moral clarity and generosity are what's needed.
Though fiscal conservatism may have got the ball rolling, what I saw in Texas — spending time in court and speaking to offenders, prison guards, non-profit staff and volunteers — goes way beyond the desire to save money. The Prison Entrepreneurship Programme, for instance, matches prisoners with businesspeople and settles them in a residential community on release. Its guiding values are Christian and its staff's motives seem to be love and hope for their "brothers", who in turn support the next batch of prisoners leaving jail.
The statutory system is not unloving either. Judge Robert Francis's drugs court in Dallas is a well-funded welfare programme all of its own — though it is unlike any welfare programme most of the 250 ex-offenders who attend it have ever seen. Clean and tidy, it is staffed by around 30 professionals who are intensely committed to seeing their clients stay clean and out of jail, even if that means sending them back to prison for short periods, as Judge Francis regularly does when required....
Immediate, comprehensible and proportionate sanctions are given for bad behaviour, plus accountability to a kind leader and supportive community. This is the magic sauce of Right on Crime.
Far from having to build new jails for the 17,000 expected new inmates, Jerry Madden and his colleagues have succeeded in closing three prisons. I visited one by the Trinity River in Dallas, now ready for sale and redevelopment. They spent less than half the $500 million earmarked for prison building on rehab initiatives and crime is falling faster than elsewhere.
This, then, ticks all the boxes - it cuts crime, saves money and demonstrates love and compassion towards some of the most excluded members of society. It is, in a sense, what conservatives in America and Britain dream of — a realistic vision of a smaller state, where individuals are accountable for their actions and communities take responsibility for themselves and their neighbours. It is a more positive version of the anti-politics — anti-Washington, anti-Westminster — tide that seems to be sweeping the West.
December 3, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, November 30, 2014
Growing awareness of the limited efficacy of local sex offender residency restrictions
This new Wall Street Journal article highlights the new awareness of enduring problems with sex offender residency restrictions. The lengthy piece is headlined "Cities and Towns Scaling Back Limits on Sex Offenders: Officials Say Buffer Zones Don’t Prevent Repeat Offenses and Make Predators Harder to Track," and here are excerpts:
When Palm Beach County, Fla., was sued earlier this year over its housing restrictions for registered sex offenders, its attorneys took an unusual approach: They suggested the county relax its law.
The county’s commissioners — prompted largely by the lawsuit brought by a sex offender who claimed the limits rendered him homeless — voted in July to let such offenders legally live closer to schools, day-care centers and other places with concentrations of children. “We realized the law was costing the taxpayers money [for services for the homeless] and was causing more problems than it was solving,” said county attorney Denise Nieman.
In the mid-1990s, states and cities began barring sex offenders from living within certain distances of schools, playgrounds and parks. The rationale: to prevent the horrible crimes sometimes committed by offenders after their release. In October, for instance, officials charged sex offender Darren Deon Vann with murdering two women in Indiana. Mr. Vann, who is suspected of killing several others, pleaded not guilty.
Now, a growing number of communities are rejecting or scaling back such limits — out of concern that they don’t prevent repeat offenses, and, in some instances, may make sex offenders harder to track....
A 2013 Justice Department study that examined Michigan’s and Missouri’s statewide restrictions showed they “had little effect on recidivism.” Other studies have found the vast majority of sex-offense cases involving children are committed not by strangers but by family members or others with established connections to the victims, such as coaches or teachers.
About 30 states and thousands of cities and towns have laws restricting where sex offenders can live, while others are adding them. In March, a 1,000-foot buffer from parks took effect in San Antonio. In July, Milwaukee passed a law banning sex offenders from living within 2,000 feet of a variety of places where children gather....
Critics, however, say such moves do little more than score lawmakers political points and give an area’s residents a false sense of security. Some argue they can make communities less safe, by making it hard for offenders to find stable housing.
David Prater, district attorney of the county that encompasses Oklahoma City, said he and other state prosecutors have tried to get the state to relax its 2,000-foot buffer, to no avail. “No politician wants to be labeled the guy who lessens restrictions on sex offenders,” he said....
Some smaller towns are chucking restrictions, partly in the name of public safety. De Pere, Wis., a town of 23,000 south of Green Bay, tossed out its 500-foot buffer last year after reviewing data on its effectiveness, said several council members. The issue was reopened by some townspeople several months ago ,when a convicted sex offender moved across the street from a school for children with special needs. But the council didn’t budge. “You track where they live, you check in on them, but you let them live at home, where they’re comfortable and stable,” said Scott Crevier, a DePere city councilman. “I feel we’re actually safer than a lot of other towns in the state that have them.”
Tuesday, November 18, 2014
Ninth Circuit upholds injunction, on First Amendment grounds, blocking California law requiring sex offenders to report report online activities
As reported in this Bloomberg story, "California can’t enforce a law to combat sex trafficking because it tramples on free speech rights of sex offenders by requiring them to report online activities, such as their Twitter, e-mail and chatroom accounts, a U.S. appeals court ruled." Here are more of the ruling's basics via the press:
The San Francisco-based court today upheld a judge’s decision to block enforcement of a voter-approved law that was backed by former Facebook Inc. (FB) executive Chris Kelly and garnered support from more than 80 percent of California voters in 2012.
The measure, known as Proposition 35, isn’t clear about what accounts or Internet service providers offenders are required to report and targets online speech that could include blogging about politics and posting comments on news articles, the appeals court’s three-judge panel said today.
The law also harms sex offenders’ ability to engage in anonymous speech because it allegedly allows police to disclose their online identities to the public, the court said. Failure to report on Internet activity can lead to criminal sanctions.
A requirement that registered sex-offenders notify police within 24 hours of using a new Internet identity chills activity protected by the U.S. Constitution’s First Amendment, U.S. Circuit Judge Jay S. Bybee wrote in the unanimous ruling.
The ruling in Doe v. Harris, No. 13-15263 (9th Cir. Nov. 18, 2014) (available here), officially gets started this way:
California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation (“CASE”) Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person.” Id. § 290.015(a)(4)–(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider (“ISP”). Id. § 290.014(b).
Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.
Wonderful new on-line resource, Collateral Consequences Resource Center, now available
I am very pleased to be able to report on a very important addition to the criminal justice on-line universe, the Collateral Consequences Resource Center. This posting by Margy Love provides this background and something of a mission statement:
The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014. We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.
The legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects. The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation. Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served. Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind. Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention. People with a record are organizing to promote change.
The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: staff@CCResourceCenter.org.
Impressively, this new web resource (which I guess I will call CCRC) has a ton of terrific content already assembled at webpages dedicated to State-Specific Resources, Books and Articles, and Reports and Studies. And here are links to a few recent notable blog postings:
- More states rely on judicial expungement to avoid collateral consequences
- Minnesota project examines how different life would be with a criminal record
- Dismissed Charges Not Always the Best Outcome?
Tuesday, November 11, 2014
New York City mayor announces new policy concerning marijuana enforcement
As reported in this New York Times article, headlined "Concerns in Criminal Justice System as New York City Eases Marijuana Policy," the NYC's new mayor and old sherrif are bringing a new approach to marijuana enforcement to the Big Apple. Here are the basics:
Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.
Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.
The news, outlined by the mayor and his police commissioner, William J. Bratton, at Police Headquarters, marked the most significant criminal justice policy initiative by Mr. de Blasio since he was sworn in as mayor in January. While he stressed that he was not advocating the decriminalization of marijuana, Mr. de Blasio said the impact of enforcement on the people arrested and on the Police Department compelled him to rethink how the police handle low-level marijuana arrests.
“When an individual is arrested,” he said, “even for the smallest possession of marijuana, it hurts their chances to get a good job; it hurts their chances to get housing; it hurts their chances to qualify for a student loan. It can literally follow them for the rest of their lives and saddle young people with challenges that, for many, are very difficult to overcome.”
For a Police Department that has devoted enormous resources to tens of thousands of marijuana arrests a year, the shift in strategy should, the mayor said, allow officers to focus on more serious types of crime by freeing up people who would otherwise be occupied by the administrative tasks lashed to minor marijuana arrests.
But the change, detailed in a five-page Police Department “operations order” that is set to go into effect on Nov. 19, immediately raised questions and concerns in many corners of the criminal justice system. It directs officers who encounter people with 25 grams or less of marijuana, in public view, to issue a noncriminal violation in most instances, rather than arrest them for a misdemeanor....
As they headed into a meeting with departmental leaders to hear about the new policy, some police union leaders said the changes seemed to run counter to the “broken windows” strategy of policing, long championed by Mr. Bratton as a way to prevent serious crime by cracking down on low-level offenses. “I just see it as another step in giving the streets back to the criminals,” said Michael J. Palladino, the head of the city’s Detectives’ Endowment Association, the union representing police detectives. “And we keep inching closer and closer to that.”...
At the news conference, Mr. Bratton said officers would still have to use discretion. If marijuana was being burned or smoked, an arrest would be made, he said. If offenders had an “active warrant,” or were wanted, or could not produce proper identification, they would be taken to the station house, he said. Officials said violations would not constitute a criminal record. They said court appearances, within weeks of the violation, could lead to a fine of up to $100 for a first offense....
Critics have said the police and prosecutors have been improperly charging people with possession of marijuana in public view, often after officers ask them to empty their pockets during street stops.
In 2011, Raymond W. Kelly, then the police commissioner, issued an order reminding officers to refrain from such arrest practices. Mr. Bratton said such practices were not now in use and the problem had been fixed. By now, the number of marijuana arrests has decreased, roughly mirroring the drastic reduction in the frequency of police stop, question and frisk encounters.
Of the 394,539 arrests made last year, marijuana arrests totaled slightly more than 28,000, or a little less than 10 percent of all arrests made in the city. That is down from 50,000 a few years ago.
Cross-posted at Marijuana Law, Policy & Reform
Thursday, November 06, 2014
New California report finds many challenges in sex offender monitoring
As reported in this local piece from California, "two-thirds of parole agents who monitor sex offenders juggle caseloads that exceed department standards, a state corrections review reported Wednesday in response to an Orange County murder case." Here is more about the report's findings:
Agents are supposed to supervise between 20 and 40 parolees, depending on how many are high-risk offenders. But more often than not, the state Office of the Inspector General found, agents are overburdened. At 14 of the state’s 37 units responsible for supervising paroled sex offenders, all agents had bigger caseloads than department policies allow. The inspector general surveyed the units’ caseloads in August.
The report also criticized the effectiveness of GPS monitoring and housing restrictions enacted through Jessica’s Law, a 2006 ballot measure. The inspector general tied the restrictions to a spike in homelessness and strained resources....
The state Sex Offender Management Board recommended four years ago that agents supervise no more than 20 paroled sex offenders. But the inspector general said corrections officials haven’t adopted the lower threshold.
The inspector general report was requested by state Sen. Darrell Steinberg after the April arrests of Steven Gordon and Franc Cano, two transient sex offenders registered to live in Anaheim. Steinberg was head of the Senate at the time and chairman of its rules committee....
Steinberg didn’t request that the inspector general probe how Gordon and Cano were supervised by parole agents. Previously, the office did just that after the high-profile convictions of sex offenders Phillip Garrido and John Gardner. This time, Steinberg focused on broader questions about the impact of GPS monitoring and housing restrictions.
The Department of Corrections and Rehabilitation estimates that it spent about $7.9 million to monitor more than 6,000 paroled sex offenders with GPS devices in the last fiscal year, a decline from $12.4 million four years earlier.
The detailed 80+-page report from the California Office of Inspector General, which is titled "Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions," is available at this link.
November 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack
Tuesday, November 04, 2014
"Profiles in Probation Revocation: Examining the Legal Framework in 21 States"
The title of this post is the title of this notable new research report just released by the Robina Institute of Criminal Law and Criminal Justice. Via the Robina Institute at this webpage, here are the basics of the report's coverage and contents:
The Robina Institute is pleased to present the publication of Profiles in Probation Revocation: Examining the Legal Framework in 21 States, a close look at probation revocation practices in twenty-one states and the Model Penal Code. The first publication of the Probation Revocation Project, Profiles on Probation Revocation, allows for a comparison across selected jurisdictions. This report reveals a wide variation in probation practices in the United States and we hope it will further the dialogue on community supervision and probation practices.
This publication is the first in a series that will be produced by the Probation Revocation Project. The focus of this publication is the legal framework of probation: that is, how have the legislature and courts defined the purpose and functions of probation in each state? The focus of one or more subsequent publications will be how probation actually works within that legal framework.
In addition, I received from one of the authors of the report this more extended summary of its coverage:
The report compiles — in a convenient format — the results of a yearlong research project conducted by the Robina Institute on the laws relating to probation revocation in 21 American states. By leafing through the volume’s four-page “legal profiles,” readers can easily see how much variation exists in statewide laws of probation and probation revocation, while zeroing in on issues of greatest interest. Whether a reader’s jurisdiction is included in the report’s 21 states or not, the legal profiles contain a wealth of information that will allow for comparison with one’s own system.
The focus of the report is probation revocations and what leads up to them. Each legal profile describes a particular state’s approach to issues collected under twelve headings concerning probation. These are: Definition and Purpose, Forms of Probation, Length of Term, Early Termination, Supervision, Conditions, Modification of Conditions, Extension of Probation Term, Revocation Procedures, Legal Standard for Revocation, Revocation and Lesser Sanctions, and Appeal. The selected topics embrace aspects of the use of probation that may contribute to (or, conversely, reduce) revocation rates or the numbers of probationers who enter revocation proceedings.
Each profile begins with the nature of the probation sanction itself, including lengths of term and the burdens placed on probationers through sentence conditions. These are the early precursors of revocation rates. The profiles also focus on what happens during the probation term, and how the law allows the terms of conditions of probation to lighten or grow more restrictive in individual cases. For example, legal arrangements during the probation period that encourage probationers to succeed — or at least do not impede their success — will have an impact on revocation numbers. Finally, the profiles give close attention to each state’s probation revocation process itself, including the legal grounds for revocation, the identity of the ultimate decisionmaker (judicial versus administrative), rules for hearings, procedural rights that accrue to the probationer, and the range of sanctions that may be imposed after a sentence violation is proven or admitted.
The report relies on official legal source materials such as statutes, court rules, caselaw, administrative rules and policies, and publicly-available documents. The report seeks to describe, more or less, the “law-on-the-books,” while realizing that the official sources do not necessarily reflect actual practices of probation supervision and revocation on the ground. Even so, the report provides new and valuable comparative information about statewide legal superstructures for probationary sentences. While not a full portrait of what happens in individual states, the report illuminates crucial legal boundaries within which local and case-specific discretion must be exercised.
Sunday, November 02, 2014
Following-up in Maryland after court rules some sex offenders not subject to new registration requirements
This lengthy new Baltimore Sun article, headlined "Court ruling upends Maryland's sex offender registry," provides an interesting follow-up a few months after a state court ruling disrupted the state's sex offender registry. Here are excerpts:
The memory of the break-in still stirs terror three decades later: The Rockville woman was ordered out of bed at knifepoint by a teenage burglar, who commanded her to stare out a window as he started to take off her robe. Before anything else could happen, the woman's husband, who had been tied up in the bathroom, broke his bonds and violently tackled the teen, leaving both of them with stab wounds. That ended Robin Lippold's 1981 summer crime spree, which included other burglaries and a rape.
But it did not eliminate the woman's fear, which lingered long after the pre-dawn attack. That dark emotion surfaced again last week, when she learned that Lippold had been removed from Maryland's sex offender registry, a searchable public database that lists each person's residence and place of employment.
The 50-year-old Lippold is among 1,155 sex offenders who have been removed from the registry since February, according to data obtained by The Baltimore Sun through a public records request. Almost 400 of them are rapists, including a man who raped a blind teenage girl in a mall parking lot and a man who raped a 67-year-old woman who was walking her dog.
Most have been stripped out because of a decision by Maryland's highest court. That ruling handed a victory to advocates who said the registries were unfairly punitive, but has troubled legislators and upset victims.... The Court of Appeals ruling — that laws governing the registry subjected some offenders to a form of retroactive punishment — has radically altered Maryland's system of tracking people convicted of sex crimes.
Experts say there's little evidence that the registries help keep the public safe, and can unfairly punish offenders. Some judges around the United States have agreed that the registries amount to unconstitutional punishment in some cases. In Maryland, a prominent defense lawyer is continuing to fight in the courts, seeking to get more names removed from a list that she says stigmatizes too many people.
But the lists are popular among legislators, who see them as an option to keep the public safe and give people a reassuring way of looking up who among their neighbors or colleagues has been convicted of sex offenses. Sen. James Brochin, a Baltimore County Democrat, said of the Maryland appeals court judges, "What they've done is sickening … it's mind-boggling. The court's shown a total disregard for the community."...
While the registries have many supporters, researchers have found little evidence that they reduce the rates at which sex offenders commit new crimes. "Those policies were based on myths: Once an offender, always an offender," said Elizabeth J. Letourneau, a sex crime researcher at the Johns Hopkins University. "They are unlikely to be harming community safety by removing people like that from a registry."
Lisae C. Jordan, an advocate for victims of sex crimes, said accurately measuring recidivism rates can be difficult because many offenses go unreported. But she also noted that registries have never been a way to stop all offenses because most would-be rapists have never been convicted.
What the studies do show, experts say, is that having to register makes it harder for ex-convicts to successfully find work and have productive lives. In postings on an Internet forum critical of the Maryland registry, offenders have described their struggle getting work..... In other cases, communities have turned to vigilante justice. Last week, a Baltimore woman was sent to prison for six years for her part in the beating death of a sex offender.
Now Maryland's registry is being trimmed because the Court of Appeals ruled in 2013 that people who committed crimes before it was created had been subjected to fresh punishment in violation of the Maryland Declaration of Rights.... The Court of Appeals was fragmented but in a patchwork of opinions, ultimately sided with Haines. Applying the laws retroactively violated the "fundamental fairness and the right to fair warning" about the consequences of a crime guaranteed by the state constitution, Judge Clayton Greene Jr. wrote.
Courts across the country have split on whether states should be allowed to stock their registries with people who committed crimes long ago....
Nancy S. Forster, a Baltimore attorney representing a number of people challenging Maryland's registry laws, said she has other cases in the works that could lead to more offenders being taken off the list. The attorney general's office is examining the cases and will fight in court when it sees the opportunity.
And some lawmakers said they plan to craft legislation that might soften the impact of the Court of Appeals ruling. Possible options include creating a registry that's only available to law enforcement or using a risk assessment system to flag the most dangerous offenders....
Now that the judges have had their say, Sen. Nancy Jacobs said, the debate now should focus on the victims of sex crimes. Jacobs, a Cecil and Harford County Republican, pushed hard to toughen sex crime laws in 2009 and 2010, but is leaving the Senate. "We need to care more about the victims than about the people who sexually assaulted these children," she said. "They need help."
Sunday, October 26, 2014
More drug war collateral damage: "Law Lets I.R.S. Seize Accounts on Suspicion, No Crime Required"
The title of this post includes my extra bit of spin on the headline of this notable front-page New York Times article, which gets started this way:
For almost 40 years, Carole Hinders has dished out Mexican specialties at her modest cash-only restaurant. For just as long, she deposited the earnings at a small bank branch a block away — until last year, when two tax agents knocked on her door and informed her that they had seized her checking account, almost $33,000.
The Internal Revenue Service agents did not accuse Ms. Hinders of money laundering or cheating on her taxes — in fact, she has not been charged with any crime. Instead, the money was seized solely because she had deposited less than $10,000 at a time, which they viewed as an attempt to avoid triggering a required government report. “How can this happen?” Ms. Hinders said in a recent interview. “Who takes your money before they prove that you’ve done anything wrong with it?”
The federal government does. Using a law designed to catch drug traffickers, racketeers and terrorists by tracking their cash, the government has gone after run-of-the-mill business owners and wage earners without so much as an allegation that they have committed serious crimes. The government can take the money without ever filing a criminal complaint, and the owners are left to prove they are innocent. Many give up.
“They’re going after people who are really not criminals,” said David Smith, a former federal prosecutor who is now a forfeiture expert and lawyer in Virginia. “They’re middle-class citizens who have never had any trouble with the law.”
On Thursday, in response to questions from The New York Times, the I.R.S. announced that it would curtail the practice, focusing instead on cases where the money is believed to have been acquired illegally or seizure is deemed justified by “exceptional circumstances.”
Richard Weber, the chief of Criminal Investigation at the I.R.S., said in a written statement, “This policy update will ensure that C.I. continues to focus our limited investigative resources on identifying and investigating violations within our jurisdiction that closely align with C.I.’s mission and key priorities.” He added that making deposits under $10,000 to evade reporting requirements, called structuring, is still a crime whether the money is from legal or illegal sources. The new policy will not apply to past seizures.
October 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (21) | TrackBack
Saturday, October 25, 2014
"Jury Says Castrated Sex Offender Should Be Freed"
The title of this post is the headline of this notable AP story out of California. Here are the intriguing details:
A Southern California jury on Friday found that a castrated sex offender who preyed on young girls should no longer be considered a sexually violent predator and is eligible for release. Jurors in Orange County determined that Kevin Reilly, 53, does not need to remain locked up at a state mental hospital. He could be released as early as Friday, his lawyer said, but online jail records show he remained in custody as of mid-afternoon.
"There was simply no evidence he was likely to reoffend," said Holly Galloway, deputy public defender. "What the jury did was amazing because they followed the law and that's a hard thing to do with someone with his history, but it's the right thing to do."
Reilly served time in prison for sex offenses committed in the 1980s and 1990s and has been locked up in a state mental hospital since 2000 under a California law that enables authorities to forcibly commit sex offenders they believe will reoffend. He paid to be surgically castrated in 2003 to help control his pedophilia and completed a treatment program for sex offenders in 2010. State-appointed evaluators found he was not likely to reoffend, Galloway said, adding that Reilly also completed a bachelor's degree and master's degree.
Prosecutors argued that Reilly is still dangerous and that the effects of his castration, which aimed eliminate his sex drive, can be mitigated through testosterone injections. Michael Carroll, deputy district attorney, said Reilly did not confess to molesting one of his victims until three years ago and there were conflicting reports about what he told his evaluators and the court.
"I don't think he was honest during his treatment," Carroll said. "I think he continued to lie and attempted to manipulate because his ultimate purpose, I think, is to get out of the hospital, not necessarily to prevent creating any future victims." Reilly served time for committing lewd acts on four young girls over more than a decade, and later conceded he had abused at least three others, Carroll said. Most of the girls were between 4 and 8 years old.
He is required to register as a sex offender once he is released, and is planning to move to Utah, where he will participate in an outpatient treatment program for sex offenders and look for an accounting job, Carroll said.
Stories like this one provide support for my general view that juries, serving often as the conscience of a community, can and should be more often trusted to make difficult sentencing-type determinations and should not be relegated only to serving as a limited (and infrequently used) fact-finder in the operation of modern criminal justice systems.
October 25, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack
Friday, October 24, 2014
ACLU flies suit against Florida county's latest sex offender residency restrictions
As reported in this local article, headlined "ACLU sues over rule on where sex offenders can live in Miami-Dade," a notable new lawsuit has been brought against a community that has a long sad history of difficulties with sex offender residency realities. Here are the details:
For five years, Miami-Dade County’s sex offender law has sparked national headlines, as homeless parolees have been forced to move from street corners to parking lots because of a law that prohibits them from squatting near public spaces where children gather. Now, the dozens of homeless sex offenders — shuffled from under the Julia Tuttle Causeway to a Shorecrest street corner and finally to a parking lot near train tracks and warehouses just outside Hialeah — have a voice arguing on their behalf.
On Thursday, the national chapter of the American Civil Liberties Union filed a lawsuit in federal court reasoning that Miami-Dade County and the state Department of Corrections have violated the offenders’ basic rights to personal safety, and to maintain a home. The suit doesn’t name the ACLU’s clients, referring to them as John Doe 1, 2 and 3.
“It undermines public safety. It’s harder to find a job and maintain treatment. Housing stability is just as critical to these folks as to anyone else,” said Brandon Buskey, staff attorney for the Criminal Law Reform Project at the ACLU in New York City.
But the man behind the controversial county ordinance said no one has the right to demand where they live. Ron Book, the powerhouse state lobbyist and chair of the Miami-Dade Homeless Trust, said the courts have upheld the residency restrictions, and the ACLU is simply regurgitating an issue that’s been dealt with. “The U.S. Supreme Court has said they’re entitled to live places that don’t endanger the health, safety and welfare of law-abiding citizens of the U.S. But they’re entitled to take their $350 to the courthouse,” Book said of the ACLU. “I don’t support those with sexual deviant behavior living in close proximity to where kids are.”
The 22-page lawsuit, filed in the U.S. Court’s Southern District, calls the county ordinance vague, says it doesn’t allow sex offenders their due process, and adds that it leaves them in a vulnerable position and unsafe. “These individuals, who frequently subsist on meager incomes after being released from prison, are unable to locate stable, affordable housing in Miami-Dade County. This transience is primarily because the ordinance arbitrarily renders off-limits broad swaths of housing,” according to the complaint....
At the center of the battle between the ACLU and Miami-Dade is a law approved in 2010 called the Lauren Book Safety Ordinance. Lauren Book, Ron Book’s daughter, was sexually molested by a trusted nanny for six years, starting when she was 11. Lauren Book-Lim, now married and 29, is an advocate for the sexually abused. The 2010 ordinance was created after nearly 100 offenders were sent scrambling from squalid living conditions under the Julia Tuttle Causeway. The new law doesn’t allow offenders on parole within 2,500 feet of schools, parks, bus stops, or any other place children might congregate. Before the law, Miami-Dade followed a less restrictive state-created 1,000-foot law.
But the county ordinance had unintended consequences: It left sex offenders with few living options and almost immediately became a hot-button issue around the nation, even the world. There’s even a Wikipedia page about it.
Miami-Dade’s sexual offender homelessness issue first came to light in late 2009, when images of 92 homeless sex offenders living in plywood and cardboard sleeping quarters tucked under the Julia Tuttle Causeway at the height of the recession were splashed across TV. At the time, the county was still following the 1,000-foot state law.
Though the homeless offenders had been living there for about three years, embarrassed officials put up “No Trespassing” signs under one of the main causeways linking Miami and Miami Beach, and tore down the rickety structures. A promise to spend $1 million to find housing for the offenders didn’t solve the problem. The new, tougher, 2,500-foot ordinance was created mainly because of the Julia Tuttle fiasco....
Howard Simon, executive director of the Florida chapter of the ACLU said no entity should be allowed to strip anyone of their basic rights and force them into “dangerous and squalid conditions.”
“This is the second chapter of the same sad story,” he said. “The county provoked international outrage when it forced people to live under the Julia Tuttle bridge. Now it’s forcing people to live alongside railroad tracks.”
More details about the lawsuit and links to the filings are available at this ACLU page.
October 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack
Saturday, October 18, 2014
Reviewing concerns about the efficacy and fairness of sex offender registried
AlJazeera America has this lengthy new piece about sex offender registries headlined "Sex-offender laws are ineffective and unfair, critics say: Experts say public registries don't reduce assault — and sex offenders are increasingly challenging the rules in court." Here are excerpts:
Few groups are as widely despised as sex offenders. Activities prosecuted as sex offenses vary by state, but can include public urination, consensual sex between teenagers, streaking, prostitution, downloading child pornography and rape. In some states, law-enforcement officials distribute flyers to notify neighbors of registrants’ convictions. Some registrants are prohibited from using the Internet. In 2010, the U.S. Supreme Court ruled that indefinite detention at psychiatric hospitals — or “civil commitment” — of sex offenders is constitutional.
The first law requiring sex offenders to register publicly and for life was passed in California in 1947 and targeted gay men, according to Andrew Extein, executive director of the Center for Sexual Justice. But many of today’s laws have their origins in the late 1970s, when feminists and social conservatives worked together to publicize high-profile “stranger danger” attacks on children, says Roger Lancaster, anthropology professor at George Mason University and author of “Sex Panic and the Punitive State.”
Beginning in the mid-1990s, several laws went into effect that changed how sex-offense cases were prosecuted. In 1994, states were required to create databases of sex offenders. Two years later, Megan’s Law, named for a 7-year-old in New Jersey who was brutally raped and murdered by a neighbor with two previous sex convictions, allowed states to make those registries public. States passed their own versions of the law; in some cases, they required that neighbors be notified of paroled offenders’ previous convictions. Later laws moved those sex-offender databases online, created a national registry, required lifetime registration of people 14 years old and up and imposed harsh mandatory minimum sentences for crimes involving children.
But almost 20 years after the passage of Megan’s Law, criminologists and judges, along with a burgeoning movement of sex-offender registrants and their families, are challenging not only the constitutionality of the laws but their effectiveness in reducing sexual assault. In January, a California court ruled in favor of a paroled sex offender who had argued that city and county “child-safety zone” ordinances prohibiting people in the registry from using parks, beaches and similar recreation areas were an unconstitutional form of banishment. In April, the state Supreme Court upheld the ruling by declining to review it.
Thirty-three states have opted out of at least some aspects of the law that brings registries online. Many, like New York, take issue with the 2006 federal law that requires states to list every person convicted of a sex offense on a public registry. Some, like Maryland, are considering removing the names of people who committed less serious offenses.
Critics say the registries’ emphasis on public tracking of sex offenders after their release from prison does not make people safer. Ninety-five percent of those arrested for sexual offenses have no prior convictions. Recidivism rates are low: A study conducted by the Canadian government looked at data from 10 studies on sex-offender recidivism in Canada, the United Kingdom, Wales and the United States and found that “after 15 years, 73% of sexual offenders had not been charged with, or convicted of, another sexual offence.”
In most sex-abuse cases — 93 percent, according to a Department of Justice report — the child knows the perpetrator. Nearly half of abusers are family or extended-family members. A 2008 American Psychological Association report concurs: “Despite the public perception that sex offenders are strangers stalking playgrounds and other areas where children congregate, the majority of offenses occur in the victim’s home or the home of a friend, neighbor, or relative.”
A 2008 Justice Department study examined recidivism among sex offenders before and after the law requiring community notification. “Megan’s Law showed no demonstrable effect in reducing sexual re-offenses,” it concluded.
Says a 2009 report by Princeton University and the Brookings Institution: “None of these high-profile strategies has been built on empirical evaluation, and virtually all have gone to national scale without research or even much pilot testing.”
What registration laws do is make it nearly impossible for those listed to find or keep jobs and housing, advocates say. Residency restrictions in California have created a housing crisis for convicted sex offenders. According to the California Sex Offender Management Board, the number of homeless registrants has increased 217 percent, to 6,500, over the past eight years....
Supporters of registering and limiting the movement of paroled sex offenders, including Tony Rackauckas, one of the first district attorneys in California to support countywide child-safety zones, however, are not persuaded by these arguments and say the registries do prevent attacks. “We’re not going to know how many kids were not molested or groomed for later sexual contact as a result of this law,” he told The New York Times.
Sunday, October 12, 2014
Documenting a notable California legal crusade against sex offender restrictions
This lengthy local article, headlined "Pair seeks repeal of sex-offender laws in California," provides a detailed review of a notable effort to take down via court challenges local sex offender restrictions. The piece merits a full read, and here are a few highlights:
A crusading civil rights attorney and a registered sex offender have partnered in a legal battle that has prompted dozens of California cities to repeal or revise what the pair believe are unconstitutional ordinances restricting the activities of sex offenders.
Since March, Santa Maria attorney Janice Bellucci and Frank Lindsay, a 62-year-old water-treatment specialist from Grover Beach and registered sex offender for 35 years, have filed 18 lawsuits in federal court challenging ordinances in cities from Stockton down to National City.
To date, Bellucci has settled 15 of the lawsuits, while 38 other cities have avoided litigation by agreeing to repeal their ordinances. Six other cities have voluntarily suspended enforcement of their ordinances, while ordinances in another 18 cities are still under review.
“The way I look at it is that I’m protecting the Constitution of the United States as well as the state of California,” said Bellucci, president of California Reform Sex Offender Laws, a nonprofit she launched three years ago as an affiliate to the national Reform Sex Offender Laws organization.
While Bellucci believes she’s fighting for the rights of oppressed sex offenders, others say she’s endangering the state’s youth. “As an elected official and as a mother, I’m concerned about the health and safety of our young people who don’t have a voice,” said Carson Councilwoman Lulu Davis-Holmes. Carson is one city sued by Bellucci that plans to fight the lawsuit. “Our kids did not make the choice to be molested,” Davis-Holmes said. “I personally think we need to do more to protect those who cannot protect themselves,”
Bellucci’s flurry of lawsuits was prompted by a 4th District Court of Appeal’s decision in January that found sex offender ordinances in Orange County and the city of Irvine cannot impose restrictions more stringent than state law, which only restricts sex offenders who are on parole and whose victims were under the age of 14 from visiting public parks without the express permission of their parole agent.
In addition to the suits she filed with Lindsay, Bellucci has filed two lawsuits on her own, challenging ordinances in Canyon Lake and Commerce. Those complaints do not name Lindsay as a plaintiff because ordinances in those cities do not apply to sex offenders whose convictions are as old as Lindsay’s.
In April, the state Supreme Court declined a petition by the Orange County District Attorney’s Office to review the appellate court ruling, leaving it intact. The appellate court ruling, coupled with the spate of litigation initiated by Bellucci, could have a major impact on the lives of California’s 107,913 registered sex offenders, roughly 14 percent of the nation’s 774,600, as cities and counties are forced to either repeal their ordinances or make them uniform with state law.
This companion article, headlined "Sex-crimes convict says registration has ruined his career, endangered his life?," provides a profile of the sex-offender who is the plaintiff in much of the discussed California sex offender litigation.
Wednesday, October 01, 2014
"The Curious Disappearance of Sociological Research on Probation Supervision"
The title of this post is the title of this new paper available via SSRN. The piece strikes me as timely, intriguing and important. It is authored by sociologist Michelle Phelps, and here is the abstract:
At the start of the prison boom, scholars in the U.S. vigorously debated the future of “alternative” sanctions, particularly community supervision, and whether they represented a true avenue for potential decarceration or a widening of the net of social control. Community supervision, particularly probation, was central to these debates and the empirical literature. Yet as the carceral state ballooned, sociological scholarship on punishment shifted almost entirely to imprisonment (and, to a lesser extent, parole supervision), despite the fact that probationers comprise nearly 60 percent of the correctional population.
This article invites criminologists to turn their attention to sociological or macro-level questions around mass probation. To help start this new wave of research, I provide an intellectual history of sociological research on probation and parole, review the national-level data available on probationers and probationer supervision today, and outline an agenda for future research.
Tuesday, September 23, 2014
Split NJ Supreme Court holds that state's sex offender GPS tracking is punishment subject to ex post facto limits
As reported in this local article, headlined "Some sex offenders can't be forced to wear GPS monitors, N.J. Supreme Court rules," the top state court in the Garden State issued a significant constitutional ruling concerning GPS tracking of sex offenders. Here are the basics:
New Jersey cannot force sex offenders to wear GPS tracking devises if they were convicted before the monitoring program was signed into law seven years ago, the state Supreme Court ruled in a split decision today.
The court voted 4-3 to uphold an appellate panel's decision that said it was unconstitutional for the state Parole Board to require George C. Riley to wear the ankle monitor when he was released from prison in 2009 after serving 23 years for attempted sexual assault of a minor.
Justice Barry Albin wrote today that the Riley, 81 of Eatontown, should not be subject to the 2007 law because it constitutes an additional punishment that was not included in the sentence he already served.... A spokesman for the Parole Board did not respond when asked how many released sex offenders could be affected by the ruling.
Riley was convicted of trying to have sex with an 11-year-old girl in 1986. At the time, New Jersey law did not allow a sentence that included parole for life. But while Riley was in prison, the state enacted Megan's Law in 1994, requiring sex offenders to not only register with local authorities upon release but be placed under parole supervision for life. Then, in 2007, Gov. Jon Corzine signed the Sex Offender Monitoring Act, requiring the state's most dangerous sex offenders to wear GPS devises.
When Riley was released two years later, court papers say, he was not subject to any parole supervision. But he was designated a Tier III offender under Megan's Law — which applies to those who are considered a high risk for committing another offense. Under that tier, Riley was subject to "Internet registration and the most comprehensive degree of community notification," court papers say.
Six months later, though, Riley was told he would need to wear the pager-sized monitor on his ankle 24 hours a day and 7 days a week and carry a cell phone-sized tracking unit when he left his home, the papers say The devise must also be plugged into an electrical outlet to be charged one to two hours each day, the papers say. During that time, Riley could not move further than the length of the cord. And he was assigned a parole officer with access to his home. Riley would be subject to prosecution for a third-degree crime if he didn't comply....
The Supreme Court ... agreed with the lower court that the "retroactive application" of Riley to the GPS program violates the ex post facto clauses in the U.S. and state Constitutions, which safeguard against imposing "additional punishment to an already completed crime." The court also rejected the state's argument that the GPS monitor is not punitive but "only civil and regulatory."
"Parole is a form of punishment under the Constitution," Albin wrote for the high court. "SOMA is essentially parole supervision for life by another name." Albin added that "the disabilities and restraints placed on Riley through twenty -four-hour GPS monitoring enabled by a tracking device fastened to his ankle could hardly be called 'minor and indirect.'" The court also rejected the state's assertion that the Parole Board made its decision as a result of the Megan's Law designation, saying that designation "was based primarily on Riley’s previous sexual-offense convictions."
The full ruling in Riley v. New Jersey State Parole Board, No. A-94-11 (NJ Sept. 22, 2014) is available at this link.
September 23, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack
Wednesday, September 10, 2014
The title of this post is the title of this notable and interesting new paper by Alexandra Natapoff now available via SSRN. Here is the abstract:
As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike.
But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions.
The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.
September 10, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
Sunday, September 07, 2014
Editorial laments how some part of Ohio are "addicted to prisons"
The Toledo Blade has this lengthy new editorial headlined "Addicted to Prisons" that discusses lots of interesting facets of Ohio's criminal justice system. Here are excerpts:
Stark differences in judges, as well as access to local treatment programs, have created appalling disparities in how justice is handed out to addicts and nonviolent drug offenders in Ohio. Two cases involving heroin addicts, portrayed today in a front-page column by The Blade’s deputy editorial page editor, Jeff Gerritt, show what Ohio is doing right and what it continues to do wrong.
In Hardin County, Kaylee Morrison, 28, was just sentenced to four years in prison, where she will cost taxpayers $100,000 while failing to get the help she needs to manage her addiction. In neighboring Marion County, Clayton Wood, 29, was sentenced to drug court, where he gets treated in his community while working full time and paying taxes.
Ohio’s heroin and opioid epidemic has rocked the state’s criminal justice system, flooding its crowded prisons and burdened courts with addicts and minor drug offenders who would be more effectively — and inexpensively — treated in their communities. Of the more than 20,000 people entering Ohio’s prisons each year, the share of inmates admitted for opioid- and heroin-related crimes has increased more than 400 percent in the past 13 years.
Moving Ohio to a more cost-effective, rational, and humane criminal justice system will take, among other things, more drug courts, sentencing and code reforms, and a significant shift of resources from state prisons to community-based treatment programs....
Statistical profiles of the state’s incoming inmates underscore the need for change. They show many low-level offenders with short sentences that community-based sanctions could handle more effectively at a fraction of the $25,000 a year it costs to imprison them.
More than 5,000 people a year go to prison in Ohio for drug crimes, mostly low-level offenses. Almost the same number of incoming prisoners — most of them addicts — have never been arrested for, or convicted of, a violent offense. Moreover, nearly 45 percent of those who go to prison each year in Ohio — almost 9,000 people — serve less than a year. That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison.
Incarcerating minor drug offenders is costing Ohio tens, if not hundreds, of millions of dollars. Ohio taxpayers get little return on that investment, as untreated addicts return to their communities unequipped to cope with their disease.
Adult felony drug courts, which combine treatment with more-frequent but shorter sanctions, offer an excellent alternative. Residents of every Ohio county should have access to one. Still, such specialized dockets, with assigned probation officers, exist in fewer than a third of Ohio’s 88 counties....
With or without drug courts, judges need sufficient resources in their communities to treat drug addiction and serve as cost-effective alternatives to incarceration. Such programs give judges more sentencing options.
Nearly 10,000 offenders leave Ohio’s prisons each year with an intense history of addiction. As part of its re-entry efforts, DRC must ensure they are linked to treatment programs immediately after they’re released, including support groups and medication-assisted treatment.
Finally, the administration of Gov. John Kasich and the Ohio Supreme Court, through symposiums and other outreach effects, should educate all Ohio judges on how addiction works. Likewise, the General Assembly must make sure that Ohio’s legal code doesn’t mandate inappropriate or ineffective penalties and sanctions for offenses that are rooted in addiction.
The growing number of addicts and low-level drug offenders in Ohio’s costly and crowded prisons is a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its opioid and heroin epidemic. Changing course will require a far greater understanding of addiction among those who make and execute Ohio’s laws and criminal code, and a seismic shift in resources and investments from the state’s prisons to its struggling communities.
The article referenced in the first paragraph of this editorial is headlined "Criminalizing addiction: Whether drug users go to prison depends on where they live," and it is available at this link.
Friday, August 29, 2014
"Mass Probation: Toward a More Robust Theory of State Variation in Punishment"
The title of this post is the title of this intriguing new paper by Michelle Phelps available via SSRN. Here is the abstract:
Scholarship on the expansion of the criminal justice system in the U.S. has almost exclusively focused on imprisonment, investigating why some states lead the world in incarceration rates while others have restrained growth. Yet for most states, the predominant form of punishment is probation, and many seemingly progressive states supervise massive numbers of adults on community supervision. Drawing on Bureau of Justice Statistics data from 1980 and 2010, I analyze this expansion of mass probation and develop a typology of control regimes that theorizes both the scale and type of formal punishment states employ. The results demonstrate that mass probation rearranges scholars’ conclusions about the causes and consequences of the penal state.
Saturday, August 23, 2014
Residency restrictions keep NY sex offenders confined after serving their senetence
The problematic consequences of some sex offender residency restrictions is highlighted in this recent New York Times article headlined "Housing Restrictions Keep Sex Offenders in Prison Beyond Release Dates." Here is how the article starts:
Dozens of sex offenders who have satisfied their sentences in New York State are being held in prison beyond their release dates because of a new interpretation of a state law that governs where they can live.
The law, which has been in effect since 2005, restricts many sex offenders from living within 1,000 feet of a school. Those unable to find such accommodations often end up in homeless shelters.
But in February, the Department of Corrections and Community Supervision, which runs the prisons and parole system, said the 1,000-foot restriction also extended from homeless shelters, making most of them off limits because of the proximity of schools.
The new interpretation has had a profound effect in New York City, where only 14 of the 270 shelters under the auspices of the Department of Homeless Services have been deemed eligible to receive sex offenders. But with the 14 shelters often filled to capacity, the state has opted to keep certain categories of sex offenders in custody until appropriate housing is found.
About 70 of the 101 sex offenders being held are New York City residents, prison authorities said. Some have begun filing habeas corpus petitions in court, demanding to be released and claiming the state has no legal authority to hold them.
The onus of finding a suitable residence upon release is on the sex offender; the state authorities will consider any residence proposed, but will reject it if it is too close to a school or violates other post-release supervision conditions.
Before February, those who could not find suitable housing would typically be released to shelters like the men’s intake center at 30th Street and First Avenue in Manhattan, once known as the Bellevue Men’s Shelter. But the corrections department changed its approach this year, after reports by a state senator, Jeffrey D. Klein, detailing how sex offenders were living within 1,000 feet of a school, often in homeless shelters. Prison authorities say they are holding the sex offenders until the shelter system notifies them of additional space in the few shelters far enough away from schools, such as on Wards Island.
Friday, August 22, 2014
"The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration"
The title of this post is the title of this intriguing new paper authored by Douglas Evans with the Center for Research and Evaluation at the John Jay College of Criminal Justice. Here is the paper's summary:
Financial debt associated with legal system involvement is a pressing issue that affects the criminal justice system, offenders, and taxpayers. Mere contact with the criminal justice system often results in fees and fines that increase with progression through the system. Criminal justice fines and fees punish offenders and are designed to generate revenue for legal systems that are operating on limited budgets. However, fines and fees often fail to accomplish this second goal because many offenders are too poor to pay them.
To compound their financial struggles, offenders may be subject to other financial obligations, such as child support payments and restitution requirements. If they do not pay their financial obligations, they may be subject to late fees and interest requirements, all of which accumulate into massive debt over time. Even if they want to pay, offenders have limited prospects for meaningful employment and face wage disparities resulting from their criminal history, which makes it even more difficult to pay off their debt.
An inability to pay off financial debt increases the possibility that offenders will commit new offenses and return to the criminal justice system. Some courts re-incarcerate offenders simply because they are unable to settle their financial obligations. Imposing financial obligations and monetary penalties on offenders — a group that is overwhelmingly indigent — is not tenable. States often expend more resources attempting to recoup outstanding debt from offenders than they are able to collect from those who pay. This report explores the causes and effects of perpetual criminal debt and offers solutions for encouraging ex-offender payment.
August 22, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3) | TrackBack
Thursday, August 21, 2014
Pennsylvania Superior Court upholds (most of) sentence requiring former state Supreme Court Justice to write apology
As reported in this local Pittsburgh Post-Gazette article, an intermediate state appellate court upheld most (but not quite all) of the notable sentencing terms imposed on former Pennsylvania Supreme Court Justice Joan Orie Melvin. Here are the basic details of a lengthy and interesting sentencing ruling:
The state Superior Court today affirmed the criminal conviction of former state Supreme Court Justice Joan Orie Melvin, as well as that of her sister, Janine Orie. The panel also affirmed the part of Melvin's sentence requiring her to send apology notes to her former staff and fellow judges in Pennsylvania, but it eliminated the requirement that she do so on a picture taken of her following sentencing in handcuffs.
"The trial court unquestionably staged the photograph for maximum effect," wrote Judge Christine Donohue. "At the time it was taken (immediately after sentencing), Orie Melvin was no longer in police custody and was otherwise free to go home to begin house arrest. She was not in restraints at that time, and the trial court directed that she be placed in handcuffs only to take the photograph.
"The trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues."
The Superior Court panel said it would enforce the idea of writing apology letters because, it "adresses the trial court’s intent to rehabilitate her by requiring her to acknowledge her wrongdoing."
As part of its 114-page opinion, the court also reversed the order of Common Pleas Judge Lester Nauhaus, who in November stayed Justice Melvin's criminal sentence in its entirety pending appeal.
Justice Melvin was found guilty of six of seven counts against her, including theft of services, conspiracy and misapplication of entrusted property. Judge Nauhaus ordered her to serve three years of house arrest, pay a fine, work in a soup kitchen and write the letters of apology.
"The Scarlet Letter of the Law: A Place for Shaming Punishments in Arizona"
The title of this post is the title of this paper by Michael Lee Dynes and Henry Edward Whitmer recently posted on SSRN. Here is the abstract:
Trends in penological methods come and go, changing as a society’s attitude shifts, knowledge increases, and experience grows. A recent trend in modern sentencing methods has demonstrated a renewed interest in shaming punishments. Supporters of this trend point to the apparent ineffectiveness of a general system of fines, probation, and incarceration; they see a need for more specifically tailored punishments as a reason to promote shaming punishments. Opponents argue that society was wise to abandon most types of shaming punishments.
The purpose of this Article is to further the discussion regarding punishment options available to courts and to consider a wider use of shaming punishments in certain circumstances. Shaming punishments may be particularly effective if they are tailored to criminals convicted of specific crimes, especially criminals having middle to high socioeconomic class status and who may lose social standing if their criminal activities are made public. This Article begins with a brief history of shaming as punishment, followed by examples of modern shaming. Next, this Article explains and considers the criticisms of judicial sanctions designed to induce shame in an offender, and it discusses penological justifications for shaming. Finally, the Article discusses potential uses for shaming punishments in Arizona and recommends that Arizona courts expand the use of shaming punishments — as an addition to current statutorily-available punishments — for criminals of mid to high socioeconomic status.
Tuesday, August 19, 2014
Washington appeals court strikes down sign-holding shaming sanction as statutorily unauthorized
Regular readers know I am always intrigued by novel punishments, especially in the form of shaming sanctions. Consequently, I was pleased when a helpful reader altered me to a notable new Washington appellate court opinion striking down a notable shaming sanction. Here is how the short opinion in Washington v. Button, No. 44036-9-II (Wash. App. Div. II Aug. 18, 2014) (available here), gets started:
Charlotte Ann Button appeals a sentence condition requiring her to stand on a street corner holding a sign stating, "I stole from kids. Charlotte Button." Button contends that the trial court lacked authority to impose this condition and that it violated her rights under the First and Eighth Amendments of the United States Constitution. Because there is no statutory authority for the sign-holding condition, we need not reach Button' s constitutional challenges, and we remand for the trial court to strike the sign-holding condition from her judgment and sentence.
Sunday, August 17, 2014
Noting a legal mess with sex offender registries that is not ok in OK
This local article, headlined "Confusion Continues Over Sex Offender Registry In Oklahoma," spotlights some of the legal challenges that can arise when a jurisdiction keeps tinkering with its sex offender registration laws. Here are excerpts:
After years of revisions laws concerning Oklahoma sex offenders, there is still confusion over the offender registry. Seven years ago, Oklahoma amended the state's Sex Offender Registration Act that requires the Department of Corrections to assess offenders by assigning them to one of three risk levels.
A sex offender's level determines how long they have to register. "Except, this is the confusing part, unless your case was before 2007, and if it was before 2007, those rules don't apply to you unless aggravated applies to you," said defense attorney David Slane. "The legislature has changed the rules repeatedly, then the Department of Corrections is trying to interpret it to thousands of people, and in the meantime, the average policeman is trying to figure out what am I supposed to do, am I supposed to arrest this individual or not."
Slane said the rules are not as black and white as they used to be and calls it legal chaos. Last month, a convicted sex offender was arrested in Edmond for public intoxication. He had been living by a school and told police the 2007 law prevented him from having to re-register as a sex offender. We tried looking the offender up on the Oklahoma Sex Offender Registry, but he wasn't even listed.
The confusing laws are troubling for parents. "Of course it concerns me, you know, especially, when you have little kids around, I would like to know who is living next door to me," said Ivan Alvarez or Tulsa. Stephanie Rodriguez of Amarillo, said she's used the App "MobilePatrol" to see a list of sex offenders nearest her....
There are currently more than 7,000 offenders on the Oklahoma Sex Offender Registry. The Department of Corrections say it is currently reviewing about 1,000 sex offender cases.
Friday, August 15, 2014
More effective Slate coverage of extremes of (and problems with) sex offender registries
As noted in this prior post, this week Slate has published a series of commentaries spotlighting areas in which sex offender registries have become extreme and problematic. All four pieces in the series are now available, and here are the full titles and links to these pieces:
Tuesday, August 12, 2014
"Sex Offender Laws Have Gone Too Far"
The title of this post is the headline of this notable new Slate commentary authored by Matt Mellema, Chanakya Sethi, and Jane Shim which appears to be the first in a series. Here are excerpts:
[The] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, signed by President Bill Clinton in 1994, ... used federal dollars to push every state to create a [sex offender] registry. It worked. Today, all 50 states and Washington, D.C., have them. Since then, Congress has also passed several related pieces of legislation, including two major statutes. Megan’s Law, enacted in 1996, required that the police give the public access to some sex offender registry data, such as an offender’s name, photograph, and address. In 2006, the Sex Offender Registration and Notification Act toughened the standards for who must register and for how long, and it upped the consequences of registration by requiring, for example, periodic in-person visits to police.
The upshot, experts say, is that the United States has the most draconian sex registration laws in the world. As a result, the number of registrants across the nation has swelled—doubling and then doubling again to 750,000 — in the two decades since Jacob’s Law passed, according to data collected by the Center for Missing and Exploited Children....
Is the American approach to sex registration working? Who goes on the registries, for how long, and for what kinds of crimes? Do the answers suggest that they are helping to keep kids safe — or sweeping in too many people and stoking irrational fears?
In seeking answers to those questions, over the last several months, we were surprised to find that one of the sharpest — and loudest — critics of the ballooning use of registries is [Jacob's mother] Patty Wetterling. “These registries were a well-intentioned tool to help law enforcement find children more quickly,” she told us. “But the world has changed since then.” What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.
The logic behind the past push for registries rested on what seem like common sense assumptions. Among the most prominent were, first, sex offenders were believed to be at a high risk for reoffending — once a sex offender, always a sex offender. Second, it was thought that sex offenses against children were commonly committed by strangers. Taken together, the point was that if the police had a list, and the public could access it, children would be safer.
The problem, however, is that a mass of empirical research conducted since the passage of Jacob’s Law has cast increasing doubt on all of those premises. For starters, “the assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,” said Melissa Hamilton, an expert at the University of Houston Law Center, pointing to multiple studies over the years. “It’s a myth.”
Remarkably, while polls show the public thinks a majority, if not most, sex offenders will commit multiple sex crimes, most studies, including one by the Department of Justice, place the sexual recidivism rate between 3 and 14 percent in the several years immediately following release, with those numbers falling further over time. Which number experts prefer within that range depends on how they define recidivism. If you count arrests as well as convictions, for example, the rate is higher, because not all arrests lead to convictions. And if you distinguish among sex offenders based on risk factors, such as offender age, degree of sexual deviance, criminal history, and victim preferences — instead of looking at them as a homogenous group — you may find a higher or lower rate. Rapists and pedophiles who molest boys, for example, are generally found to have the highest recidivism rates. Nevertheless, the bottom line is clear: Recidivism rates are lower than commonly believed.
And in contradiction of the drive to crack down after a random act of sexual violence committed by a stranger, the data also shows that the vast majority of sex offenses are committed by someone known to the victim, such as a family member....
In a series for Slate, we’ll spotlight three areas in which the growth of registries has been unexpected — and, we suggest, unwise.
Tuesday, August 05, 2014
Judge denies Florida sex offender's request to be physically castrated
As reported in this local article, a judge in Florida has felt compelled to reject a sex offender's notable request for a notable alternative punishment. Here are the details:
Lester Leroy Williams is serving ten years in prison for sexually battering a child. Back in 2008, he was also sentenced to 4.5 years of probation. Recently, the 35-year-old Williams made a bizarre request: He wants the state to physically castrate him.
In a letter Williams wrote at the Union Correctional Institution in Raiford, he asked Fifth Judicial Circuit Court Judge Hale Stancil to modify his sentence to include castration at the expense of the state. But Stancil denied the unusual request this past Tuesday, stating his court didn't have jurisdiction to rule over the case.
"In 32 years, I have never had this request before," said Stancil, who spoke about the case for the first time to New Times. "I know there is chemical castration, but I've never had an inmate ask to be physically castrated before. I don't think I have authority as a judge to order such a thing."...
Florida already allows certain sex offenders to receive medroxyprogesterone acetate (MPA) treatment as part of their rehabilitation. MPA, an artificial hormone, is normally used to treat symptoms of menopause in women, but when used by men, it decreases testosterone to pre-puberty levels. MPA has been used on sex offenders for years as a way of reducing the chances of recidivism by diminishing the sexual urges of men who have long histories of committing sex crimes.
According to Florida law, courts must sentence repeat offenders of sexual battery to MPA treatment but may choose to administer it to first-time offenders. The treatment does not replace or reduce any other penalty the court could impose, and the courts can order the treatment to last up to life....
The law stipulates though that instead of undergoing the chemical form of castration, sex offenders may -- of their own volition -- ask a court for physical castration, which is what Williams has done. Though the legal leeway seems to exist, it is rarely chosen -- Williams may be the first in Florida to request it even though he isn't even required to have MPA treatment.
"Sex offenders are wretched," said Maryam Sweirki, 25, a Miami advocate for victims of sexual assault. "If he can't handle his penis, then I'm for his decision to take his weapon away."
However, critics of castration believe it to be a cruel and unusual punishment that violates human and reproductive rights; with other critics arguing the law that allows for MPA castration, though it applies to both genders, is unequal in punishment because it has a greater impact on males. Some of the side-effects related to the drug (besides decreased sexual urges) are: a loss of body hair, hot and cold flashes, impotence, depression, thrombosis, and weight gain.
Though it has been shown to decrease the number of reoffenders, some opponents further argue that castration isn't a panacea for all sex offenders because some of them are motivated to sexually abuse because of intense feelings of hatred and hostility, rather than sexual desire.
Some related older posts:
- Isn't chemical castration worth trying if it works?
- "Sex-Offending Teacher Asks for Castration"
- Alabama legislators discussing castration and other novel punishments for sex offenders
- Are there reliable data on the efficacy of chemical castration?
- "Europeans Debate Castration of Sex Offenders"
- "Argentina province OKs chemical castration for rapists"
- Huff Post commentary urging stiffer sentences and chemical castration for sex offenders
- Virginia state senator urging study of physical castration for sex offenders
- After high-profile child rapes, Koreans talk of physical castration and harsher sentencing for sex offenders
- "Sex offender offers to castrate himself for lighter sentence"
Monday, July 07, 2014
"Do Residency Bans Drive Sex Offenders Underground?"
The very important question in the title of this post is the headline of this discussion (with lots of links) by Steven Yoder at The Crime Report. Here is an excerpt:
California hasn’t been alone in its tough approach to ensuring that formerly incarcerated sex offenders pose no danger after they are released. As part of a wave of new sex offender laws starting in the mid-1990s, about 30 states and thousands of cities and towns passed such residency restrictions — prompting in turn a pushback from civil liberties advocates, state legislators and registrants themselves who argued the restrictions were not only unduly harsh but counterproductive.
But a court decision in Colorado last year could mark a shift in momentum. In the Colorado case, Stephen Ryals, a high school soccer coach convicted in 2001 for a consensual sexual relationship with a 17-year-old student, was sentenced to seven years’ probation and put on the state sex offender registry. Eleven years later, in 2012, he and his wife bought a house in the city of Englewood. But the police department told him he couldn’t live there because of a city ordinance prohibiting sex offenders from living within 2,000 feet of schools, parks and playgrounds — a law that effectively made 99 percent of its homes and rentals off limits to offenders. Englewood police also warned offenders that even in the open one percent, if they contacted a homeowner whose property wasn’t for rent or for sale, they could be charged with trespassing.
Ryals sued, and last August a federal court concluded that the city’s ban went too far. The judge ruled that it conflicted with the state’s existing system for managing and reintegrating sex offenders and could encourage other towns and cities to do the same, effectively barring offenders from the entire state. Englewood has appealed, but two of the state’s five other cities that have residence bans have softened their restrictions since the decision....
In California, scores of cities are rolling back their restrictions after an Orange County court ruled last April in favor of registrant Hugo Godinez, who challenged the county over its ordinance barring sex offenders from entering parks. Godinez, convicted for a misdemeanor sex offense in 2010, was arrested the following year for what he said was mandatory attendance at a company picnic in a county park. In that case too, a state appeals court decided that the county’s ordinance usurped the state’s authority. The appeals court ruling was upheld by the state’s highest court.
Since the Godinez decision, 28 California cities that have similar “presence” restrictions, which ban offenders from entering places like libraries and parks, have repealed those rules. Another 24 say they are revising their ordinances, according to Janice Bellucci, a California attorney.
Since the April decision, Bellucci, who represents the advocacy group California Reform Sex Offender Laws, has sent letters demanding repeal to cities with presence restrictions. She also has sued a dozen other cities that haven’t changed their rules since the decision.
And this year, California’s Supreme Court could make an even bigger ruling — whether to toss the state’s 2,000-foot law itself. A Los Angeles County Superior Court judge found it unconstitutional in 2010, but the city appealed. The judge cited an increase in homelessness among registrants as a key reason. Statewide, the number of homeless registrants has doubled since the law passed in 2006, according to the 2011 Sex Offender Management Board report.
At least two other states — Rhode Island and New York — have been sued since 2012 over their own residency laws.
One finding in the Ryals’ case in Colorado case could resonate in other states. The judge found compelling a 2009 white paper by Colorado’s Sex Offender Management Board concluding that residency bans don’t lower recidivism and could actually increase the risk to the public. According to the paper, that’s because they drive offenders underground or toward homelessness, making them harder for police and probation officers to track....
Those 2009 findings led the Colorado board to go further in a report this January, which recommended that state lawmakers consider legislation prohibiting cities and towns from enacting their own offender residency rules.
Two other states have moved in that direction. The Kansas legislature banned local residency restrictions in 2010. And in New Hampshire, the state House of Representatives has twice approved a bill that would bar local ordinances, though it’s died both times in the state Senate. Bellucci argues that there’s more to come in other states. The “pendulum of punishment,” she claims, is starting to swing the other way.
“For a long time, ever-harsher sex offender laws were being passed and there was no one opposing them,” she told The Crime Report. “After more than a few lawsuits, elected officials are realizing that there’s a downside to this.”
July 7, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (24) | TrackBack
Thursday, June 26, 2014
"What Is Criminal Restitution?"
The title of this post is the title of this notable new article by Cortney Lollar now available via SSRN. Here is the abstract:
A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore no longer serves its traditional purpose of disgorging a defendant’s ill-gotten gains. Instead, restitution has become a mechanism of additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections normally attaching to criminal proceedings.
This Article deploys a novel definition of punishment to situate restitution alongside other forms of punishment. Like all forms of punishment, restitution is imposed subsequent to a criminal allegation, pursuant to a statute motivated by morally condemnatory intent, and resulting in a substantial deprivation or obligation. Because restitution has become a form of punishment, this Article argues that judges should recognize criminal restitution for what it is — victim compensation imposed at the state’s request as condemnation for a moral wrong — and extend to defendants in restitution proceedings all the constitutional protections they enjoyed in earlier criminal proceedings. This means submitting restitution to a jury for determination pursuant to the Sixth Amendment, and subjecting it to the excessive-fines analysis of the Eighth Amendment.
Monday, June 16, 2014
Second Circuit rejects array of challenges to lengthy extension of sex offender registration requirement
For a number of years, sex offenders consistently lost in state and federal courts when challenging various sex offender registration requirements and other restrictions on various grounds. In recent years, however, it seems at least a few registered sex offenders are having at least a little success with court challenges to new sex offender registration requirements that seem especially punitive or onerous. But a Second Circuit panel ruling today in Doe v. Cuomo, No. 12-4288 (2d Cir. June 16, 2014) (available here), provides a useful reminder of the uphill battle registered sex offenders face in court. Here is how the opinion starts:
John Doe appeals from the judgment of the United States District Court for the Eastern District of New York (Amon, C.J.) granting summary judgment in favor of the Governor of the State of New York and the Acting Commissioner of the State of New York Division of Criminal Justice Services on Doe’s as-applied constitutional challenges to the enforcement of certain amendments to the New York State Sex Offender Registration Act. The amendments we are asked to review were enacted after Doe pleaded guilty to misdemeanor attempted possession of a sexual performance by a child, as a result of which he was classified as a level-one sex offender required to register under SORA. The amendments extended the registration requirement for level-one sex offenders from ten years to a minimum of twenty years and also eliminated the ability of level-one sex offenders to petition for relief from registration. Doe argues, among other things, that requiring him to comply with these post-plea amendments violates the Ex Post Facto Clause and the Fourth Amendment, and deprives him of due process and equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983. We disagree and affirm the judgment of the District Court.
Notably, the defendant Doe in this case seems reasonably sympathetic for a registered sex offender: his offense was a misdemeanor charge stemming from possessing a few CP images back in 1999, and he fully complied with all registration requirements for a decade. But, though the defendant presented an array of constitutional claims to argue he should not now be subject to a new extended registration requirement, the Second Circuit said he was Doe out of luck.
Saturday, June 14, 2014
Ohio legislature wisely considering move to make ignition locks mandatory for DUI offenders
Though I often advocate against lengthy federal mandatory minimum prison terms, I am not categorically opposed to legislative sentencing mandates when there is good reason to believe that the particulars of the mandate will likely save lives and have a limited impact on human liberty and the pursuit of happiness. Consequently, I was very pleased to see this story in my local paper today, headlined "All drunken drivers may be subject to safeguard," discussing a proposal in Ohio to make ignition locks mandatory for all drunk driving offenders. Here are the details:
Ohio lawmakers are considering requiring first-time drunken-driving offenders to have an ignition breathalyzer installed on their cars to confirm their sobriety during a six-month penalty period. The law now allows judges to order the ignition interlocks, but the House bill would make their use mandatory. Offenders convicted twice within six years must use the devices.
The bill sponsor, Rep. Terry Johnson, R-McDermott, cites federal figures that ignition-interlock devices reduce DUI re-arrest rates by 67 percent. About 25,000 first-time offenders are convicted each year in Ohio. The devices would replace a system in which first-time DUI offenders are not allowed to drive for 15 days and then can obtain limited driving privileges to travel to work, school and medical appointments.
“There is nothing to ensure compliance and nothing to ensure sobriety unless they happen to get caught again,” Johnson said. “This allows the offender to continue working and to minimize disruption to his life while ensuring public safety to the extent we are reasonably able to do so.”
A change in the bill last week also would require those charged with DUI but convicted of lesser offenses, such as physical control of a vehicle while intoxicated, to install the machines in their cars....
Only about 5,000 Ohioans, including repeat DUI offenders, are required each year to use ignition interlocks, said Doug Scoles, executive director of Ohio MADD. Twenty states now require their use by first-time offenders. “Requiring the use of ignition interlocks for all convicted drunk drivers will help prevent repeat offenses and, in so doing, save lives,” Scoles said.
The State Highway Patrol reports 341 people died in drunken-driving crashes last year. Seventy-seven people have been killed so far this year, 38 fewer that at the same time in 2012.
The bill is dubbed “Annie’s Law” in memory of Chillicothe lawyer Annie Rooney, who was killed last year by a drunken driver now serving eight years in prison. Her family has campaigned for passage of the bill. Lara Baker-Morrish, chief prosecutor for the city of Columbus, calls the legislation “a very good idea.”
“It does curb the behavior we’re trying to get at, and it has been proven to save lives,” she said. Courts would have to find ways to monitor the increase in ignition-interlock reports on drivers and find funding to ensure devices are made available to those who can’t afford installation and monitoring, she said.
I hope my old pal Bill Otis is heartened to hear of my support for a legislative sentencing mandate. I also hope those who advocate forcefully for rigid forms of gun control and for drug control recognize that that drunk drivers often pose a greater threat to innocent lives and the pursuit of happiness than even drunk gun owners or heroin dealers and that clever technologies, rather than crude prohibitions, may be the most politically wise and practically workable means to reduce these threats.
June 14, 2014 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack