Monday, April 14, 2014

Would embrace of "judicial corporal punishment" help remedy mass incarceration?

The question in the title of this post is prompted by this provocative new commentary by John Dewar Gleissner and given the headline "Who is biased against prison and sentencing reform?".  Here are excerpts:

Private prison companies and the guards’ labor unions are biased, of course.  Politicians do not wish to appear soft on crime.  Some communities need the jobs prisons provide. The public is biased about crime generally, and believes crime rates are going up when they are actually declining.  Many want prison to be horrible.  Who can blame crime victims? Taxpayers dislike money going to prisons. Law-abiding people do not have much in common with prisoners.  Businesses don’t sell much to prisoners.  Prison industries lose money and cannot succeed with government control.

The media prefer sensational stories about egregious criminal behavior. Once the offender is sentenced, the story usually ends. Prisoners do not have access to the internet.

Incarceration is hidden from the eyes of the people, harmful to the morals of prisoners and expensive.  Cultural, generational and religious bias prevent us from crediting our ancestors or other countries with effective crime-control techniques....

Attacking the supply of illegal drugs did not work.  The costs of fully supporting 2.3 million inactive welfare recipients, America’s prisoners, finally caught our attention.  The Constitution is the standard in conditions of confinement litigation.  But when the Constitution was adopted, massive incarceration as we now know it did not exist.  Back then, judicial corporal punishment was constitutional; it was approved of or used by all the presidents carved into Mt. Rushmore.

Incarceration is all Western civilization has known for several generations.  As the death penalty declines, most of us think of prison as the nearly exclusive serious punishment method.  Criminal justice systems focus on the single, inflexible, expensive and inexorable dimension of time.  Most Americans are shocked by the idea of judicial corporal punishment, which is invariably depicted as cruel, perverted or unjust in movies and TV.

Science proves that rehabilitation, restitution and deterrence are not often achieved by lengthy incarceration.  But some violent offenders deserve their long prison sentences. Prisons will not be abolished.  Real bad folks need to stay behind bars.

We think society moves forward.  Reformers are supposed to be “forward-looking.”  Belief in continual social progress ignores history.  Society periodically degenerates into barbarism, disorganization, bankruptcy, genocide, war and revolution.  Scientific study of changed values sometimes takes decades before conclusions are reached and legislation enacted. Our belief in social progress is accompanied by rejection of biblical principles in favor of unproven secular values.

We do not often enough look in the Bible for answers. If we did, the relatively simple solution to ending massive incarceration would be obvious: Deuteronomy 25:1-3. We could cut the American prison population in half. Modern behavioral and neurological science can and would confirm the superior effectiveness of traditional judicial corporal punishment. Believe it or not, judicial corporal punishment was largely abolished in the U.S. because it was too effective.

Judicial corporal punishment is in public, less expensive, much faster and repeatable. Its last use in the United States was to punish wife-beating without diminishing family income. In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz wrote, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”

April 14, 2014 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Sunday, April 13, 2014

Another notable (and astute?) local shaming sentence for elderly bully

Bully Sign Latino

As reported in this AP piece, "Ohio Judge Sentences Man To Wear 'I AM A BULLY' Sign," another notable sentence involving shaming has made national news this weekend. Here are the details:

A man accused of harassing a neighbor and her disabled children for the past 15 years sat at a street corner Sunday morning with a sign declaring he's a bully, a requirement of his sentence.

Municipal Court Judge Gayle Williams-Byers ordered 62-year-old Edmond Aviv to display the sign for five hours Sunday. It says: "I AM A BULLY! I pick on children that are disabled, and I am intolerant of those that are different from myself. My actions do not reflect an appreciation for the diverse South Euclid community that I live in."...

Aviv arrived at the corner just before 9 a.m., placing the hand-lettered cardboard sign next to him as he sat in a chair. Within a couple of minutes, a passing motorist honked a car horn. Court records show Aviv pleaded no contest in February to a misdemeanor disorderly conduct charge. His attorney didn't return a telephone call for comment.

Aviv has feuded with his neighbor Sandra Prugh for the past 15 years, court records show. The most recent case stemmed from Aviv being annoyed at the smell coming from Prugh's dryer vent when she did laundry, according to court records. In retaliation, Aviv hooked up kerosene to a fan, which blew the smell onto Pugh's property, the records said.

Prugh has two adult adopted children with developmental disabilities, cerebral palsy and epilepsy; a husband with dementia, and a paralyzed son. Prugh said in a letter to the court that Aviv had called her an ethnic slur while she was holding her adopted black children, spit on her several times, regularly threw dog feces on her son's car windshield, and once smeared feces on a wheelchair ramp. "I am very concerned for the safety of our family," Prugh wrote in a letter to the court for Aviv's sentencing. She said she just wants to live in peace.

The judge also ordered Aviv to serve 15 days in jail and to undergo anger management classes and counseling. He also had to submit an apology letter to Prugh. "I want to express my sincere apology for acting irrationally towards your house and the safety of your children," Aviv wrote. "I understand my actions could have caused harm but at that time I was not really thinking about it."

Regular readers know that I tend to be a supporter of shaming sentences as an alternative to prison terms in appropriate cases. And this case seem like just the kind of matter in which a little public shaming, as opposed to an extended jail term, seems to have a reasonable chance of being an effective deterrent and a less cost to Ohio taxpayers.

April 13, 2014 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (11) | TrackBack

Tuesday, April 01, 2014

"Sex offender housing restrictions do more harm than good"

The title of this post is the headline of this notable Concord Monitor editorial.  Here are excerpts:

Of all the constituents that politicians want to help out, sex offenders probably rank at the very bottom of the list.  But the New Hampshire Senate should summon the courage to do just that. By helping sex offenders, as strange as it sounds, the Senate will end up making life safer for everyone else.

At issue is legislation that would ban cities and towns from placing broad restrictions on where sex offenders may live.  Several communities have attempted such restrictions, and lower-court judges have already struck down two as unconstitutional: one in Franklin and one in Dover.  In both cities, local officials wanted to keep convicted sex offenders from living too close to places where children regularly gather: schools, day care centers and playgrounds.  Several other communities still have such ordinances on the books, among them Tilton, Sanbornton, Northfield and Boscawen.

The impulse to keep sex offenders away from kids via zoning is completely understandable.  But there is strong reason to resist. And there is strong reason to set such policy at the state level, rather than leaving it to individual communities.

A growing body of evidence — gathered not just by civil liberties lawyers, but from law enforcement officers, public officials and child advocacy groups — suggests that residency restrictions are placebo pills at best and counterproductive at worst.  Such ordinances give communities a false sense of security while driving sex offenders underground or into rural areas where they can’t access the services that give them the best chance at rehabilitation....

An Iowa study, for instance, showed that sexual-abuse convictions had remained steady since statewide residency restrictions went into effect five years earlier but that the number of sex offenders failing to register their addresses with local police departments, as the law required, had more than doubled.

When a sex offender has served his sentence, it is in everyone’s interest that he succeed on the outside. Passing this bill would help.

April 1, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (34) | TrackBack

Monday, March 31, 2014

Controversy long after du Pont heir got probation as punishment for raping his small daughter

As detailed in this lengthy local article from Delaware, headlined "Heir's sentence raises questions in child rape case," a high-profile child rape case from years ago is now generating new controversy because the low sentence imposed on the rapist just became public.  Here are the details: 

A judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he "will not fare well" in prison and needed treatment instead of time behind bars, court records show.  

Superior Court Judge Jan Jurden's sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape.  Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.

Richards' 2009 rape case became public this month after attorneys for his ex-wife, Tracy, filed a lawsuit seeking compensatory and punitive damages for the abuse of his daughter. The fact that Jurden expressed concern that prison wasn't right for Richards came as a surprise to defense lawyers and prosecutors who consider her a tough sentencing judge. Several noted that prison officials can put inmates in protective custody if they are worried about their safety, noting that child abusers are sometimes targeted by other inmates.

"It's an extremely rare circumstance that prison serves the inmate well," said Delaware Public Defender Brendan J. O'Neill, whose office represents defendants who cannot afford a lawyer. "Prison is to punish, to segregate the offender from society, and the notion that prison serves people well hasn't proven to be true in most circumstances." O'Neill said he and his deputies have often argued that a defendant was too ill or frail for prison, but he has never seen a judge cite it as a "reason not to send someone to jail."...

O'Neill said the way the Richards case was handled might cause the public to be skeptical about "how a person with great wealth may be treated by the system."  Richards, who is unemployed and supported by a trust fund, owns a 5,800-square-foot mansion in Greenville, Del., he bought for $1.8 million in 2005.  He also lists a home in the exclusive North Shores neighborhood near Rehoboth Beach, according to the state's sex abuse registry. His great-grandfather is du Pont family patriarch Irenee du Pont, and his father is Robert H. Richards III, a retired partner in the Richards Layton & Finger law firm....

The lawsuit filed by Richards' ex-wife accuses him of admitting to sexually abusing his infant son between 2005 and 2007, the same period when he abused his daughter starting when she was 3.  Police said they investigated allegations involving the boy in 2010 after his mother filed a complaint, but said they did not have sufficient evidence to justify charges. Investigators will take another look at the allegations included in the lawsuit, which are based on reports by probation officers.

State Attorney General Beau Biden's office had initially indicted Richards on two counts of second-degree rape of a child -- Class B violent felonies that carry a mandatory 10-year prison term for each count.  According to the arrest warrant filed by a New Castle County Police Detective JoAnna Burton in December 2007, the girl, then 5, told her grandmother, Donna Burg, that Richards sexually abused her.

Burg said the child reported that her father told her it was "our little secret" but said she didn't want "my daddy touching me anymore." Tracy Richards, who confronted her then-husband, told police he admitted abusing his daughter but said "it was an accident and he would never do it again," the warrant said.

Richards was free on $60,000 secured bail while awaiting trial on the charges that could have put him behind bars for years.  But in June 2008, just days before a scheduled trial, prosecutor Renee Hrivnak offered Richards a plea to a single count of fourth-degree rape, which carries no mandatory time, and he accepted, admitting in court that he abused his child.

"It was more than reasonable, an enlightened plea offer," Richards attorney Eugene J. Maurer Jr. said.  Fourth-degree rape is a Class C violent felony that by law can bring up to 15 years in prison, though guidelines suggest zero to 2 1/2 years in prison.

At Richards' February 2009 sentencing, Hrivnak recommended probation, Biden's chief deputy Ian R. McConnel said, adding that in retrospect he wished she would have sought prison time.  Hrivnak would not comment.... McConnel would not discuss the rationale behind the Richards' plea deal and Hrivnak's recommendation of probation for the fourth-degree rape conviction.

While judges have the latitude to sentence defendants within legal parameters, they are urged to follow more lenient guidelines established by the Delaware Sentencing Accountability Commission, a panel of judges and other top officials in the criminal justice system. The panel has a policy that prison should be reserved for violent offenders, including rapists.

Jurden gave Richards, who had no previous criminal record, an eight-year prison term, but suspended all the prison time for probation. "Defendant will not fare well in Level 5 setting," said the final line of her sentencing order. In Delaware's correctional system, Level 5 is prison....

Defense lawyer Joseph A. Hurley said it makes sense to him that the judge would be concerned about Richards' time in prison. "Sure, they have protective custody, but that is solitary confinement for 23 hours a day. We're not a third-world society," Hurley said. "Sex offenders are the lowest of the low in prison," Hurley said. "He's a rich, white boy who is a wuss and a child perv. The prison can't protect them, and Jan Jurden knows that reality. She is right on."

Though lots of reactions to this story are possible, I cannot help but highlight that a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated. But I am inclined to encourage everyone to appreciate how this story reveals yet again how prosecutorial charging, bargaining and sentencing decisions are never subject to transparency or formal review, while judicial sentencing decisions have to be made in open court, on the record, and can in some cases be appealed.

March 31, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24) | TrackBack

Tuesday, March 25, 2014

Illinois commission advocates against putting all juve sex offenders on registry

As explained in this AP article, headlined "Commission: Remove Juveniles From Sex Offender Registries," a new public policy report urges Illinois officials to no longer require juvenile sex offenders to register. Here are the basics:

Requiring juveniles to register as sex offenders impairs rehabilitation efforts for a crime that very few of them ever commit again, according to a study released Tuesday.  The Illinois Juvenile Justice Commission’s report recommends ending the practice of making offenders younger than 17 add their names to sex-offender registries, which can negatively affect an offender for years.  Every juvenile convicted of a sex crime must register, and 70 percent of the 2,553 currently registered must do so for life, the report said.

The 150-page review of laws and treatment practices regarding juvenile sex crimes calls for the state to abolish the categorical requirement for young offenders’ registration.  The report [available here], which the General Assembly requested in 2012, says sex crimes committed in youth are seldom repeated in adulthood and that individualized, community-based treatment plans are highly effective and more productive than incarceration.

“Automatic, categorical registries do not protect public safety,” commission chairman George Timberlake, a retired chief circuit judge from Mount Vernon, told The Associated Press.  “There’s no evidentiary basis that says they do and more importantly, they have very negative consequences in the effects they have on the offenders’ life, and perhaps the victim’s life.”

Timberlake said the victim, often a family member, loses confidentiality through offender registration and can also suffer from not being able to resume a familial relationship with an offender who is required to register.  He added that a registry might be appropriate based on risk.  Many states offer courts flexibility.

The report recommends developing statewide standards and training for courts and law enforcement professionals for intervening with young sex offenders and victims.  It also calls for a consistent assessment tool for evaluating risks an individual juvenile poses. Also, the report says, offenders whenever possible should be kept in treatment programs in their homes that involve parents as opposed to locking them up.

March 25, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Monday, March 24, 2014

AG Eric Holder announces new rules for federal halfway houses

Via this official press release, I see that Attorney General Eric Holder is continuing his effort to reshape the policies and practices of the federal criminal justice system, this time through new policies and programming for federal halfway houses.  The title and subtitle of the press release itself provides a summary of this latest development: "In New Step to Fight Recidivism, Attorney General Holder Announces Justice Department to Require Federal Halfway Houses to Boost Treatment Services for Inmates Prior to Release; New Rules Also Instruct Federal Halfway Houses to Provide Transportation Assistance, Cell Phone Access in Order to Help Inmates Seek Employment Opportunities."

Here is more from the start of the press release:

In a new step to further the Justice Department’s efforts towards enhancing reentry among formerly incarcerated individuals, Attorney General Eric Holder announced Monday that the Bureau of Prisons (BOP) will impose new requirements on federal halfway houses that help inmates transition back into society.  Under the proposed new requirements, these halfway houses will have to provide a specialized form of treatment to prisoners, including those with mental health and substance abuse issues.  For the first time, halfway houses will also have to provide greater assistance to inmates who are pursuing job opportunities, such as permitting cell phones to be used by inmates and providing funds for transportation.  The new requirements also expand access to electronic monitoring equipment, such as GPS-equipped ankle bracelets, to allow more inmates to utilize home confinement as a reentry method.

Holder announced the changes in a video message posted on the Department’s website. The BOP’s new policies have the potential to be far-reaching. To ease their transition, those exiting prison typically spend the last few months of their sentence in either a federal halfway house — known as a residential reentry center (RRC) — or under home confinement, or a combination of the two. These community-based programs provide much needed assistance to returning citizens in finding employment and housing, facilitating connections with service providers, reestablishing ties to family and friends, and more.

Last year alone, more than 30,000 federal inmates passed through a halfway house. Among the most significant changes Holder announced is the requirement for standardized Cognitive Behavioral Programming (CBP) to be offered at all federal halfway houses.  This treatment will address behavior that places formerly incarcerated individuals at higher risk of recidivism. As part of this treatment requirement, BOP is setting guidelines for instructor qualifications, class size and length, and training for all staff at the halfway houses.

Several other modifications are being made to the standard contracts that apply to federal halfway houses in order to provide greater support to returning citizens. Examples include requiring halfway houses to provide public transportation vouchers or transportation assistance to help residents secure employment, requiring all federal halfway houses to allow residents to have cell phones to facilitate communication with potential employers and family, and improving and expanding home confinement by increasing the use of GPS monitoring.

March 24, 2014 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 19, 2014

Should sex offenders be prohibited from winning lottery jackpots?

The question in the title of this post is prompted by this new FoxNews report headlined "Massachusetts official seeks to prevent sex offenders from collecting large lotto payouts."  Here are excerpts:

A Massachusetts state senator is pushing to close a lottery loophole that allows sex offenders to pocket huge payouts and potentially use their winnings to buy their victims' silence.

"Should someone on the sex offender list purchase a ticket and win, I think we should find a way from preventing them from enjoying the proceeds," state Sen. Richard Moore told The Boston Herald. "This doesn't smell right to start with."

Moore's concern came as it was revealed that a Level 3 serial child predator walked away with a $10 million win in 2008 and used his winnings to buy gifts for a boy he was allegedly abusing. Daniel T. Snay, 62, was convicted four separate times of indecent assault and battery on a person 14 years or older from 1974 to 1987. He pleaded not guilty Monday at his arraignment on charges including indecent assault and battery on a child under the age of 14 and other charges....

"I guess he bought my silence by giving me gifts and stuff," the boy, now 16, told police, according to a transcript released in court, the paper reported. The alleged abuse occurred about the same time he won the lottery and it continued until March 1, 2012, the report said.

Police Chief Jeffrey Lourie said Snay's "windfall aided the commission of the crimes" by helping him gain favor with people. Sam Goldberg, Snay's attorney, told the paper the allegations are "very easy to bring ... especially when you know this is someone who’s already been a lightning rod ... because of the lottery winnings."

The director of the state's lottery told the paper that winnings can be intercepted by the IRS or Department of Revenue, but a payout cannot be withheld “based on someone’s character."

March 19, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (42) | TrackBack

Saturday, March 01, 2014

Notable new federal front in drug war being tried in South Carolina

I was intrigued to see this lengthy article at the Huffington Post headlined "Federal Prosecutor Tries A Radical Tactic In The Drug War: Not Throwing People In Prison." The piece merits a read in full, and here is a taste:

Conway is a small city, with a population of about 16,000. Many residents work in tourism-related jobs in nearby Myrtle Beach. The drugs and gangs have made them feel unsafe at home. Dianne Davis, 56, said she tries "not to let the dark catch me" and described other Conway residents as barricading their doors with two-by-fours. "I want to be able to stand on my porch," Davis said. "I have a beautiful garden."

"There are a lot of gangsters running around in that area," Jimmy Richardson said of the neighborhood where Huckabee Heights is located. Richardson is the chief state prosecutor for Horry County, which includes Conway, and a resident of the city himself.

To South Carolina's top federal prosecutor, however, the troubles in Conway present an opportunity. U.S. Attorney Bill Nettles is testing out a novel approach to dealing with drug-related crime, one that aims to clean up the streets by looking beyond mass arrests and incarceration. Conway is the third city in South Carolina to implement a version of the plan, and federal prosecutors in other states and the Justice Department are watching closely. If the program's success continues in South Carolina, it could become a model for law enforcement across the country.

"What I want to do is to make the people's lives who are law-abiding citizens in this community better," Nettles said on the two-and-a-half-hour drive to Conway from his office in Columbia last month. "Incarceration is no longer the goal, but is one of many tools available to allow you to effect your goal of improving their lives. It represents a fundamental shift, a seismic shift in terms of how you're viewing what you're doing."

"When you declare a 'war on drugs,' the community sees the cops as the occupiers, and the cops see the people in the community as enemy combatants," Nettles said. "Well, that's not the way it's supposed to be."

Nettles' plan is surprisingly straightforward. First, federal and local prosecutors identify local drug dealers with the help of the police, probation officers and community members. Next, they build criminal cases against them by reviewing records for outstanding warrants and conducting undercover drug buys. In most cases, arresting all the dealers would be the next order of business, but Nettles has a different idea.

While high-level dealers are still arrested and prosecuted, some low-level offenders are given another option. For them, Nettles stages something of an intervention. Together with the police, family members, religious leaders and other members of the community, prosecutors present the dealers with the evidence against them and give them a choice: Face the prospect of prison or participate in the pilot project.

The program, officially known as the Drug Market Intervention Initiative, helps the dealers find legitimate jobs and offers them help with drug treatment, education and transportation. The hope is that it provides them with the support and the motivation they need to turn their lives around.

The ones who are chosen know that not everybody gets this chance. The initiative in each city does not have endless resources. So only certain low-level offenders, those with limited criminal histories and no violent crimes in their past, are given the opportunity to avoid prison.

For a period of time, typically more than a year, they are monitored to make sure they remain law-abiding citizens. If they do, they will remain free of the criminal justice system. Until they complete the program, however, the threat of arrest based on the evidence already collected continues to hang over their heads. If officials receive complaints about anyone involved in the program, a judge can sign off on an already prepared arrest warrant....

"These people are being regularly drug tested, they are in a stringent program, and if they fail out or don't show up or quit doing their stuff for work, I'm going to arrest them," Nettles explained. "That is what some people call a motivated employee." Part of their motivation also comes from the fact that a steady paycheck can actually be more lucrative than the drug business. Contrary to the popular image of drug lords rolling in cash, many street-level dealers are barely getting by.

March 1, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 20, 2014

A shameful suggestion for how to NYC roads and walkways safer

I was asked yesterday to contribute my thoughts to the Room for Debate section of the New York Times to address the question of "what steps can [New York City] officials, pedestrians and drivers take to reduce the number of accidents?".  My suggestion in available at this link, and here is a segment:

Perhaps Mayor de Blasio might try to impose salient shaming sanctions rather than other traditional punishments.

What if, after a reckless driver has caused a crash in Midtown, the offender were required to create a video reciting recent accident data, which would be posted on YouTube and regularly shown on screens in Times Square? What if, after a cyclist is caught dangerously weaving through traffic in Brooklyn, that scofflaw had to make a live apology during halftime of a Nets game? What if all drivers convicted of speeding were required to place bumper stickers on their cars highlighting that the owner does not follow traffic rules? ...

Because we have rarely tried to make traffic offenders “pay” for their crimes through prominent use of shaming, I cannot confidently predict it would be more effective. But given the challenges in trying to capture the attention and obedience of busy New York City drivers, it is worthwhile to consider creative alternative punishment schemes.

February 20, 2014 in Criminal Sentences Alternatives, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, February 15, 2014

"Healthcare Not Handcuffs": Will ACA help end the drug war?

JUS13-Web-HCNHC-Header-REL2The title and question of this post is my take on this notable recent report from the ACLU and the Drug Policy Alliance titled "Healthcare Not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform." Here is an excerpt from the report's introduction:

The Affordable Care Act (ACA) is the most significant expansion of healthcare coverage in generations, and there is almost no area of the U.S. healthcare system that is not impacted by the reform in some way.  Even as debate about the ACA continues, it is now the law of the land, and implementation is fully under way.  For criminal justice reform and drug policy reform advocates, the ACA represents a remarkable opportunity to advance efforts to end both mass incarceration and the criminalization-based approach to drug policy often known as the War on Drugs.

Under the ACA, tens of millions of people in the United States will gain healthcare coverage for a broad array of health services and conditions, including, for the first time, substance use and mental health disorders.  Of course, there are also problems with the ACA and its implementation, not the least of which is that millions of people will remain uninsured even after the law is fully operational.  Yet even with these challenges, the ACA sets the stage for a new health-oriented policy framework to address substance use and mental health disorders -- health problems that have been largely relegated to the criminal justice system for more than 40 years.

This is an enormous paradigm shift that has yet to fully register with criminal justice and drug policy reform advocates, let alone with health policy advocates and the general public. The financial benefits of providing substance use disorder treatment instead of incarceration are well established. But by fully incorporating substance use and mental health disorders into healthcare -- by truly treating them as health issues and requiring public and private insurance plans to cover their treatment -- the ACA creates an opening and financial incentives to shift drug policy into a public health framework, undermining the rationale for a criminal justice approach....

The passage and implementation of the ACA coincides with the growing momentum across the political spectrum to end the War on Drugs, reverse the incarceration boom, and abandon criminal justice policies that have resulted in the criminalization of whole communities.  But the paradigmatic shift from criminalization to health will not occur unless criminal justice and drug policy reform advocates seize the moment and leverage the ACA to realize its full transformative potential.

To assist advocates in navigating this new terrain, this paper outlines some of the major provisions of the ACA immediately relevant to criminal justice and drug policy reform (Part One), and then explores specific applications of those provisions, including program and policy examples and suggested action steps (Part Two)....

This is a unique, perhaps even once-in-a-lifetime scenario for criminal justice and drug policy reform advocates: with the ACA, we can start to build true alternatives to the criminal justice response to substance use, the enforcement of which has fundamentally undermined community health and safety.  Addressing substance use as a health condition has the potential to lower health costs, dramatically reduce the number of people involved in the criminal justice system, and improve health outcomes and overall wellbeing for millions of people.

February 15, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

Monday, February 10, 2014

Registered sex offender makes case against sex offender registry

Guy Hamilton-Smith, a registered sex offender and law school graduate who has so-far been denied the opportunity to become a member of the bar, has this new op-ed in the Lexington Herald-Leader under the headline "Sex-offender registry misguided thinking." Here are excerpts:

I am a sex offender. I know well the tremendous power of those words. In 2007, I pled guilty to possession of child pornography.

Nothing here is meant to defend what I did or to minimize the gravity of my actions. I had a major problem with pornography, and I was far too deep in denial and too scared to reach out to anyone.  Help eventually came when my girlfriend discovered child porn on my computer and went to the police.  I was then and remain grateful to her for taking that step.

As I went through the legal process after my arrest, I developed a keen interest in the law, and a sincere desire to advocate on the behalf of those who are hated, who are lost, and who are forgotten.  With luck, I managed to win acceptance to law school despite my conviction.  I worked harder than I'd ever worked in my life, because I knew I'd have a lot to do to overcome my past.  I did well in school, graduated, secured a job at a law firm after disclosing my past, and applied to take the bar exam.  Recently, the Kentucky Supreme Court ruled that I will not be allowed to take the bar exam until I am no longer on the sex-offender registry, which will be another 18 years from now.

But the point I want to make is not about me. It isn't about my case. I am not here to say whether the court's decision was right or wrong. The principles at play are much larger than me.  

Strange as it may sound coming from a felon and a sex offender, I believe in the necessity of punishment.  How else, after all, are people supposed to make amends for the harm that they cause? ... I believe in many ways that my life was saved by virtue of my arrest.  I am sensitive to the fact that my crime, and the crimes of others on the sex offender registry, are serious. I do not mean to denigrate the plight of victims, as I was also a victim at one point in my own childhood.

My point, rather, is simply this: punishment that becomes unmoored from considerations of proportionality, redemption and reintegration becomes poison, and we — society, victims and perpetrators — become diminished by it.

Nowhere is this more evident than the sex-offender registry.  Those who find themselves constituents of the registry are routinely and uniformly denied the same second chance afforded to so many other criminal defendants after they have served their sentences.  

The impetus behind the registry is the popular belief that sex offenders always commit new sex crimes.  That view, however, is at odds with data from the Department of Justice and others....

I know that I am not a sympathetic figure by virtue of my crime.  I know that I can never change the past or undo the things that I have done.  My hope here is that we can have a discussion in this country that is long overdue — namely, what it is that we hope to achieve from our system of criminal justice.

February 10, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Thursday, February 06, 2014

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

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

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

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

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

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

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

Sunday, January 26, 2014

"Sex offender fights registry by registering his registerers"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, January 20, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, January 16, 2014

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

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

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

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

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

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

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

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

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

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

Tuesday, January 07, 2014

"Should We Let Prisoners Upgrade Their Prison Cells?"

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

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

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

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

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

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

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

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

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

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

Monday, January 06, 2014

"Sex offender seeks admission to Kentucky bar"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross-posted at PrawfsBlawg

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

Tuesday, December 31, 2013

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

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

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

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

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

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

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

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

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

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

Sunday, December 29, 2013

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

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

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

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

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

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

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

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

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

Wednesday, December 25, 2013

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

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

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

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

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

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

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

Wednesday, December 11, 2013

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

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

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

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

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

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

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

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

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

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

Thursday, December 05, 2013

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

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

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

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

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

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

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

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

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

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

A few prior posts on Paroline:

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

Wednesday, December 04, 2013

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

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

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

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

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

Monday, December 02, 2013

Another preview of Paroline via the New York Times

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

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

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

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

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

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

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

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

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

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

A few prior posts on Paroline:

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

Tuesday, November 26, 2013

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 24, 2013

"'Cocaine congressman' received the right sentence"

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

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

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

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

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

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

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

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

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

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

Recent related post:

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

Wednesday, November 20, 2013

"Sex offender offers to castrate himself for lighter sentence"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 19, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, November 15, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, November 08, 2013

"Informal Collateral Consequences"

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

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

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

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

Thursday, November 07, 2013

State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional

As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders."  Here is more:

Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.

Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.

The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.

Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.

In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."

"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."

County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.

Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."

The full 40+ page ruling reference here is available at this link, which I found via this helpful page from the helpful folks at the Juvenile Law Center.

November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

New Michigan law adds to number of states requiring registered sex offenders to pay yearly fee

This local article report on yet another notable extra bit of punishment now for sex offenders in Michigan.  The piece is headlined "Sex Offenders Will Have To Pay To Live In Michigan Under Bill Signed By Gov. Snyder," and here are the details:

Gov. Rick Snyder has signed legislation requiring registered sex offenders living in Michigan to pay an annual $50 fee. The bill, sponsored by Republican Sen. Rick Jones, replaces the system under which sex offenders paid a one-time $50 fee. Snyder signed the bill into law on Tuesday.

The measure only applies to registered sex offenders who are out of prison. Officials say $20 of each fee would go to local law enforcement and $30 would go to the state. If offenders don’t pay the annual fee, they face misdemeanor charges.

Offenders who can’t afford the fee would have the chance to make their case and receive a 90-day waiver. To do that, offenders would either have to prove in court that they are indigent, are receiving food assistance from the state, or are living under the federal poverty level.

Snyder said the law brings Michigan in line with neighboring states that require sex offenders to pay for the operating cost of sex offender websites. He said Indiana charges $50 per year, while Illinois and Ohio charge offenders $100 per year. The state said the move could bring in about $540,000 more in revenue each year.

But not everybody is on board with the new law. Opponents, which include the American Civil Liberties Union, say it’s merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.

“They have paid their dues … this is a burden that we just keep piling on,” said Shelli Weisberg, legislative liaison for ACLU of Michigan. She argues that the state is not asking offenders to pay for something that benefits them, but something that is intended to protect citizens. Therefore, the state should pay for it.

November 7, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (86) | TrackBack

Thursday, October 31, 2013

"Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States"

The title of this post is the title of a notable new report from The Vera Institute of Justice available at this link.  Here is a synopsis of the report's coverage via the Vera website:

Germany and the Netherlands have significantly lower incarceration rates than the United States and make much greater use of non-custodial penalties, particularly for nonviolent crimes.  In addition, conditions and practices within correctional facilities in these countries — grounded in the principle of “normalization” whereby life in prison is to resemble as much as possible life in the community — also differ markedly from the U.S.

In February 2013 — as part of the European-American Prison Project funded by the California-based Prison Law Office and managed by Vera — delegations of corrections and justice system leaders from Colorado, Georgia, and Pennsylvania together visited Germany and the Netherlands to tour prison facilities, speak with corrections officials and researchers, and interact with inmates.  Although variations in the definitions of crimes, specific punishments, and recidivism limit the availability of comparable justice statistics, this report describes the considerably different approaches to sentencing and corrections these leaders observed in Europe and the impact this exposure has had (and continues to have) on the policy debate and practices in their home states.  It also explores some of the project’s practical implications for reform efforts throughout the United States to reduce incarceration and improve conditions of confinement while maintaining public safety.

October 31, 2013 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2) | TrackBack

Sunday, October 27, 2013

"Democracy on Display: A Case for Public Sanctions"

The title of this post is the headline of this intriguing new piece by Zachary Baron Shemtob now available here via SSRN. Here is the abstract:

This article begins by discussing the work of Jason Brennan, who argues that voter ignorance is inherently and instrumentally problematic to democratic governance. I then apply this point to the contemporary criminal justice system and penology. I argue that voters’ lack of knowledge here is both unjust on those punished and, using the recent work of William J. Stuntz and others, has resulted in egregious consequences.

The majority of the article focuses on the advantages and disadvantages of public punishments, concluding that such sanctions have great potential to challenge citizens’ ignorance of our penal system. Ultimately, the goal is not to offer any sort of definitive conclusion, but to begin a long-overdue discussion on the role of public ignorance in our broken prison system, and one way in which such ignorance might be dispelled.

October 27, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 23, 2013

Should Congress tell all states and localities they many never employ certain ex-offenders in their public schools?

The question in the title of this post is prompted by this new AP story headlined "House Votes for School Checks for Sex Offenders." Here are is the backstory:

Public schools would be barred from employing teachers and other workers convicted of sexual offenses against children or other violent crimes under a bill the House approved Tuesday.

The measure would require school systems to check state and federal criminal records for employees with unsupervised access to elementary and secondary school students, and for people seeking those jobs. Workers refusing to submit to the checks would not be allowed to have school positions.

A 2010 report by the Government Accountability Office, the auditing arm of Congress, cited one estimate that there are 620,000 convicted sex offenders in the U.S. It also found that state laws on the employment of sex offenders in schools vary.  Some require less stringent background checks than others, and they differ on how people with past convictions are treated, such as whether they are fired or lose their teaching license.

The bill has run into objections from major teachers' unions like the National Education Association and the American Federation of Teachers.  In letters to lawmakers, their criticisms included concerns that the measure might jeopardize workers' protections under union contracts.  In addition, the NEA wrote that criminal background checks "often have a huge, racially disparate impact" — a reference to critics' complaints that minorities make up a disproportionately high proportion of people convicted of crimes.

Despite those concerns, the House approved the measure by voice vote. "Keeping children safe is not a partisan issue," said the chief sponsor, Rep. George Miller, D-Calif. "It's a moral obligation."

"Every school employee, from the cafeteria workers to the administrators, to janitors to the teachers, principals and librarians, that every one" is subject to background checks including the FBI fingerprint indentification system to the national sex offender registry, said Rep. Todd Rokita, R-Ind.

No one said they opposed the bill.  But Rep. Keith Ellison, D-Minn., said that by imposing lifetime bans and ignoring the ability of people to overcome criminal backgrounds, "We do run the risk of doing a good thing, but doing too much of a thing." He said he'd continue seeking changes in the measure as it moves through Congress....

The bill would forbid public schools to employ people convicted of crimes against children including pornography, or of felonies including murder, rape, spousal abuse or kidnapping. It would bar school districts and state education agencies from transferring workers who have engaged in sexual misconduct with minors to another location.  The measure would also apply to contractors who work at schools.

Especially as this bill moves to the Senate, I wonder how tea party conservatives like Senators Cruz and Lee and Paul are likely to look at this seemingly significant intrusion by the federal government into state and local education and employment authority. If applied broadly, it sounds as though this bill would preclude someone convicted decades earlier of public indecency or child abuse from serving as a janitor or construction worker in any public school in any state. Whatever one might think about a state adopting such a rule for its own schools, but it seems like quite an intrusion into state authority for the feds to require this rule for all states and localities nationwide.

October 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, October 21, 2013

Alabama legislators proposing adult day-care "clusters" for sex offenders

As reported in this local article, headlined "Bill Proposes Licensed Residential Sex Offender Clusters," legislators in Alabama are considering a new innovation in the monitoring of sex offenders. Here are the details:

Some Alabama State Representatives are hoping a proposed bill will change the laws surrounding where convicted sexual predators are able to live together. Representatives Kurt Wallace and Paul Beckman are sponsoring the proposal that would make it against the law for sexual predators to live together unless it’s in what they’re calling a licensed, regulated residential sex offender cluster.

The proposed bill is similar to a bill passed into law earlier this year by the Alabama State Legislature. Alabama State Senator Arthur Orr is the sponsor of that bill. It encompasses Morgan County, while the proposed bill will cover the entire state.

In part Senator Orr’s bill made it against the law for convicted sex offenders to live in the same house. ”Studies show that if that is the situation there is much more proclivity for them to sexually offend others in the surrounding area,” Senator Orr says. He says his bill was met with agreement from the Alabama Legislature and Morgan County residents. “Certainly the constituents who had small children who were living near this group sexual offender home, and they certainly wanted something done.”

The proposed bill by Representatives Wallace and Beckman would create what lawmakers call residential sex offenders clusters. The bill spells out what that means. A residential sex offender cluster would be a tract of land where registered sex offenders could live together. An on-site monitor would also be required to live there to supervise the offenders. The clusters would have to be licensed and it would authorize the Department of Mental Health to make rules regulating the clusters.

If passed this proposed bill would require any sex offenders who wanted to live together to live in one of the clusters. It’s proposed if they violated that, it would be punishable by a felony charge. Already Alabama has laws preventing convicted sex offenders from living near a school or their victims. Some officials argue it’s already hard enough for them to find a place to live and this proposed bill would make it even harder....

Lawmakers say the proposed bill would promote public safety, health and confidence. They are expected to take this proposed bill up in the 2014 regular session.

October 21, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (32) | TrackBack

Thursday, October 03, 2013

Second Circuit finds substantive due process problems (and others) with penile plethysmography testing for convicted sex offender

Thanks to a number of helpful readers, I have not missed the news of a notable sentencing ruling by a Second Circuit paenl today in US v. McLaurin, No. 12-3514 (2d Cir. Oct. 3, 2013) (available here). Here is how the opinion starts:

David McLaurin, a convicted sex offender, was required by federal law to register any change in his address.  He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months’ imprisonment and five years of supervised release.  As a condition of his release, McLaurin was required to “participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.

This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis.  In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated.   The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has.  The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release.  See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin.  McLaurin now appeals.

We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin’s right to substantive due process. We therefore vacate the condition.

October 3, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack

Tuesday, September 24, 2013

Documenting the enduring challenges of reentry for parolees and society in Colorado

The Denver Post has had a series of recent notable article on parole policies, practices and practicalities under the heading "Behind Bars." Here are the headlines and links to some of the stories in the series:

Ever the fan of evidence-based policies and technocorrections, I was especially drawn to this article in this series headlined "Technology, quick-reaction programs guiding parole reform in other states." Here is how it starts:

Predicting who will murder is now a science. In cities including Philadelphia and Baltimore, high-tech software helps determine which parolees are most likely to kill and what level of supervision makes sense.

The crime-prediction computer program was developed by Richard A. Berk, a criminology and statistics professor at The University of Pennsylvania. "It's saved a lot of money, and resources for those at low risk have been moved to those at higher risk," Berk said. "Human behavior is complicated, and although parole boards might make the best decisions, there is inevitably going to be a mistake."

The software, which makes forecasts based on geographic location, age, type of crime and other variables, is helping parole boards and law enforcement keep closer watch on the most violent offenders.

In Baltimore, where the system is being used to help determine parolee and probation supervision levels, a test of the program on offenders from 2006 had a 75 percent rate in identifying who would kill and be killed, Berk said. The program doesn't predict whether parolees will commit other crimes. "It's hardly perfect, but we're doing much better than the current seat-of-your-pants forecasting," Berk said.

Pennsylvania is expected to apply the software for all parolees by the end of the year. Other states have found success moving away from parole-officer discretion to more restrictive supervision and rapid-reaction punishment.

A model program in Washington state dishes out swift and predictable consequences for parolees who mess up, according to Mark Kleiman, a professor at the University of California, Los Angeles. Criminals, in general, are short-term oriented, so in order to reform behavior, they need near-immediate reaction from their parole officer. Consequences "need to be fast and they need to be every time or they are not fair," said Kleiman, who formerly worked at the U.S. Department of Justice's criminal division.

September 24, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (2) | TrackBack

Monday, September 23, 2013

In praise of a stat-max fine that hits a federal white-collar defendant (and not the federal taxpayer) where it hurts

Some readers of this blog may come to (wrongly) believe I tend to disfavor most harsh punishments, whereas in fact I tend to favor most harsh punishments if and whenever they prove to be especially efficacious and economical.  Consequently, I tend to be fairly skeptical of punishments in the form of lenghty terms of imprisonment, whereas I tend to be fairly supportive of punishments in other forms. 

This mini backstory on my views is provided here to account for my particular affinity for the sentence imposed and now affirmed (via an unpublished ruling) in United States v. Turner, No. 12-6483 (6th Cir. Sept. 20, 2013) (available here). Here is how the opinion gets started, which provides a summary of the ruling and the facts which led up to the defendant's prosecution:

Arch Turner appeals a $250,000 fine imposed by the district court as part of his sentence for conspiring to buy votes. He argues that the fine is procedurally unreasonable because the court did not provide specific reasons for the variance from the Guidelines range of $4,000 to $40,000, and that it is substantively unreasonable because the court impermissibly considered Turner’s socio-economic status.  We conclude that the court adequately explained its reasoning in open court, that any deficiencies in duplicative explanations did not rise to the level of plain error, and that the court did not impermissibly rely on Turner’s socio-economic status. Accordingly, we AFFIRM Turner’s sentence.

Arch Turner, a superintendent of the Breathitt County, Kentucky schools, led and assisted a group of people to buy votes for a candidate in a May 2010 primary election. He coordinated meetings in which he distributed funds he had received from third parties for the purpose of buying votes, and he withdrew cash from his own bank account for the same purpose.  During the government investigation, Turner lied to an FBI agent, convinced a co-conspirator to lie to a grand jury, and attempted to convince another co-conspirator to lie to FBI agents.  During one such attempt, he told a co-conspirator that the FBI had no evidence against them and that they would not get in trouble if neither of them told on the other.  During another, Turner contacted his codefendant, which was a violation of his bond release, told his co-defendant that he could not tell on anyone because he had not seen cash change hands, and instructed his co-defendant to purchase a phone that could not be traced.  Eventually, Turner decided the jig was up and pleaded guilty to conspiracy to defraud the United States through buying votes, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i(c).

Thanks to a plea deal, this vote-buying scoundral faced "an advisory Guidelines range of 18 to 24 months imprisonment plus 1 to 3 years of supervised release and a $4,000 to $40,000 fine ... [and a] statutory maximum sentence [of] 5 years of imprisonment plus 3 years of supervised release and a $250,000 fine." The district judge thereafter notified In October 2012, the district court issued a notice advising the parties that the court intended to consider an upward variance from the Guidelines range and sought at sentencing to hear arguments concerning an upward variance of “not only time but money.” In the end, the sentencing judge imposed a 24-month prison term (the top of the calculated range) as well as a stat-max fine of $250,000.

I suspect that a number of federal sentencing judges may have shared the view that the defendant in this case deserved to have the "book thrown at him," but I fear that most would have done so by increasing the length of the defendant's imprisonment rather than maxing out his fine. As a federal taxpayer who usually see little obvious public safety benefit from imprisoning a non-violent white-collar offender for more than a few years, I am pleased that the judge in this case concluded that it would be arguably more fair and efficient to punish in this case with a greater deprivation of property rather than a greater deprivation of liberty.

September 23, 2013 in Booker in the Circuits, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Litigation prompting California city to give up Halloween sex offender posting law

As reported in this Los Angeles Times piece, headlined "O.C. city likely to drop Halloween law aimed at sex offenders: A lawsuit challenges a city of Orange law requiring sex offenders to post signs to discourage trick-or-treaters," it appears that just the filing of a constitutional lawsuit is prompting reform of a local ordinance. Here are the basics:

An Orange County city will probably toss out a law requiring registered sex offenders to post a sign in front of their homes on Halloween to discourage trick-or-treaters after it was hit with a federal lawsuit alleging the practice is unconstitutional.

Registered sex offenders in the city of Orange are legally required to post a sign on Halloween, no smaller than 12 by 24 inches, that reads, "No candy or treats at this residence." Violators face a $1,000 fine or up to a year in jail. The lawsuit, filed Wednesday on behalf of an individual identified only as "John Doe," alleges the law violates the 1st Amendment rights of registered sex offenders and puts them, and anyone living with them, at risk of physical and emotional harm.

"If you think about it, a lot of older kids go out to trick rather than treat," said Janice Bellucci, an attorney and president of the California Reform Sex Offender Laws group. "All you have to do is look for the house with the sign."...

Bellucci filed a similar lawsuit last year to strike down a Simi Valley ordinance that also required people convicted of sex crimes to post a sign. That law also banned them from putting up Halloween displays and outside lighting on Oct. 31. But the day before the Simi Valley law went into effect, federal court Judge Perry Anderson issued a temporary restraining order barring the city from enforcing the sign provision.

The judge let stand provisions of the ordinance that keep sex offenders from turning on outside lights, decorating their homes and answering their doors to trick-or-treaters....

In Orange, no registered sex offenders have been cited since the ordinance was adopted, said City Atty. Wayne Winthers. When the city passed the law in February 2010 officials counted 81 registered sex offenders, with 81% of them having convictions involving minors, according to city records.

There was no need for the group to file the lawsuit, he said, since the city had been in contact with Bellucci and the City Council was expected to discuss the issue next week in closed session. "I read the district court's [Simi Valley] ruling and I don't see any reason why the court would look at ours any differently," said Winthers, who said he intended to ask the council to remove the sign requirement from the Halloween ordinance. "Our intent wasn't to bring any unnecessary harm or scrutiny to any particular individual," Winthers said. "We just wanted to protect children."

September 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Monday, September 09, 2013

Second Circuit panel provides fuller account of child porn restitution accounting

The Second Circuit today released a lengthy panel opinion in US v. Lundquist, No. 11-5379 (2d Cir. Sept. 9, 2013) (available here), providing a detailed discussion of the rules and standards for child porn restitution sentencing decisions. Here is how the opinion begins:

In this case, defendant-appellant Avery Lundquist was convicted of receiving and possessing child pornography.  Among the images in his possession was one of "Amy," the pseudonym for a young woman who was sexually abused by her uncle when she was four years old. The uncle photographed his abuse of Amy, and disseminated those images on the Internet.

Amy is now in her twenties, and the pornographic images her uncle took of her continue to be traded on the Internet.  Some 113 individuals -- including Lundquist -- have been convicted of possessing images of her.  The questions presented are whether Lundquist may be ordered to make restitution to Amy and, if so, in what amount.

The district court (Suddaby, J.) concluded that Lundquist proximately caused $29,754.19 of Amy's losses, but decided he should be held jointly and severally liable, along with all others convicted of possessing Amy's images, for her total losses of $3,381,159.  We conclude that there was sufficient evidence to support a finding of proximate cause and that the district court reasonably estimated the share of Amy's losses to be attributed to Lundquist as her total loss divided by the number of persons convicted of possessing her images at the time of the restitution request.  The district court abused its discretion, however, by including in its calculations losses that Lundquist could not have proximately caused and by holding Lundquist jointly and severally liable for harm caused by defendants who were not before the court. Accordingly, we affirm in part, vacate in part, and remand for recalculation of the amount of restitution.

September 9, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Friday, September 06, 2013

New commentary calls "creative" shaming punishments "terrible" (on curious grounds)

Dameron.png.CROP.rectangle3-largeSlate's crime correspondent, Justin Peters, has this notable new commentary headlined "Dear Judges: Your Creative Punishments Are Hilarious and Also Terrible. Please Stop."  I will reprint below the commentary in full (with original links also reproduced) because I always find these kinds of (purportedly rightous) attacks on creative shaming sentences puzzling and curious:

If there’s one thing Americans love, other than the troubled-restaurant-turnaround stylings of Gordon Ramsay, it’s judges who impose “stunt” sentences on defendants. These sorts of stories crop up a couple of times per year, and they always seem to make the “lighter side” segment on the 10:00 news.  The most recent example of this comes from Cleveland, where Judge Pinkey Carr sentenced a man named Richard Dameron, who threatened a police officer, to stand outside a police station wearing a sign that read “I apologize to Officer Simone and all police officers for being an idiot calling 911 threatening to kill you. I'm sorry and it will never happen again.” To give the sentence a personal touch, the judge hand-lettered the sign herself.  These sorts of “Oh, snap!” sentences are undeniably funny.  But are they actually legal?  Do public humiliations like these constitute cruel and unusual punishments?

Legislatures generally give judges a lot of latitude to freestyle from the bench, as long as they can make the case that their funny punishments serve some sort of rehabilitative purpose.  Federal courts have supported creative sentencing, too. In 2004’s United States v. Gementera, the Ninth Circuit ruled that a district court judge was well within his rights to sentence mail thief Shawn Gementera to, among other things, stand outside a postal facility wearing a sign that read “I stole mail; this is my punishment.” In his opinion, Judge Diarmuid O’Scannlain (!) determined that “the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public.”

So these sentences, although unusual, are not seen to be unconstitutionally cruel.  And they clearly stem from valid frustration with America’s imperfect criminal justice system, which sends convicted criminals into dangerously overcrowded prisons, fails to rehabilitate them, and then releases them back into society, where they are apt to offend again.  It’s a frustrating cycle, and so you can understand why, rather than send an abusive father to prison, a judge might think it more effective to have him sleep in the same doghouse where he allegedly used to banish his son, or to sentence a burglar to have something valuable stolen from his house.  Call it poetic justice.  Call it common sense.

But as George Washington University law professor Jonathan Turley has written, poetic justice rarely has anything to do with legal justice.  The entire point of a code of laws is to move away from “common sense” justice and its attendant inconsistencies, and to professionalize the process by establishing a standardized list of crimes and punishments that’s valid in all jurisdictions.  The judiciary’s role is to interpret these laws and pass judgment on behalf of the state; judges are theoretically elected or appointed based on their supremely nuanced understanding of these laws, not based on their ability to hand-letter punitive signage.  This doesn’t mean that the system always works.  But it’s meant to ensure that, at the very least, the system proceeds with a measure of fairness and dignity.

Theatrical, cornpone deviations from this standard undermine the judicial system.  A sentencing hearing becomes less about the state passing judgment on a convicted criminal than an individual judge imposing her standards of right and wrong.  Our criminal justice system might not work very well.  But it ought to be fixed in the legislatures, not on an ad hoc basis by grandstanding judges who act as though they won their robes in a raffle. Public shaming is better suited for courtroom reality shows, which, indeed, is where one of stunt sentencing’s most famous practitioners — Judge Joe Brown — ended up. If that’s where Judge Pinkey Carr is bound, then I wish her well, and I hope she gets there soon, because her brand of homespun, alternative justice has no business in a real courtroom.

In short, this commentary recognizes that both the Constitution and legislatures permit shaming sanctions if and when, to quote the Ninth Circuit, they seek to serve the "stated and legitimate statutory purpose of rehabilitation and ... for general deterrence and for the protection of the public." In addition, this commentary seems to acknowledge that in many cases, the traditional punishment of locking someone in a cage often will not effectively or efficiently serve these purposes.  Nevertheless, apparently because a judge's purported role is to "to interpret [criminal] laws and pass judgment on behalf of the state" and because the criminal justice system is to proceed "with a measure of fairness and dignity," then creative shaming punishments somehow "undermine the judicial system." 

Huh?  For me this kind of argument and its fuzzy logic just does not compute.  Perhaps this is fundamentally because I see very little "fairness and dignity" coming from locking humans in cages, but it is also because there is anecdotal evidence that creative shaming sanctions may be significantly more effective than imprisonment in serving the express statutory sentencing purposes set forth by Congress and state legislatures. 

If and when data indicate creative sanctions are less effective than imprisonment at achieving public safety, I will be moved by the notion that such punishments are bad policy.  If and when Congress or state legislatures expressly prohibit shaming sactions because the people's representatives conclude such punishments "undermine the judicial system," then I will support claims they are unlawful.  Until such time, and especially because I also think our traditional punishments "might not work very well," I have a hard time being convinced by reactionary criticisms of seemingly reasonable efforts by seemingly well-meaning judges to try to make the criminal justice system they help administer work just a little better for all of society's benefit.

I sometimes think that what really explains these kinds of criticisms of creative shaming sanctions is the discomfort that the critic feels from having to see on full display and then think seriously about the many ugly realities of crime and punishment in our modern criminal justice systems.  When tens of thousands of defendants are sent away to prison every year in the United States, and thus effectively hidden away from public view (absent hunger strikes or suicides or other dramatic and harmful actions), those who do not regularly encounter many crime victims and/or criminal defendants need not think too much to the ugly modern realities of crime and punishment in our modern criminal justice systems.  But when a just few defendants are given creative shaming sanctions each year by seemingly well-meaning judges who are trying to improve the system, we all must confront the disconcerting reality that these kinds of punishment may actually be a significant improvement over the "traditional" status quo. 

I understand why the notion that creative shaming sanctions are a possible improvement over traditional punishment is a reality that could be deeply disconcerting to those who want to champion (and cling to) high-minded conceptions of the importance of "fairness and dignity" in our criminal justice system.  But attacking judges who are looking for novel sentencing alternatives which could be more effective and efficient than locking humans in cages is, in my view, an example of shooting the messenger because you do not like the real-world news being delivered through these kinds of punishments.

September 6, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, September 03, 2013

"Mercenary Criminal Justice"

The title of this post is the title of this notable new paper by Wayne Logan and Ronald Wright now available via SSRN. Here is the abstract:

Today, a growing number of bill collectors are standing in line to collect on the debt that criminals owe to society.  Courts order payment of costs; legislatures levy conviction surcharges; even private, for-profit entities get a piece of the action, collecting fees for probation supervision services and the like.  While legal financial obligations (LFOs) have long been a part of the criminal justice system, recent budget cutbacks have prompted an unprecedented surge in their use.  The resulting funds are dedicated to sustaining and even expanding system operations.  With this shift, criminal justice actors have become mercenaries, in effect working on commission.

While a significant literature now exists on the adverse personal consequences of LFOs for offenders, this article is the first to examine their legal and institutional ramifications. Although any single LFO might be justifiable, the cumulative effects of assessed LFOs might overwhelm offenders.  Further, when criminal justice actors find themselves collecting payments that benefit their own institutions or entities, there comes systemic risk of self-dealing.  To mediate these threats, the article proposes use of LFO commissions, which could inventory and assess the propriety of current and proposed LFOs, and monitor their use going forward.

September 3, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 02, 2013

"Against Juvenile Sex Offender Registration"

The title of this post is the title of this notable new paper by Catherine Carpenter now available via SSRN. Here is the abstract:

Imagine if you were held accountable the rest of your life for something you did as a child?

This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration.  And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives.

No matter the constitutionality of adult sex offender registration — and on that point, there is debate — this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses.  Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior.  And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent.

Compounding the problem is mandatory lifetime registration for child offenders.  This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida.  This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders.

Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children.  And on that issue, we are failing.  The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation.  In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.

September 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Thursday, August 29, 2013

Second Circuit upholds huge securities fraud restitution award (without any real Sixth Amendment discussion)

A unanimous Second Circuit panel opinion this morning in US v. Gushlak, No. 12-1919 (2d Cir. Aug. 30, 2013) (available here) upholds a restitution award of over $17 million based on seemingly debatable fact-finding by a federal district judge.  Here is how the lengthy opinion starts and ends:

Defendant-appellant Myron Gushlak challenges, on various grounds, the May 15, 2012, restitution order entered against him in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge). The order, which was entered pursuant to the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A, awarded a total of $17,492,817.45 to victims for losses stemming from Gushlak's role in the manipulation of the price of a publicly traded security. We affirm....

We return to where we began, the inexpertness of most judges in most technical matters, including the forces afoot in the securities markets and their impact on the prices for any particular security at any particular time. We must therefore rely on the testimony of professionals with appropriate expertise. The district court took great pains in addressing the restitution issues over an extended period of time, requiring repeated efforts by the government to obtain a proper valuation for losses under the particular circumstances, and in light of the peculiar challenges, presented by the case before it. It relied on a qualified expert as a guide. We can identify no clear error of fact or mistake of law that the court committed in reaching, with such care, its result.

Based on a quick scan of the opinion, I see no obvious basis to fault or even question the panel's formal analysis of restitution here in Gushlak. But, as the title of this post suggests, I am quite surprised that the defendant apparently here did not argue that the Supreme Court's June 2012 opinion in Southern Union now requires reconsideration of the circuits' prior rulings that the Sixth Amendment jury trial right is not implicated by judicial fact-finding in support of statutory-based restitution punishment.

Though I am not aware of any major rulings reconsidering this Aprrendi-land issue after Southern Union, I am sure that the decision in Southern Union included significant language that provides a strong basis for such reconsideration. And, with over $17 million dollar at stake and with judicial fact-finding apparently so challenging and contestable in a case like Gushlak, I think a Sixth Amendment argument could have had at least some extra traction in a case like this.

August 29, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, August 27, 2013

"Is it fair for sex offenders to stay listed on a registry for life?"

The title of this post is the headline of this recent lengthy article in the St. Louis Post-Dispatch. Here are excerpts:

On one side of the latest debate over Missouri’s sex-offender registry are people such as Daniel Ray Winfrey. In 1991, when Winfrey was 15, he and three others raped and murdered sisters Julie and Robin Kerry at the Chain of Rocks Bridge near St. Louis.

Winfrey testified against his co-defendants in exchange for a 30-year prison sentence. Though back in prison, he has been paroled twice since his conviction. At those times, he was free but still listed on the state’s sex-offender registry website. That website, Gov. Jay Nixon argues, is the only way for most neighbors and others to know of the potential danger while such offenders are among them.

“You wouldn’t want to know if one of these guys moved in next door?” Nixon asked last week. He was defending his veto of a bill that would remove from the website all offenders who, like Winfrey, were under 18 when they committed their crimes.

On the other side are people such as Ali Nemec’s fiancé. He was 17 when he was arrested for having child pornography on his computer. Now 24 and still listed on the registry website, he’s had difficulty at work, has been been turned away from housing and lives with his parents.

“We can’t go to a park, we can’t go to a mall. If there’s an event with our friends near a school, we can’t go,” said Nemec, 23, of St. Peters. “He made a mistake ... (but) he is not the boy that he was. There’s no reason to ruin him for the rest of his life.”

The registry is today’s ultimate “scarlet letter.” Long after they’ve served their time, sex offenders remain barred from parks and schools and limited in their employment and housing options. Their names and faces are posted on the Internet, easily accessible to friends and neighbors.

In Missouri, they stay listed for life, even if they were juveniles when they committed their crimes. The state Legislature passed this year a bill to change that. Nixon vetoed it, potentially setting up an emotionally charged veto fight next month.

The bill would remove from the sex-offender registry website hundreds of offenders such as Nemec’s fiancé and Winfrey, whose crimes were very different but who were both under 18 when they committed them. By one estimate, the bill would cull about 870 names from the more than 13,000 on the site, in addition to future offenders in the same situation.

Those offenders would still be listed on the registry itself, accessible to law enforcement and anyone from the public who requests the information. But the bill would allow the offenders to petition for complete removal from the registry starting five years after the end of their sentences.

“These kids have served their debt to society. They are adults now and haven’t done anything wrong since,” said Rep. Dave Hinson, R-St. Clair, a co-sponsor of the measure. He and others note that listed offenders have high unemployment rates because many employers won’t hire them. “We’re just trying to give them another shot at being productive citizens.”

Nixon, a Democrat, vetoed the bill in July, arguing that it makes no distinction between relatively minor offenders and those who used force or violence. In a news conference at St. Louis police headquarters last week, defending the veto amid the backdrop of uniformed officers, the governor warned that the measure could make Missouri a haven for sex offenders from other states who want to hide from their pasts....

In Missouri, and nationally, the issues connected to sex-offender registries — who should be on them, how long they should stay listed — have been in flux for years, with opposing interests battling to tighten or loosen the requirements.

The concept behind the lists is that because of the high rate of repeat offenses among sex offenders, the public needs to be warned of their whereabouts even after their sentences are served. Civil libertarians have long argued that this amounts to an unconstitutional open-ended punishment, but courts have generally upheld the registries....

Missouri’s system is tougher than some because once a person is on the list, he or she is on it for life, regardless of the severity of the original crime or the offender’s age at the time. Illinois, in contrast, has a lifetime tier and a 10-year tier, based on the details of the crime. People who commit crimes as juveniles have to register, but they aren’t listed on the registry’s public website....

Critics claim that the registry nets are cast so widely they often catch people who most would agree aren’t sexual threats. One commonly cited example are the so-called “Romeo and Juliet” offenders, who had consensual sex with teenage lovers, sometimes when they themselves were teenagers. Critics say those pitfalls in the system are especially ominous in Missouri, where juvenile crimes are listed for life.

August 27, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack

Saturday, August 24, 2013

Debate continues after Mizzou Gov vetoes bill to take juve sex offenders off registries

As reported in this AP piece, headlined "Vetoed bill could affect 870 Mo. sex offenders," the Show Me state is showing all of us how a focused debate over juvenile sex offenders can play out these days. Here are the basics:

A Missouri bill removing the names of juvenile sex offenders from public registries could affect hundreds more people than originally estimated and help hide the whereabouts of some high-profile offenders, Gov. Jay Nixon said Wednesday.

The Democratic governor pointed to new figures and specific examples of sex-offenders as he traveled to St. Louis and Kansas City to try to build a case for why legislators should sustain his veto of the bill....  Republican legislative leaders have said the measure is a likely target for a veto override, noting that it passed originally with overwhelmingly support.

Under the bill, people who are younger than 18 when they commit sex offenses would no longer appear on law enforcement websites that list the home addresses and physical description of sex offenders.  Adults who are currently listed because of sex offenses committed as juveniles also could be removed from the public registry five years after their convictions or release from prison.

Supporters of the bill have said the public registries leave a permanent mark on adults who may have been convicted as teenagers for consensual sexual activities with younger juveniles.  They have said such people deserve a second chance outside of the public spotlight.

The bill passed the House 153-0 and the Senate 28-4 earlier this year. Nixon has said the legislation would weaken state laws and undermine public safety....

"The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to help keep their families safe, are not," Nixon said.

The governor's office distributed information about specific sex offenders who could be removed from the list if lawmakers were to override his veto.  Among them is Daniel Winfrey, who was 15-years-old in April 1991, when sisters Julie and Robin Kerry were raped and killed at the Chain of Rocks Bridge over the Mississippi River in the St. Louis area.  Winfrey pleaded guilty to second-degree murder and rape after agreeing to testify against several others involved in the crime.

Other offenders that the governor's office cited as likely to be removed from the public registry included men who had been convicted as juveniles of rape, sexual assault and sodomy against children who were ages 5, 6, 7 and 8.

Nixon spokesman Scott Holste said the legislation would benefit people who committed "heinous" acts. "These aren't Romeo and Juliet people we're talking about here," Holste said.

August 24, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, August 20, 2013

"North Carolina appeals court strikes social media ban for sex offenders"

The title of this post is the headline of this local press report on a notable intermediate state appeals court ruling today.  Here are the details:

The North Carolina Court of Appeals on Tuesday struck down North Carolina's ban on registered sex offenders using social media sites like Facebook and Twitter. The court said the ban in N.C. General Statute 14-202.5 "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify."

"The statute violates the First Amendment's guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court's judgment," wrote the court.

The ruling centered around a Durham case in which Lester Gerard Packingham appealed his felony conviction for accessing a commercial networking site last year. According to the trial records, the Durham Police Department was looking at evidence that registered sex offenders were using the websites MySpace and Facebook, and an officer recognized Packingham's photo on Facebook.

The North Carolina law says registered sex offenders may not use commercial social media sites if they know the site "permits minor children to become members or to create or maintain personal Web pages."

But in its ruling, the appeals court said the law "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal [of preventing contact with children.]"

North Carolina Attorney General Roy Cooper wanted the law but admits it may have to be rewritten, but he will try to appeal the North Carolina Supreme Court. Cooper notes that there are still laws on the books that investigators can use to charge suspects with soliciting children online. However, he believes we need a law to try to prevent child sex crimes before they happen....

If Cooper's attempt at an appeal fails, he says he will go back to the legislature to see if they can craft a new sex offender social media law that will withstand a legal challenge.

The full 21-page opinion in NC v. Packingham, No. 10 CRS 57148 (N.C. App Aug. 20, 2013), is available at this link.

August 20, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Tuesday, August 13, 2013

New Nebraska study suggests sex offender registry changes pushed by feds may do more harm than good

Ne-sex-offender-recidivism-report2-p1-smallAs reported in this notable local piece, headlined "UNO report: Nebraska sex offender law 'founded more on public emotion than good science'," an important new study suggests that state sex offender registry laws have perhaps been made less effective as a result of reforms prodded by new federal sex offender laws. Here are highlights from the report on the report:

A newly released report questions whether public safety has improved since Nebraska adopted a state law that requires all convicted sex offenders to be listed on a public website.

The law, known as the Adam Walsh Act, was passed in 2009, but has been criticized as being too harsh on former offenders who committed minor crimes, are low risks to reoffend and have now become productive, law-abiding citizens....

On Monday, a report done by the University of Nebraska at Omaha’s Consortium for Crime and Justice Research concluded that the Adam Walsh Act “was founded more on public emotion than good science, which is its fundamental shortcoming.”

The 58-page document stated that Nebraska’s previous system of sex-offender registration, which required only that the highest risk offenders be listed publicly, “did not seem to be broken.” The report, though, stated that it could not be discerned if the previous, or new, registration system was superior in deterring repeat sex offenses.

The adoption of the Adam Walsh Act in Nebraska was controversial and spawned a lawsuit by a group of convicted sex offenders, who said it violated their constitutional rights. It was also praised for removing the subjective decision of whether an offender was at low or high risk to reoffend....

Prior to 2009, only the names and photographs of sex offenders who had committed the most serious offenses and were deemed by the patrol as most likely to reoffend were publicized on the patrol’s website. Under the old system, those who committed minor offenses and were considered a low risk were required to register with law enforcement agencies, but their information wasn’t made public.

Nebraska’s Adam Walsh Act, Legislative Bill 285, required that all sex offenders — low risk and high risk — have their photos and addresses posted on the state website, and to report to local law enforcement officials. The photos are to stay for 15 years for misdemeanor offenses, but as long as 25 years to life for more serious offenses.

The Legislature’s Judiciary Committee two years ago discussed whether to exclude low-risk offenders from the public website, but instead decided to seek more information, via the UNO report, which cost $60,000....

State Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee, said the UNO report provides better data for lawmakers on which to judge the effectiveness of sex offender registries. He said his committee may look at revamping the registration requirements of lower-risk offenders, but that overall, the report showed him that it’s not necessary to repeal the entire Adam Walsh Act. “I don’t see that changing registration laws and going back to tiering them is the answer,” Ashford said.

The senator added that the report’s data will aid his effort to reform state criminal sentences to ease the state’s chronic prison overcrowding. Treating sex offenders outside of prison must be considered, Ashford said, because among state prison inmates, sex offenders make up one of the largest categories....

Among the UNO report’s other findings:

» Recidivism rates for sex offenders were low — more than 97 percent do not reoffend — but were lower following the passage of the Adam Walsh Act. For instance, the recidivism rate for Level 2 (medium-risk) offenders was 0.5 percent after passage of the act and 2.5 percent before....

» Registries that show the addresses of offenders could provide a false sense of security because most sex offenders do not commit crimes in their own neighborhoods. Only 7 percent of such crimes were committed within a mile of an offender’s residence.

The full report, titled simply "Nebraska Sex Offender Registry Study," is available at this link.

August 13, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack