Wednesday, October 01, 2014
"The Curious Disappearance of Sociological Research on Probation Supervision"
The title of this post is the title of this new paper available via SSRN. The piece strikes me as timely, intriguing and important. It is authored by sociologist Michelle Phelps, and here is the abstract:
At the start of the prison boom, scholars in the U.S. vigorously debated the future of “alternative” sanctions, particularly community supervision, and whether they represented a true avenue for potential decarceration or a widening of the net of social control. Community supervision, particularly probation, was central to these debates and the empirical literature. Yet as the carceral state ballooned, sociological scholarship on punishment shifted almost entirely to imprisonment (and, to a lesser extent, parole supervision), despite the fact that probationers comprise nearly 60 percent of the correctional population.
This article invites criminologists to turn their attention to sociological or macro-level questions around mass probation. To help start this new wave of research, I provide an intellectual history of sociological research on probation and parole, review the national-level data available on probationers and probationer supervision today, and outline an agenda for future research.
Tuesday, September 23, 2014
Split NJ Supreme Court holds that state's sex offender GPS tracking is punishment subject to ex post facto limits
As reported in this local article, headlined "Some sex offenders can't be forced to wear GPS monitors, N.J. Supreme Court rules," the top state court in the Garden State issued a significant constitutional ruling concerning GPS tracking of sex offenders. Here are the basics:
New Jersey cannot force sex offenders to wear GPS tracking devises if they were convicted before the monitoring program was signed into law seven years ago, the state Supreme Court ruled in a split decision today.
The court voted 4-3 to uphold an appellate panel's decision that said it was unconstitutional for the state Parole Board to require George C. Riley to wear the ankle monitor when he was released from prison in 2009 after serving 23 years for attempted sexual assault of a minor.
Justice Barry Albin wrote today that the Riley, 81 of Eatontown, should not be subject to the 2007 law because it constitutes an additional punishment that was not included in the sentence he already served.... A spokesman for the Parole Board did not respond when asked how many released sex offenders could be affected by the ruling.
Riley was convicted of trying to have sex with an 11-year-old girl in 1986. At the time, New Jersey law did not allow a sentence that included parole for life. But while Riley was in prison, the state enacted Megan's Law in 1994, requiring sex offenders to not only register with local authorities upon release but be placed under parole supervision for life. Then, in 2007, Gov. Jon Corzine signed the Sex Offender Monitoring Act, requiring the state's most dangerous sex offenders to wear GPS devises.
When Riley was released two years later, court papers say, he was not subject to any parole supervision. But he was designated a Tier III offender under Megan's Law — which applies to those who are considered a high risk for committing another offense. Under that tier, Riley was subject to "Internet registration and the most comprehensive degree of community notification," court papers say.
Six months later, though, Riley was told he would need to wear the pager-sized monitor on his ankle 24 hours a day and 7 days a week and carry a cell phone-sized tracking unit when he left his home, the papers say The devise must also be plugged into an electrical outlet to be charged one to two hours each day, the papers say. During that time, Riley could not move further than the length of the cord. And he was assigned a parole officer with access to his home. Riley would be subject to prosecution for a third-degree crime if he didn't comply....
The Supreme Court ... agreed with the lower court that the "retroactive application" of Riley to the GPS program violates the ex post facto clauses in the U.S. and state Constitutions, which safeguard against imposing "additional punishment to an already completed crime." The court also rejected the state's argument that the GPS monitor is not punitive but "only civil and regulatory."
"Parole is a form of punishment under the Constitution," Albin wrote for the high court. "SOMA is essentially parole supervision for life by another name." Albin added that "the disabilities and restraints placed on Riley through twenty -four-hour GPS monitoring enabled by a tracking device fastened to his ankle could hardly be called 'minor and indirect.'" The court also rejected the state's assertion that the Parole Board made its decision as a result of the Megan's Law designation, saying that designation "was based primarily on Riley’s previous sexual-offense convictions."
The full ruling in Riley v. New Jersey State Parole Board, No. A-94-11 (NJ Sept. 22, 2014) is available at this link.
September 23, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack
Wednesday, September 10, 2014
The title of this post is the title of this notable and interesting new paper by Alexandra Natapoff now available via SSRN. Here is the abstract:
As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike.
But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions.
The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.
September 10, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
Sunday, September 07, 2014
Editorial laments how some part of Ohio are "addicted to prisons"
The Toledo Blade has this lengthy new editorial headlined "Addicted to Prisons" that discusses lots of interesting facets of Ohio's criminal justice system. Here are excerpts:
Stark differences in judges, as well as access to local treatment programs, have created appalling disparities in how justice is handed out to addicts and nonviolent drug offenders in Ohio. Two cases involving heroin addicts, portrayed today in a front-page column by The Blade’s deputy editorial page editor, Jeff Gerritt, show what Ohio is doing right and what it continues to do wrong.
In Hardin County, Kaylee Morrison, 28, was just sentenced to four years in prison, where she will cost taxpayers $100,000 while failing to get the help she needs to manage her addiction. In neighboring Marion County, Clayton Wood, 29, was sentenced to drug court, where he gets treated in his community while working full time and paying taxes.
Ohio’s heroin and opioid epidemic has rocked the state’s criminal justice system, flooding its crowded prisons and burdened courts with addicts and minor drug offenders who would be more effectively — and inexpensively — treated in their communities. Of the more than 20,000 people entering Ohio’s prisons each year, the share of inmates admitted for opioid- and heroin-related crimes has increased more than 400 percent in the past 13 years.
Moving Ohio to a more cost-effective, rational, and humane criminal justice system will take, among other things, more drug courts, sentencing and code reforms, and a significant shift of resources from state prisons to community-based treatment programs....
Statistical profiles of the state’s incoming inmates underscore the need for change. They show many low-level offenders with short sentences that community-based sanctions could handle more effectively at a fraction of the $25,000 a year it costs to imprison them.
More than 5,000 people a year go to prison in Ohio for drug crimes, mostly low-level offenses. Almost the same number of incoming prisoners — most of them addicts — have never been arrested for, or convicted of, a violent offense. Moreover, nearly 45 percent of those who go to prison each year in Ohio — almost 9,000 people — serve less than a year. That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison.
Incarcerating minor drug offenders is costing Ohio tens, if not hundreds, of millions of dollars. Ohio taxpayers get little return on that investment, as untreated addicts return to their communities unequipped to cope with their disease.
Adult felony drug courts, which combine treatment with more-frequent but shorter sanctions, offer an excellent alternative. Residents of every Ohio county should have access to one. Still, such specialized dockets, with assigned probation officers, exist in fewer than a third of Ohio’s 88 counties....
With or without drug courts, judges need sufficient resources in their communities to treat drug addiction and serve as cost-effective alternatives to incarceration. Such programs give judges more sentencing options.
Nearly 10,000 offenders leave Ohio’s prisons each year with an intense history of addiction. As part of its re-entry efforts, DRC must ensure they are linked to treatment programs immediately after they’re released, including support groups and medication-assisted treatment.
Finally, the administration of Gov. John Kasich and the Ohio Supreme Court, through symposiums and other outreach effects, should educate all Ohio judges on how addiction works. Likewise, the General Assembly must make sure that Ohio’s legal code doesn’t mandate inappropriate or ineffective penalties and sanctions for offenses that are rooted in addiction.
The growing number of addicts and low-level drug offenders in Ohio’s costly and crowded prisons is a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its opioid and heroin epidemic. Changing course will require a far greater understanding of addiction among those who make and execute Ohio’s laws and criminal code, and a seismic shift in resources and investments from the state’s prisons to its struggling communities.
The article referenced in the first paragraph of this editorial is headlined "Criminalizing addiction: Whether drug users go to prison depends on where they live," and it is available at this link.
Friday, August 29, 2014
"Mass Probation: Toward a More Robust Theory of State Variation in Punishment"
The title of this post is the title of this intriguing new paper by Michelle Phelps available via SSRN. Here is the abstract:
Scholarship on the expansion of the criminal justice system in the U.S. has almost exclusively focused on imprisonment, investigating why some states lead the world in incarceration rates while others have restrained growth. Yet for most states, the predominant form of punishment is probation, and many seemingly progressive states supervise massive numbers of adults on community supervision. Drawing on Bureau of Justice Statistics data from 1980 and 2010, I analyze this expansion of mass probation and develop a typology of control regimes that theorizes both the scale and type of formal punishment states employ. The results demonstrate that mass probation rearranges scholars’ conclusions about the causes and consequences of the penal state.
Saturday, August 23, 2014
Residency restrictions keep NY sex offenders confined after serving their senetence
The problematic consequences of some sex offender residency restrictions is highlighted in this recent New York Times article headlined "Housing Restrictions Keep Sex Offenders in Prison Beyond Release Dates." Here is how the article starts:
Dozens of sex offenders who have satisfied their sentences in New York State are being held in prison beyond their release dates because of a new interpretation of a state law that governs where they can live.
The law, which has been in effect since 2005, restricts many sex offenders from living within 1,000 feet of a school. Those unable to find such accommodations often end up in homeless shelters.
But in February, the Department of Corrections and Community Supervision, which runs the prisons and parole system, said the 1,000-foot restriction also extended from homeless shelters, making most of them off limits because of the proximity of schools.
The new interpretation has had a profound effect in New York City, where only 14 of the 270 shelters under the auspices of the Department of Homeless Services have been deemed eligible to receive sex offenders. But with the 14 shelters often filled to capacity, the state has opted to keep certain categories of sex offenders in custody until appropriate housing is found.
About 70 of the 101 sex offenders being held are New York City residents, prison authorities said. Some have begun filing habeas corpus petitions in court, demanding to be released and claiming the state has no legal authority to hold them.
The onus of finding a suitable residence upon release is on the sex offender; the state authorities will consider any residence proposed, but will reject it if it is too close to a school or violates other post-release supervision conditions.
Before February, those who could not find suitable housing would typically be released to shelters like the men’s intake center at 30th Street and First Avenue in Manhattan, once known as the Bellevue Men’s Shelter. But the corrections department changed its approach this year, after reports by a state senator, Jeffrey D. Klein, detailing how sex offenders were living within 1,000 feet of a school, often in homeless shelters. Prison authorities say they are holding the sex offenders until the shelter system notifies them of additional space in the few shelters far enough away from schools, such as on Wards Island.
Friday, August 22, 2014
"The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration"
The title of this post is the title of this intriguing new paper authored by Douglas Evans with the Center for Research and Evaluation at the John Jay College of Criminal Justice. Here is the paper's summary:
Financial debt associated with legal system involvement is a pressing issue that affects the criminal justice system, offenders, and taxpayers. Mere contact with the criminal justice system often results in fees and fines that increase with progression through the system. Criminal justice fines and fees punish offenders and are designed to generate revenue for legal systems that are operating on limited budgets. However, fines and fees often fail to accomplish this second goal because many offenders are too poor to pay them.
To compound their financial struggles, offenders may be subject to other financial obligations, such as child support payments and restitution requirements. If they do not pay their financial obligations, they may be subject to late fees and interest requirements, all of which accumulate into massive debt over time. Even if they want to pay, offenders have limited prospects for meaningful employment and face wage disparities resulting from their criminal history, which makes it even more difficult to pay off their debt.
An inability to pay off financial debt increases the possibility that offenders will commit new offenses and return to the criminal justice system. Some courts re-incarcerate offenders simply because they are unable to settle their financial obligations. Imposing financial obligations and monetary penalties on offenders — a group that is overwhelmingly indigent — is not tenable. States often expend more resources attempting to recoup outstanding debt from offenders than they are able to collect from those who pay. This report explores the causes and effects of perpetual criminal debt and offers solutions for encouraging ex-offender payment.
August 22, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3) | TrackBack
Thursday, August 21, 2014
Pennsylvania Superior Court upholds (most of) sentence requiring former state Supreme Court Justice to write apology
As reported in this local Pittsburgh Post-Gazette article, an intermediate state appellate court upheld most (but not quite all) of the notable sentencing terms imposed on former Pennsylvania Supreme Court Justice Joan Orie Melvin. Here are the basic details of a lengthy and interesting sentencing ruling:
The state Superior Court today affirmed the criminal conviction of former state Supreme Court Justice Joan Orie Melvin, as well as that of her sister, Janine Orie. The panel also affirmed the part of Melvin's sentence requiring her to send apology notes to her former staff and fellow judges in Pennsylvania, but it eliminated the requirement that she do so on a picture taken of her following sentencing in handcuffs.
"The trial court unquestionably staged the photograph for maximum effect," wrote Judge Christine Donohue. "At the time it was taken (immediately after sentencing), Orie Melvin was no longer in police custody and was otherwise free to go home to begin house arrest. She was not in restraints at that time, and the trial court directed that she be placed in handcuffs only to take the photograph.
"The trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues."
The Superior Court panel said it would enforce the idea of writing apology letters because, it "adresses the trial court’s intent to rehabilitate her by requiring her to acknowledge her wrongdoing."
As part of its 114-page opinion, the court also reversed the order of Common Pleas Judge Lester Nauhaus, who in November stayed Justice Melvin's criminal sentence in its entirety pending appeal.
Justice Melvin was found guilty of six of seven counts against her, including theft of services, conspiracy and misapplication of entrusted property. Judge Nauhaus ordered her to serve three years of house arrest, pay a fine, work in a soup kitchen and write the letters of apology.
"The Scarlet Letter of the Law: A Place for Shaming Punishments in Arizona"
The title of this post is the title of this paper by Michael Lee Dynes and Henry Edward Whitmer recently posted on SSRN. Here is the abstract:
Trends in penological methods come and go, changing as a society’s attitude shifts, knowledge increases, and experience grows. A recent trend in modern sentencing methods has demonstrated a renewed interest in shaming punishments. Supporters of this trend point to the apparent ineffectiveness of a general system of fines, probation, and incarceration; they see a need for more specifically tailored punishments as a reason to promote shaming punishments. Opponents argue that society was wise to abandon most types of shaming punishments.
The purpose of this Article is to further the discussion regarding punishment options available to courts and to consider a wider use of shaming punishments in certain circumstances. Shaming punishments may be particularly effective if they are tailored to criminals convicted of specific crimes, especially criminals having middle to high socioeconomic class status and who may lose social standing if their criminal activities are made public. This Article begins with a brief history of shaming as punishment, followed by examples of modern shaming. Next, this Article explains and considers the criticisms of judicial sanctions designed to induce shame in an offender, and it discusses penological justifications for shaming. Finally, the Article discusses potential uses for shaming punishments in Arizona and recommends that Arizona courts expand the use of shaming punishments — as an addition to current statutorily-available punishments — for criminals of mid to high socioeconomic status.
Tuesday, August 19, 2014
Washington appeals court strikes down sign-holding shaming sanction as statutorily unauthorized
Regular readers know I am always intrigued by novel punishments, especially in the form of shaming sanctions. Consequently, I was pleased when a helpful reader altered me to a notable new Washington appellate court opinion striking down a notable shaming sanction. Here is how the short opinion in Washington v. Button, No. 44036-9-II (Wash. App. Div. II Aug. 18, 2014) (available here), gets started:
Charlotte Ann Button appeals a sentence condition requiring her to stand on a street corner holding a sign stating, "I stole from kids. Charlotte Button." Button contends that the trial court lacked authority to impose this condition and that it violated her rights under the First and Eighth Amendments of the United States Constitution. Because there is no statutory authority for the sign-holding condition, we need not reach Button' s constitutional challenges, and we remand for the trial court to strike the sign-holding condition from her judgment and sentence.
Sunday, August 17, 2014
Noting a legal mess with sex offender registries that is not ok in OK
This local article, headlined "Confusion Continues Over Sex Offender Registry In Oklahoma," spotlights some of the legal challenges that can arise when a jurisdiction keeps tinkering with its sex offender registration laws. Here are excerpts:
After years of revisions laws concerning Oklahoma sex offenders, there is still confusion over the offender registry. Seven years ago, Oklahoma amended the state's Sex Offender Registration Act that requires the Department of Corrections to assess offenders by assigning them to one of three risk levels.
A sex offender's level determines how long they have to register. "Except, this is the confusing part, unless your case was before 2007, and if it was before 2007, those rules don't apply to you unless aggravated applies to you," said defense attorney David Slane. "The legislature has changed the rules repeatedly, then the Department of Corrections is trying to interpret it to thousands of people, and in the meantime, the average policeman is trying to figure out what am I supposed to do, am I supposed to arrest this individual or not."
Slane said the rules are not as black and white as they used to be and calls it legal chaos. Last month, a convicted sex offender was arrested in Edmond for public intoxication. He had been living by a school and told police the 2007 law prevented him from having to re-register as a sex offender. We tried looking the offender up on the Oklahoma Sex Offender Registry, but he wasn't even listed.
The confusing laws are troubling for parents. "Of course it concerns me, you know, especially, when you have little kids around, I would like to know who is living next door to me," said Ivan Alvarez or Tulsa. Stephanie Rodriguez of Amarillo, said she's used the App "MobilePatrol" to see a list of sex offenders nearest her....
There are currently more than 7,000 offenders on the Oklahoma Sex Offender Registry. The Department of Corrections say it is currently reviewing about 1,000 sex offender cases.
Friday, August 15, 2014
More effective Slate coverage of extremes of (and problems with) sex offender registries
As noted in this prior post, this week Slate has published a series of commentaries spotlighting areas in which sex offender registries have become extreme and problematic. All four pieces in the series are now available, and here are the full titles and links to these pieces:
Tuesday, August 12, 2014
"Sex Offender Laws Have Gone Too Far"
The title of this post is the headline of this notable new Slate commentary authored by Matt Mellema, Chanakya Sethi, and Jane Shim which appears to be the first in a series. Here are excerpts:
[The] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, signed by President Bill Clinton in 1994, ... used federal dollars to push every state to create a [sex offender] registry. It worked. Today, all 50 states and Washington, D.C., have them. Since then, Congress has also passed several related pieces of legislation, including two major statutes. Megan’s Law, enacted in 1996, required that the police give the public access to some sex offender registry data, such as an offender’s name, photograph, and address. In 2006, the Sex Offender Registration and Notification Act toughened the standards for who must register and for how long, and it upped the consequences of registration by requiring, for example, periodic in-person visits to police.
The upshot, experts say, is that the United States has the most draconian sex registration laws in the world. As a result, the number of registrants across the nation has swelled—doubling and then doubling again to 750,000 — in the two decades since Jacob’s Law passed, according to data collected by the Center for Missing and Exploited Children....
Is the American approach to sex registration working? Who goes on the registries, for how long, and for what kinds of crimes? Do the answers suggest that they are helping to keep kids safe — or sweeping in too many people and stoking irrational fears?
In seeking answers to those questions, over the last several months, we were surprised to find that one of the sharpest — and loudest — critics of the ballooning use of registries is [Jacob's mother] Patty Wetterling. “These registries were a well-intentioned tool to help law enforcement find children more quickly,” she told us. “But the world has changed since then.” What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.
The logic behind the past push for registries rested on what seem like common sense assumptions. Among the most prominent were, first, sex offenders were believed to be at a high risk for reoffending — once a sex offender, always a sex offender. Second, it was thought that sex offenses against children were commonly committed by strangers. Taken together, the point was that if the police had a list, and the public could access it, children would be safer.
The problem, however, is that a mass of empirical research conducted since the passage of Jacob’s Law has cast increasing doubt on all of those premises. For starters, “the assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,” said Melissa Hamilton, an expert at the University of Houston Law Center, pointing to multiple studies over the years. “It’s a myth.”
Remarkably, while polls show the public thinks a majority, if not most, sex offenders will commit multiple sex crimes, most studies, including one by the Department of Justice, place the sexual recidivism rate between 3 and 14 percent in the several years immediately following release, with those numbers falling further over time. Which number experts prefer within that range depends on how they define recidivism. If you count arrests as well as convictions, for example, the rate is higher, because not all arrests lead to convictions. And if you distinguish among sex offenders based on risk factors, such as offender age, degree of sexual deviance, criminal history, and victim preferences — instead of looking at them as a homogenous group — you may find a higher or lower rate. Rapists and pedophiles who molest boys, for example, are generally found to have the highest recidivism rates. Nevertheless, the bottom line is clear: Recidivism rates are lower than commonly believed.
And in contradiction of the drive to crack down after a random act of sexual violence committed by a stranger, the data also shows that the vast majority of sex offenses are committed by someone known to the victim, such as a family member....
In a series for Slate, we’ll spotlight three areas in which the growth of registries has been unexpected — and, we suggest, unwise.
Tuesday, August 05, 2014
Judge denies Florida sex offender's request to be physically castrated
As reported in this local article, a judge in Florida has felt compelled to reject a sex offender's notable request for a notable alternative punishment. Here are the details:
Lester Leroy Williams is serving ten years in prison for sexually battering a child. Back in 2008, he was also sentenced to 4.5 years of probation. Recently, the 35-year-old Williams made a bizarre request: He wants the state to physically castrate him.
In a letter Williams wrote at the Union Correctional Institution in Raiford, he asked Fifth Judicial Circuit Court Judge Hale Stancil to modify his sentence to include castration at the expense of the state. But Stancil denied the unusual request this past Tuesday, stating his court didn't have jurisdiction to rule over the case.
"In 32 years, I have never had this request before," said Stancil, who spoke about the case for the first time to New Times. "I know there is chemical castration, but I've never had an inmate ask to be physically castrated before. I don't think I have authority as a judge to order such a thing."...
Florida already allows certain sex offenders to receive medroxyprogesterone acetate (MPA) treatment as part of their rehabilitation. MPA, an artificial hormone, is normally used to treat symptoms of menopause in women, but when used by men, it decreases testosterone to pre-puberty levels. MPA has been used on sex offenders for years as a way of reducing the chances of recidivism by diminishing the sexual urges of men who have long histories of committing sex crimes.
According to Florida law, courts must sentence repeat offenders of sexual battery to MPA treatment but may choose to administer it to first-time offenders. The treatment does not replace or reduce any other penalty the court could impose, and the courts can order the treatment to last up to life....
The law stipulates though that instead of undergoing the chemical form of castration, sex offenders may -- of their own volition -- ask a court for physical castration, which is what Williams has done. Though the legal leeway seems to exist, it is rarely chosen -- Williams may be the first in Florida to request it even though he isn't even required to have MPA treatment.
"Sex offenders are wretched," said Maryam Sweirki, 25, a Miami advocate for victims of sexual assault. "If he can't handle his penis, then I'm for his decision to take his weapon away."
However, critics of castration believe it to be a cruel and unusual punishment that violates human and reproductive rights; with other critics arguing the law that allows for MPA castration, though it applies to both genders, is unequal in punishment because it has a greater impact on males. Some of the side-effects related to the drug (besides decreased sexual urges) are: a loss of body hair, hot and cold flashes, impotence, depression, thrombosis, and weight gain.
Though it has been shown to decrease the number of reoffenders, some opponents further argue that castration isn't a panacea for all sex offenders because some of them are motivated to sexually abuse because of intense feelings of hatred and hostility, rather than sexual desire.
Some related older posts:
- Isn't chemical castration worth trying if it works?
- "Sex-Offending Teacher Asks for Castration"
- Alabama legislators discussing castration and other novel punishments for sex offenders
- Are there reliable data on the efficacy of chemical castration?
- "Europeans Debate Castration of Sex Offenders"
- "Argentina province OKs chemical castration for rapists"
- Huff Post commentary urging stiffer sentences and chemical castration for sex offenders
- Virginia state senator urging study of physical castration for sex offenders
- After high-profile child rapes, Koreans talk of physical castration and harsher sentencing for sex offenders
- "Sex offender offers to castrate himself for lighter sentence"
Monday, July 07, 2014
"Do Residency Bans Drive Sex Offenders Underground?"
The very important question in the title of this post is the headline of this discussion (with lots of links) by Steven Yoder at The Crime Report. Here is an excerpt:
California hasn’t been alone in its tough approach to ensuring that formerly incarcerated sex offenders pose no danger after they are released. As part of a wave of new sex offender laws starting in the mid-1990s, about 30 states and thousands of cities and towns passed such residency restrictions — prompting in turn a pushback from civil liberties advocates, state legislators and registrants themselves who argued the restrictions were not only unduly harsh but counterproductive.
But a court decision in Colorado last year could mark a shift in momentum. In the Colorado case, Stephen Ryals, a high school soccer coach convicted in 2001 for a consensual sexual relationship with a 17-year-old student, was sentenced to seven years’ probation and put on the state sex offender registry. Eleven years later, in 2012, he and his wife bought a house in the city of Englewood. But the police department told him he couldn’t live there because of a city ordinance prohibiting sex offenders from living within 2,000 feet of schools, parks and playgrounds — a law that effectively made 99 percent of its homes and rentals off limits to offenders. Englewood police also warned offenders that even in the open one percent, if they contacted a homeowner whose property wasn’t for rent or for sale, they could be charged with trespassing.
Ryals sued, and last August a federal court concluded that the city’s ban went too far. The judge ruled that it conflicted with the state’s existing system for managing and reintegrating sex offenders and could encourage other towns and cities to do the same, effectively barring offenders from the entire state. Englewood has appealed, but two of the state’s five other cities that have residence bans have softened their restrictions since the decision....
In California, scores of cities are rolling back their restrictions after an Orange County court ruled last April in favor of registrant Hugo Godinez, who challenged the county over its ordinance barring sex offenders from entering parks. Godinez, convicted for a misdemeanor sex offense in 2010, was arrested the following year for what he said was mandatory attendance at a company picnic in a county park. In that case too, a state appeals court decided that the county’s ordinance usurped the state’s authority. The appeals court ruling was upheld by the state’s highest court.
Since the Godinez decision, 28 California cities that have similar “presence” restrictions, which ban offenders from entering places like libraries and parks, have repealed those rules. Another 24 say they are revising their ordinances, according to Janice Bellucci, a California attorney.
Since the April decision, Bellucci, who represents the advocacy group California Reform Sex Offender Laws, has sent letters demanding repeal to cities with presence restrictions. She also has sued a dozen other cities that haven’t changed their rules since the decision.
And this year, California’s Supreme Court could make an even bigger ruling — whether to toss the state’s 2,000-foot law itself. A Los Angeles County Superior Court judge found it unconstitutional in 2010, but the city appealed. The judge cited an increase in homelessness among registrants as a key reason. Statewide, the number of homeless registrants has doubled since the law passed in 2006, according to the 2011 Sex Offender Management Board report.
At least two other states — Rhode Island and New York — have been sued since 2012 over their own residency laws.
One finding in the Ryals’ case in Colorado case could resonate in other states. The judge found compelling a 2009 white paper by Colorado’s Sex Offender Management Board concluding that residency bans don’t lower recidivism and could actually increase the risk to the public. According to the paper, that’s because they drive offenders underground or toward homelessness, making them harder for police and probation officers to track....
Those 2009 findings led the Colorado board to go further in a report this January, which recommended that state lawmakers consider legislation prohibiting cities and towns from enacting their own offender residency rules.
Two other states have moved in that direction. The Kansas legislature banned local residency restrictions in 2010. And in New Hampshire, the state House of Representatives has twice approved a bill that would bar local ordinances, though it’s died both times in the state Senate. Bellucci argues that there’s more to come in other states. The “pendulum of punishment,” she claims, is starting to swing the other way.
“For a long time, ever-harsher sex offender laws were being passed and there was no one opposing them,” she told The Crime Report. “After more than a few lawsuits, elected officials are realizing that there’s a downside to this.”
July 7, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (24) | TrackBack
Thursday, June 26, 2014
"What Is Criminal Restitution?"
The title of this post is the title of this notable new article by Cortney Lollar now available via SSRN. Here is the abstract:
A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore no longer serves its traditional purpose of disgorging a defendant’s ill-gotten gains. Instead, restitution has become a mechanism of additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections normally attaching to criminal proceedings.
This Article deploys a novel definition of punishment to situate restitution alongside other forms of punishment. Like all forms of punishment, restitution is imposed subsequent to a criminal allegation, pursuant to a statute motivated by morally condemnatory intent, and resulting in a substantial deprivation or obligation. Because restitution has become a form of punishment, this Article argues that judges should recognize criminal restitution for what it is — victim compensation imposed at the state’s request as condemnation for a moral wrong — and extend to defendants in restitution proceedings all the constitutional protections they enjoyed in earlier criminal proceedings. This means submitting restitution to a jury for determination pursuant to the Sixth Amendment, and subjecting it to the excessive-fines analysis of the Eighth Amendment.
Monday, June 16, 2014
Second Circuit rejects array of challenges to lengthy extension of sex offender registration requirement
For a number of years, sex offenders consistently lost in state and federal courts when challenging various sex offender registration requirements and other restrictions on various grounds. In recent years, however, it seems at least a few registered sex offenders are having at least a little success with court challenges to new sex offender registration requirements that seem especially punitive or onerous. But a Second Circuit panel ruling today in Doe v. Cuomo, No. 12-4288 (2d Cir. June 16, 2014) (available here), provides a useful reminder of the uphill battle registered sex offenders face in court. Here is how the opinion starts:
John Doe appeals from the judgment of the United States District Court for the Eastern District of New York (Amon, C.J.) granting summary judgment in favor of the Governor of the State of New York and the Acting Commissioner of the State of New York Division of Criminal Justice Services on Doe’s as-applied constitutional challenges to the enforcement of certain amendments to the New York State Sex Offender Registration Act. The amendments we are asked to review were enacted after Doe pleaded guilty to misdemeanor attempted possession of a sexual performance by a child, as a result of which he was classified as a level-one sex offender required to register under SORA. The amendments extended the registration requirement for level-one sex offenders from ten years to a minimum of twenty years and also eliminated the ability of level-one sex offenders to petition for relief from registration. Doe argues, among other things, that requiring him to comply with these post-plea amendments violates the Ex Post Facto Clause and the Fourth Amendment, and deprives him of due process and equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983. We disagree and affirm the judgment of the District Court.
Notably, the defendant Doe in this case seems reasonably sympathetic for a registered sex offender: his offense was a misdemeanor charge stemming from possessing a few CP images back in 1999, and he fully complied with all registration requirements for a decade. But, though the defendant presented an array of constitutional claims to argue he should not now be subject to a new extended registration requirement, the Second Circuit said he was Doe out of luck.
Saturday, June 14, 2014
Ohio legislature wisely considering move to make ignition locks mandatory for DUI offenders
Though I often advocate against lengthy federal mandatory minimum prison terms, I am not categorically opposed to legislative sentencing mandates when there is good reason to believe that the particulars of the mandate will likely save lives and have a limited impact on human liberty and the pursuit of happiness. Consequently, I was very pleased to see this story in my local paper today, headlined "All drunken drivers may be subject to safeguard," discussing a proposal in Ohio to make ignition locks mandatory for all drunk driving offenders. Here are the details:
Ohio lawmakers are considering requiring first-time drunken-driving offenders to have an ignition breathalyzer installed on their cars to confirm their sobriety during a six-month penalty period. The law now allows judges to order the ignition interlocks, but the House bill would make their use mandatory. Offenders convicted twice within six years must use the devices.
The bill sponsor, Rep. Terry Johnson, R-McDermott, cites federal figures that ignition-interlock devices reduce DUI re-arrest rates by 67 percent. About 25,000 first-time offenders are convicted each year in Ohio. The devices would replace a system in which first-time DUI offenders are not allowed to drive for 15 days and then can obtain limited driving privileges to travel to work, school and medical appointments.
“There is nothing to ensure compliance and nothing to ensure sobriety unless they happen to get caught again,” Johnson said. “This allows the offender to continue working and to minimize disruption to his life while ensuring public safety to the extent we are reasonably able to do so.”
A change in the bill last week also would require those charged with DUI but convicted of lesser offenses, such as physical control of a vehicle while intoxicated, to install the machines in their cars....
Only about 5,000 Ohioans, including repeat DUI offenders, are required each year to use ignition interlocks, said Doug Scoles, executive director of Ohio MADD. Twenty states now require their use by first-time offenders. “Requiring the use of ignition interlocks for all convicted drunk drivers will help prevent repeat offenses and, in so doing, save lives,” Scoles said.
The State Highway Patrol reports 341 people died in drunken-driving crashes last year. Seventy-seven people have been killed so far this year, 38 fewer that at the same time in 2012.
The bill is dubbed “Annie’s Law” in memory of Chillicothe lawyer Annie Rooney, who was killed last year by a drunken driver now serving eight years in prison. Her family has campaigned for passage of the bill. Lara Baker-Morrish, chief prosecutor for the city of Columbus, calls the legislation “a very good idea.”
“It does curb the behavior we’re trying to get at, and it has been proven to save lives,” she said. Courts would have to find ways to monitor the increase in ignition-interlock reports on drivers and find funding to ensure devices are made available to those who can’t afford installation and monitoring, she said.
I hope my old pal Bill Otis is heartened to hear of my support for a legislative sentencing mandate. I also hope those who advocate forcefully for rigid forms of gun control and for drug control recognize that that drunk drivers often pose a greater threat to innocent lives and the pursuit of happiness than even drunk gun owners or heroin dealers and that clever technologies, rather than crude prohibitions, may be the most politically wise and practically workable means to reduce these threats.
June 14, 2014 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, June 10, 2014
Intriguing new report on "Compensating Victims of Crime"
The folks at Justice Fellowship have just released an interesting new report titled simply "Compensating Victims of Crime" as part of its advocacy for restorative justice programming. This report's Executive Summary includes these passages:
Restorative Justice recognizes that crime harms people. Though most people affected by crime are never able to fully reclaim what was taken, victim compensation funds are a tool used within our criminal justice system to advance the much needed value of assisting victims and survivors of crime. Unfortunately, very little of the billions of dollars placed within these funds goes directly to victims and survivors of crime. This report is an extensive overview of victim compensation funds and highlights some concerns and provides some suggestions for reform.
Victim compensation funds are funded by criminal fines and taxpayer dollars and offer monetary assistance to victims and survivors of violent crime. Though similar in concept to restitution, they differ in eligibility requirements, funding sources, and distribution. Currently, victim compensation funds only provide monetary assistance to a small number of victims and survivors of violent crime. Of the approximately 7 million victims of violent crime per year, only 200,000 receive assistance from a compensation fund. Even more disturbing is the ratio of money spent on compensation compared to that which is spent on corrections. In 2012, federal, state, and local governments spent approximately $85 billion on corrections. In the same year, victim compensation funds paid out approximately $500 million dollars—less than 1% of what was spent on corrections.
This disparity cannot be blamed on a lack of funds. The Crime Victims Fund — a hybrid system funded jointly by federal and state dollars, but administered at the state level —currently retains a balance of almost $11 billion, while some states have additional balances that approach $10 million. Congress, however, has capped the total annual Crime Victims Fund spending at $745 million dollars despite the large pool of victims who are eligible to receive funds. Further, the average maximum amount that victims and survivors can receive from a victim compensation fund is $26,000.
Because victim compensation funds are administered on the state level, states differ in the eligibility requirements. All states compensate for medical expenses, mental health counseling, lost wages, funeral costs, and travel. Many states compensate for crime scene cleanup, attorney fees, rehabilitation, replacement services, and relocation services. Few states compensate for things like pain and suffering, property loss, stolen cash, transportation, return of an abducted child, guide dog expenses, domestic services, home healthcare, and forensic exams in sexual assaults.
Unfortunately, many victims do not receive any compensation. This often occurs simply due to a lack of knowledge about the compensation fund. However, there are numerous other reasons, including the fact that there are fairly stringent requirements that one must satisfy to receive funds. Half of all states require victims or survivors to report the crime to law enforcement within 72 hours. 12 states require a police report to be filed within 5 to 10 days. A majority of the states require victims and survivors to file a compensation claim within one to two years, and several states restrict compensation to victims who have a prior felony conviction in the last 10 years. While these requirements may not seem stringent at first glance, consider that many crimes are not ever reported for fear of retribution, continued victimization, or the stigma that comes with being a victim. Forty-two percent of victims do not report serious violent crimes to law enforcement officials. As a result, they are denied access to compensation funds....
The system currently in place can be vastly improved. The federal cap on the dispensing of funds should be raised to $1 billion. Awareness of these funds must be increased through additional community infrastructure and advocacy. Overly restrictive requirements must be relaxed so that people have a chance to qualify for compensation once they know it is available. Finally, stringent oversight and transparency of state funds for victims is necessary to ensure that the money is being used properly. Increasing awareness, access, and availability of compensation funds will prioritize victims and survivors in the criminal justice system and advance the values of restorative justice.
The full text of Compensating Victims of Crime is available here.
June 10, 2014 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack
Saturday, June 07, 2014
Highlighting challenges when alternatives to incarceration become state priorities
The front-page of my own Columbus Dispatch has this interesting article about the Ohio's sentencing reform efforts and the challenges posed by a troublesome offender for a sentencing system that now seeks to emphasize alternatives to incarceration. The article is headlined "Church theft case tests rule on sentencing," and here are excerpts:
Cash Yoakem admitted that he broke into 29 churches and stole pretty much anything he could find — even communion trays — to fuel his drug habit. He has pleaded guilty to 44 counts of breaking and entering, all fifth-degree felonies, and the 26-year-old Chillicothe man will stand before a judge on Thursday and ask for leniency. Ross County Prosecutor Matt Schmidt will seek four years in prison for him instead.
Schmidt says that if any thief deserves to go to prison, it is Yoakem, who robbed from some of the churches more than once: “He broke into, damaged and stole from places of worship that many in this community consider sacred, thereby damaging their sense of sanctity.”
But under Ohio’s revamped criminal-sentencing laws, Yoakem doesn’t qualify for prison. Probation, yes, or a community-based therapeutic program, but he doesn’t meet the state’s latest criteria for prison for low-level, nonviolent, first-time offenders. Schmidt and Yoakem’s attorney each say this case sets the stage for what could be the first real test of the constitutionality of Ohio’s sweeping criminal-sentencing reforms that took shape in 2011.
At issue is a provision of the law that says that if a court cannot find a suitable sanction for a defendant who does not qualify for prison under the new guidelines, the judge can ask the Ohio Department of Rehabilitation and Correction to make a suggestion as to what local programs are available. The department then can either make a recommendation — which the judge is bound by law to follow — or say it doesn’t have a suggestion, in which case the judge then can send that person to prison if he chooses.
State records show that since the reforms took place, judges in 11 counties have sought a state recommendation a total of 27 times; 12 defendants went to prison as a result and 15 got probation. In Yoakem’s case, the Ross County Common Pleas Court asked for such a recommendation and the state gave none. As a result, it is expected that Judge Scott Nusbaum will sentence Yoakem to prison when he’s due in court on Thursday.
Some judges and prosecutors have long complained about this provision of the sentencing reform. Because one goal of the legislature when it enacted the changes was to see fewer people go to prison, defense attorneys have hailed the changes as positive. In this case, however, it is the defense attorney challenging the constitutionality of the law.
James Szorady, an assistant state public defender and Yoakem’s attorney, said the state prisons department’s involvement is a clear violation of the constitutional requirement for a separation of powers by the legislative, executive and judicial branches of government. “My argument is that the department is now holding sway over the court,” Szorady said. In his sentencing memo to the judge, he writes: “This is clear co-mingling of government branches ... and it is unconstitutional beyond a reasonable doubt.”
State Sen. Bill Seitz, a Cincinnati Republican who was instrumental in writing the changes, said there’s nothing unconstitutional about it because the Department of Rehabilitation and Correction is taking only an advisory role....
The Ohio Judicial Conference, a judges’ association created by state law, opposed this part of the sentencing reform since its inception and has asked the legislature several times to remove it because it’s a clear conflict, said Mark R. Schweikert, executive director of conference. “Frankly, I’m surprised a case hasn’t yet made it to the Ohio Supreme Court,” he said.
Schmidt said he thinks this is exactly where this one will end up. He said the reforms have hampered prosecutors and judges in their ability to punish certain offenders properly, simply to save the state money on housing prisoners, and this case is the best illustration of that so far.
“I’ve been beyond frustrated,” Schmidt said. “The sentencing reforms are not solving crimes and not rehabilitating people. They’re just making it harder to punish people, which is part of what a criminal sentence is about.”
Thursday, May 29, 2014
Report on how Chicago makes it nearly impossible for some sex offenders to register
A helpful reader alerted me to this notable local report from Chicago headlined "Chicago police fail to register sex offenders 601 times in just three months." Here is how the story starts:
On February 13 of this year, Bruce Harley went to the Chicago Police Department Headquarters to register as a sex offender. He was one of 22 people who were turned away that day because the office was simply too busy. That’s according to police records. A month later, on March 21, Bruce Harley was approached by Chicago police officers on the West Side of Chicago.
According to an arrest report, Harley wasn’t doing anything illegal but was “loitering in an area known for narcotic activity.” Officers ran Harley’s name and found he had failed to register. Harley told the officers he had tried to register on February 13 but had been turned away. He was arrested anyway and is now in the Cook County Jail, where it costs taxpayers $52,000 a year to house him.
I first heard about sex offenders being prevented from registering a few months ago. I spent several days waiting in line with offenders outside the criminal registration office at Chicago police headquarters. I couldn’t believe it when officers came out of the office and told dozens of men who had been waiting for hours that they might as well go home because the office was too busy to register them all. Then the officers warned the men that they could be arrested for failing to register even though they’d just waited for hours in line to do just that.
I went back several times and saw the same scenario play out.
Monday, May 26, 2014
California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges
The Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California. The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts:
When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.
With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."
That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.
The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")
The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."
The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.
Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.
Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.
Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."
A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.
Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....
Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.
He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.
He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.
Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)
Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...
Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program. The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....
Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said. He has two. But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.
Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined. So "they should please leave us alone and let local enforcement tackle our own marijuana problems."
Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.
I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.
Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.
Cross-posted at Marijuana Law, Policy and Reform
May 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
"Is public shaming fair punishment?"
The title of this post is the headline of this recent Los Angeles Times commentary by Patt Morrison on an alternative punishment topic I always find interesting. Here are excerpts:
You play the judge: How would you sentence a man who spent 15 years picking on his neighbor and her handicapped children? A Cleveland judge sentenced just such a man, Edmond Aviv, to jail, community service, anger management and mental health counseling — and to spend five hours alongside a busy street on a Sunday in April with a great big sign branding him an intolerant bully.
The 8th Amendment bans cruel and unusual punishment. Is this either one? Or can justice be fairly meted out in something other than years and months behind bars?
In 2012, a different Cleveland judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: "Only an idiot would drive on the sidewalk to avoid a school bus." The woman chose to hold the sign.
Puritan punishments like locking someone's head and hands in the stocks seem like retribution, not justice. In "The Scarlet Letter," Hester Prynne, was an adulterer, not a thief. Puritans believed in shame as a behavior corrector. But Prynne flaunted and even co-opted the "A" she was condemned to wear.
Should shame be a component of punishment? Does taking someone down a peg set a miscreant straight, any more than locking him up? And should it be at a judge's discretion?...
Judges have sentenced a La Habra slumlord to live in his own run-down building under house arrest for two months, and made an Ohio woman who abandoned 33 kittens spend a night alone in the woods. In a case that made the legal textbooks and withstood appeal in 2005, a San Francisco mail thief was ordered to stand on the post office steps with a sign that read: "I stole mail and this is my punishment."
It's hard to track the deterrent effect of such creative punishments because they happen so rarely. And judges have so much power and discretion that creative sentencing could mean wildly and unfairly different punishments for the same crime between one courtroom and the next — one reason that sentencing guidelines and laws exist in the first place.
Daniel Markel, the D'Alemberte professor of law at Florida State University and an expert on sentencing, points out that if these punishments didn't have some efficacy, "there probably wouldn't be much resistance" from miscreants, but "in fact defendants typically don't want to be publicly shamed because they realize there is something publicly humiliating about being exposed in the streets."...
The element of choice that comes up in some kinds of creative sentencing might also give us pause. In California and elsewhere, convicted sex offenders have requested castration — chemical and actual — to get out of prison. Civil libertarians object on "cruel and unusual" constitutional grounds, because it amounts to no choice, and because it gets dangerously close to the medieval notion of cutting off a thief's hands. Markel adds another objection to asking the guilty to pick their poison: "We punish to communicate censure and condemnation. It's for a democracy to make those decisions. We ought not empower defendants to be deciding their punishments."
Edmond Aviv apparently wasn't given a choice. Will public humiliation change his behavior? He had been convicted of harassment before, so it's hard to fault the judge for trying something different. And even though we don't live in Hester Prynne's world anymore, I'll cautiously side with the slice of democracy that told a Cleveland.com reporter they approved the sentence. After all, it "communicated censure and condemnation." In this case, it seems, a bad guy got his just deserts.
A few recent and lots of older posts on shaming sentences:
- Another notable (and astute?) local shaming sentence for elderly bully
- A shameful suggestion for how to make NYC roads and walkways safer
- New commentary calls "creative" shaming punishments "terrible" (on curious grounds)
- Public shaming instead of incarceration in Pennsylvania theft case
- Shaming t-shirts ordered as part of community service sentence
- What punishments really undermine human dignity?
- Shaming punishments and communitarianism
- A proper case for shaming?
- New article on shaming sanctions
- More shame, shame on you
- The state of shaming punishments (with lots of links)
Friday, May 23, 2014
"Treating Prisoners With Dignity Can Reduce Crime"
The title of this post is the headline of this notable new National Journal commentary authored by Nicholas Turner and John Wetzel. The piece's subheadline is "In Europe, prisoners work for real wages and even cook for themselves. And when they leave prison, they don't come back." And here are excerpts:
It sounds like the first line of a joke: "Three state corrections teams and some experts who are old hands at visiting prisons go to meet their warden counterparts in Germany and the Netherlands in mid-January to see what they could learn."
But it's a true story — and what high-level delegations from Colorado, Georgia, and Pennsylvania learned through the Vera Institute of Justice's European-American Prison Project is no laughing matter. What we learned, in fact, has serious and timely boots-on-the-ground implications....
For those of us who visited Germany and The Netherlands, the approach to sentencing and the prison philosophy we saw astonished and inspired us. Not only are far fewer people imprisoned, but even those who have committed serious violent crimes serve far shorter sentences.
In these European countries, prisons are organized around the belief that, since virtually all prisoners will return to their communities, it is better to approach their incarceration with conditions as close to "normal" as possible — with the addition of treatment, behavioral interventions, skills training, and needed education — and to remove them from communities for the shortest possible time so that institutional life does not become their norm.
Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. Inmates have privacy — correctional officers knock before entering — they wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid for work that they do, and have opportunities to visit family, learn skills, and gain education. Inmates are required to save money to ensure that they are not penniless upon release. There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals — to be part of a "therapeutic culture" between staff and offenders, and consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other "dangerous" implements. And their maximum time in any kind of punitive solitary is eight hours.
Prison policies grounded in the belief that prisoners should be treated with dignity were startlingly effective — and have eminently pragmatic implications here at home. The adverse social and economic outcomes for former prisoners in the U.S. are severe — and they are concentrated in communities that are already struggling mightily. With 95 percent of our nation's incarcerated individuals eventually returning home from prison — and 40 percent going right back to prison within three years — we would do well to heed the strategies used in these nations to teach prisoners how to be good and productive citizens that can rebuild their communities....
Are there challenges to wholesale reform? Of course. Money. Infrastructure. Strains of racial division borne of our history and heterogeneity. And, cultural differences especially as relates to violence may mean that some European practices may not translate smoothly to the U.S. Yet we are at a moment of potential for significant shifts. It will require legislation and policy change, including rethinking sentencing for lower offenses and reducing the time for those who must be in prison. But the notion that we should strive to create an environment within our prisons conducive to our goal — to return good citizens to our communities — is a challenge we can and must meet.
Tuesday, May 20, 2014
"Save money, reduce crime: Alternative sentencing works, so Ohio needs to do more of it"
The title of this post is the headline of this notable lead editorial appearing in today's Columbus Dispatch. The Dispatch has a reputation as a pretty conservative paper (e.g., it has endorsed only GOP Prez candidates for nearly a century), so I see this editorial as further significant proof that more and more traditional conservative voices are seeing the value of (and now actively making the case for) sentencing and prison reforms. Here are excerpts from this editorial:
Ohio has made progress in easing prison crowding by offering alternatives for nonviolent offenders. But a look at the numbers shows that more can be done. The good news is, Ohio already knows what works: putting nonviolent felons in programs that make them better prepared to lead crime-free lives rather than in expensive prisons with hardened criminals. The challenge is to find the resources for the up-front investment.
Alternative-sentencing programs, such as the 18 community-based correction facilities and other programs based on drug-and-alcohol treatment and life-skills training, have a record of reducing recidivism. But the state hasn’t invested in them equally across the state, according to Ohio Division of Rehabilitation and Correction Director Gary C. Mohr....
A proposal contained in one of the mid-biennium budget-review bills would provide about $13 million to add 400 to 500 community-facility beds across the state. Because stays in such programs typically are three months, each of those beds could allow three people per year to get help and treatment rather than a prison stay. That saves taxpayers money and increases the chance that the offender will go on to a productive life — a double win.
As Ohio’s prisons grow more crowded and potentially more dangerous, the need for more alternatives becomes clearer. One in every 175 Ohio adults is in a state prison, and with nearly 51,000 inmates, the system has 30 percent more than it was designed for. Considering that each of those inmates costs taxpayers nearly $23,000 a year and that a large number are low-level, nonviolent offenders, it’s an expensive way to deal with societal problems.
A change to state sentencing law in 2011 aimed to ease the burden by steering more nonviolent offenders to community-based correction programs. The largest counties responded, and two years ago the prison population seemed to be on the decline. But Ohio’s wave of heroin and other opiate addictions, combined with too few alternative-treatment options, have swelled the prison population again.... But Mohr now finds himself with a new peak population and no reduction in sight unless the state invests more in alternatives.
Legislators should take note of the successful track record of alternative correction and steer available funds in that direction. Ohio won’t benefit from more prisons; putting low-level criminals in prison is a lousy business model with a poor return on investment. Spending less to provide the type of supportive correction that can turn around lives is a much smarter proposition. And it saves prison beds for those who pose the greatest threat to society.
Recent related post:
Thursday, May 08, 2014
Fascinating discussion of "mom movement" to reform sex offender registration laws
NBC News has this lengthy new piece about efforts to reform sex offender registration laws under the headline "My Son, the Sex Offender: One Mother's Mission to Fight the Law." The full piece is worthy of a full read, and here is how it gets started:
In the run up to Halloween one year, Sharie Keil saw something that really made her jump: Missouri governor Jay Nixon, then the attorney general. He was on television to announce that registered sex offenders were hereby banned from participating in her favorite holiday. On threat of a year in jail, they had to stay inside and display a sign saying they had no candy. The goal was “to protect our children,” as Nixon put it, but Keil heard only a peal of political hysteria.
She is not a sex offender nor, at 63, a new-age apologist for pedophiles or predators. She is a mother, however, and in 1998 her 17-year-old son had sex with a pre-teen girl at a party. He was convicted of aggravated sexual abuse, which got him six months in county jail and a lifetime of mandatory registration as a sex offender. Ten years later, after the Halloween law, Keil felt shocked into action.
”As my husband says, I decided to go on the war path,” she remembers. Today, she’s at the forefront of a growing fight against sex offender registries, a shame-free alliance of offenders and their families, supported by researchers and some advocates who helped pass stringent anti-abuse laws in the first place. They’re organized (albeit loosely) under Reform Sex Offender Laws, a five-year-old lobby that claims 38 state affiliates and a steady patter of legal and legislative victories.
Most of their progress, however, has been limited to a slice of the registry: juvenile offenders. That would remove Keil’s son, but this former soccer mom and chapter head of the League of Women Voters wants to abolish the public registry altogether. She funds a powerful RSOL affiliate, Missouri Citizens for Reform, which has helped push sweeping changes through the Missouri House four years in a row, only to see the effort smothered in the Senate or, last summer, stabbed by a governor’s veto.
“Changing the registry would provide relief for tens of thousands of Missourians,” Keil says. “Since there are nearly 800,000 people on the registry nationally, millions of lives would change for the better.”
As reckless as Keil’s ideas may sound, she and her intellectual allies—among them Nicole Pittman, an attorney who slammed registries in a Human Rights Watch report last year—are fervently opposed to sexual abuse and believe in jail time for law breakers. However, they also hope to realign the law with second-chance ideals and new research that shows rehabilitation is possible, even for America’s last pariahs.
If they succeed, Keil believes, public safety will actually improve. As the registries shrink or disappear, law enforcement will be freed to focus on crime prevention. If the movement fails, she warns, public safety could suffer. Truly dangerous people will be lost in the thousands that police must monitor, while relatively harmless offenders break bad in a system that gives them no hope for a normal future.
Monday, May 05, 2014
Detailing notable legal challenge to juve sex offender registration requirements
The AP has this notable new article headlined simply "Juvenile Sex-offender Registries are Challenged." Here are excerpts:
By the time he was arrested for sexually assaulting two siblings, 15-year-old J.B. had been molested by his alcoholic father and subjected to 25 moves among his birth, foster and adoptive families. He had also suffered from untreated attention deficit hyperactivity disorder and depression.
Though tried in juvenile court, with its focus on privacy and rehabilitation, he was later required by a 2012 Pennsylvania law to register as a sex offender — branded a long-term danger to society, with no way off the list for at least 25 years. Juvenile law advocates campaigning against such automatic registries argue that they undermine the rehabilitative purpose of juvenile law and wrongly force judges to treat offenders the same, no matter their circumstances. In Pennsylvania, local judges increasingly agree with them.
Late last year, a central Pennsylvania judge weighing the cases of J.B., as he is known in court documents, and six others found the registration law violated the state constitution. Now the issue is headed to the state high court.... In the Pennsylvania Supreme Court on Tuesday, juvenile advocates will argue that the registration requirement amounts to cruel and unusual punishment and creates roadblocks for young people trying to rebuild their lives.
Across the country, a growing number of juvenile judges, advocates and policymakers are questioning the effect of the registration mandate Congress passed under the 2006 Adam Walsh Act, named after the Florida boy abducted and killed in 1981. States that don't comply risk losing millions in federal law enforcement grants. A few states, including Texas and California, decided it was cheaper to opt out of the Walsh Act, and the Ohio Supreme Court has since found the juvenile registry unconstitutional....
Prosecutors in York County defend the law. "The standards are not meant to be easy," said Tim Barker, the chief deputy district attorney. "They were created with an eye toward the protection of the public." Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorneys Association, said the law was forced on states by the funding tie-in. But he said he believes the mandate is appropriate in the most serious cases, including one in his county in which a teen raised amid violent pornography assaulted a 3-year-old neighbor....
The Philadelphia-based Juvenile Law Center, which successfully argued J.B.'s case, believes judges need the authority to fashion what they deem appropriate placement and treatment plans. "That's very separate and distinct from saying we're going to put a scarlet `A' on these kids for the rest of their lives," said Marsha Levick, the center's chief counsel.
Recent reports by Human Rights Watch and the Illinois Juvenile Justice Commission — both critical of juvenile registries — found that children lash out sexually for different reasons than adults and are less likely to reoffend. One survey involving about 11,000 young offenders put the recidivism rate at 7 percent, compared with 13 percent for adult sex offenders, according to the Human Rights Watch report.
Nearly all other states compile some sort of registry, although 11 states do so only if the juveniles are tried in adult court. Pennsylvania's law applies to teens 14 to 17 accused of rape, aggravated sexual assault and other serious sex crimes. In practice, though, lesser pleas are often being negotiated to avoid triggering the reporting mandate, prosecutors and defense attorneys said.
Some related posts:
- State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional
- Ohio Supreme Court finds required juve sex offender registration unconstitutional on numerous grounds
- New big Human Rights Watch report assails placing juve sex offenders on registries
- Missouri Gov vetoes bill to take juve sex offenders off state registry
- Illinois commission advocates against putting all juve sex offenders on registry
SCOTUS unanimously rejects defendant's effort to reduce restitution owing under MVRA
The Supreme Court handed down a unanimous ruling in a restitution case this morning. Here is how the opinion for the Court in Robers v. US, No. 12-9012 (S. Ct. May 4) (available here), gets started:
The Mandatory Victims Restitution Act of 1996 requires certain offenders to restore property lost by their victims as a result of the crime. 18 U. S. C. §3663A. A provision in the statue says that, when return of the property lost by the victim is “impossible, impracticable, or inadequate,” the offender must pay the victim “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.” § 3663A(b)(1)(B). The question before us is whether “any part of the property” is “returned” when a victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim.
We hold that it is not. In our view, the statutory phrase “any part of the property” refers only to the specific property lost by a victim, which, in the case of a fraudulently obtained loan, is the money lent. Therefore, no “part of the property” is “returned” to the victim until the collateral is sold and the victim receives money from the sale. The import of our holding is that a sentencing court must reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it.
Friday, May 02, 2014
"Kids, Cops, and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis"
The title of this post is the title of this interesting paper newly posted on SSRN and authored by David Singleton. Here is the abstract:
Sex offenders are today’s pariahs — despised by all, embraced by none. During the past twenty years, society’s dislike and fear of sex offenders has resulted in a flood of legislation designed to protect communities from them. These laws include residency restrictions, which bar convicted sex offenders from living near places where children are expected to be found. Given this climate, do lawyers who for sex offenders have any hope of winning justice for their clients?
In 2005, the Ohio Justice & Policy Center (“OJPC”) began a three year-advocacy campaign against Ohio’s residency restrictions. At first OJPC lost badly — in both the courts of law and public opinion. But after losing the initial legal challenge, OJPC transformed its seemingly lost cause into a winning effort. It did so by borrowing an idea from Professor Derrick A. Bell.
Professor Bell is famous, among other things, for his interest-convergence thesis. According to Bell, blacks achieve racial equality only when such progress it is in the interests of whites. The classic example of Bell’s theory is his explanation of the Supreme Court’s decision in Brown v. Board of Education. According to Bell, the Court desegregated public schools not for moral reasons but because doing so would improve America’s credibility on racial issues during the Cold War.
OJPC eventually prevailed in its challenges to residency restrictions because it aligned the interests of sex offenders with society’s interests in protecting children from sexual abuse. Not only did OJPC win two important legal challenges but it also transformed the local media narrative about residency restrictions.
Kids, Cops and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis begins by telling the story of OJPC’s advocacy — both before and after employing an interest-convergence strategy. The article then poses and answers three questions: (1) whether it is appropriate to attach the “interest-convergence” label to OJPC’s sex offender advocacy given that Bell’s thesis is “historically descriptive rather than a recommendation for future-oriented strategies,” according to Professor Stephen Feldman, a leading scholar; (2) whether interest-convergence theory explains the victories OJPC won for its clients; and (3) assuming that interest convergence has value as an advocacy tool, whether it potentially presents a downside for the marginalized clients the lawyer seeks to serve. I conclude the article with a discussion of a course I developed called Complex Problem Solving for Lawyers, which teaches law students to incorporate Bell’s interest-convergence theory into advocacy on behalf of despised groups like sex offenders.
May 2, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack
Friday, April 25, 2014
Local California sex offender restrictions legally suspect after California Supreme Court (non)action
As reported in this local article, earlier this week that California Supreme Court "left intact a lower-court ruling that invalidates local ordinances aimed at restricting the movements of registered sex offenders in dozens of cities statewide." Local lawyers say this (non)action is a big deal:
The court’s decision Wednesday not to hear a case involving a Southern California sex offender means city and county ordinances banning such offenders from public parks and other public areas no longer may be enforced, attorneys say. Instead, a state law governing where sex offenders on parole may live now stands as the main restriction.
“If I read the tea leaves correctly, it’s probably dead everywhere in California,” Susan Kang Schroeder, chief of staff to Orange County District Attorney Tony Rackauckas said Thursday.
The Orange County District Attorney’s Office had led the effort to tighten restrictions on sex offenders and advised communities in that area on how to enact such ordinances. “We still believe that we were right on the law and we respectfully disagree,” Schroeder said. “We don’t regret the choices that we made in trying to keep sex offenders out of parks and keep children safe.”
The state Supreme Court’s action stemmed in part from an Orange County case in which a registered sex offender in Irvine went to a tennis court at a public park in violation of a local ordinance. The offender pleaded guilty, but a public defender appealed the case and won a ruling that state law trumps such local ordinances, Schroeder said. Her office appealed that to the 4th District Court of Appeal, which agreed with the appellate decision, so the Orange County District Attorney’s Office asked the state Supreme Court to hear the matter.
That court declined to do so Wednesday. It also declined to hear a second, similar case involving an offender who was cited after going to a picnic at a county park. The move effectively invalidates such local ordinances, Schroeder said, and leaves Jessica’s Law, passed by voters in 2006, as the main enforcement tool over paroled sex offenders. That measure, which also has faced court challenges, prevents sex offenders on parole from living within 2,000 feet of schools and parks.
Santa Maria attorney Janice Bellucci, president of a group called “California Reform Sex Offender Laws,” said the Supreme Court’s move is a “major victory” for efforts to provide more rights for individuals who must register on California’s Megan’s Law list of people with sex offenses in their pasts. “It means that our people on the registry — and we have over 105,000 now — can now go to public and private places that they could not go to before,” she said.
Bellucci has been waging a legal battle against such ordinances throughout the state and last month filed suit in U.S. District Court in Sacramento seeking to overturn a South Lake Tahoe measure. The South Lake Tahoe ordinance prohibits sex offenders from being in or within 300 feet of public or private schools, parks, video arcades, swimming pools or other areas where children might congregate. The ordinance allows for single trips traveling past such spots.
Bellucci said 70 cities and five counties in California have enacted such measures, and she has used a client, Frank Lindsay of San Luis Obispo, a registered sex offender, as the face of her lawsuits against such ordinances.... Bellucci said she views the matter as a “civil rights issue” that ultimately should be addressed by legislators to differentiate between people who made a mistake in their past — such as urinating in public or a young adult having consensual sex with a 17-year-old girlfriend, for example — from predators...
El Dorado County District Attorney Vern Pierson said Thursday that the Legislature has failed to address the need for balanced restrictions, something that may lead to new initiative drives. “This is more than anything else due to the Legislature’s inability to craft appropriate legislation to control the behavior and conduct of sex offenders that are out,” Pierson said.
He added that the county had crafted policies he thought were appropriate and similar to those in Orange County, allowing an offender to get written permission from the sheriff to be in certain public places around children. “I think there’s this misimpression that we want to ban sex offenders from going anywhere and doing anything,” Pierson said. “What we’re attempting to do is deal with the unusual situations where they’re predatory. If they go to an ice skating rink because they want to look at the young children, that’s who we’re trying to prevent from being in that kind of situation.”
Monday, April 14, 2014
Two notable circuit discussions of federal consequences of child porn production
I have just come across two notable circuit opinion dealing with the criminal and civil consequences child porn production. One was handed down late last week by the Fourth Circuit, US v. Cobler, No. 13-4170 (4th Cir. April 11, 2014) (available here), and it begins this way:
In this appeal, we consider the constitutionality and the reasonableness of a 120-year sentence imposed on a defendant convicted of production, possession, and transportation of child pornography, in connection with his sexual molestation of a four-year-old boy. The defendant argues that his lengthy prison sentence is disproportionate to his crimes, constituting cruel and unusual punishment under the Eighth Amendment, and that the sentence is greater than necessary to achieve legitimate sentencing goals. Upon our review, we reject the defendant’s constitutional challenge and conclude that the district court did not abuse its discretion in imposing a sentence designed to protect the public and to address the seriousness of the defendant’s crimes. Accordingly, we affirm.
The other opinion was handed down this morning by the Sixth Circuit, Prewett v. Weems, No. 12-6489 (6th Cir. April 14, 2014) (available here), and it begins this way:
Stanley Weems pleaded guilty to one count of producing child pornography. See 18 U.S.C. § 2251(a). His victim, J.W., filed this civil action against Weems to obtain compensation for the abuse. See id. § 2255(a). The district court awarded $1 million, a figure reached by multiplying the presumed-damages floor in the civil-remedies statute ($150,000) by the number of videos Weems produced (seven) and by capping the damages at the relief sought in J.W.’s complaint ($1 million). This accounting raises an interesting question: Does the civil-remedies statute set a presumptive floor of $150,000 for each criminal violation or a presumptive floor of $150,000 for each cause of action without regard to the number of alleged violations? As we see it, the text, structure and context of the statute, together with the structure of related civil-remedy laws, establish that the $150,000 figure creates a damages floor for a victim’s cause of action, not for each violation. We therefore reverse the district court’s contrary conclusion.
Would embrace of "judicial corporal punishment" help remedy mass incarceration?
The question in the title of this post is prompted by this provocative new commentary by John Dewar Gleissner and given the headline "Who is biased against prison and sentencing reform?". Here are excerpts:
Private prison companies and the guards’ labor unions are biased, of course. Politicians do not wish to appear soft on crime. Some communities need the jobs prisons provide. The public is biased about crime generally, and believes crime rates are going up when they are actually declining. Many want prison to be horrible. Who can blame crime victims? Taxpayers dislike money going to prisons. Law-abiding people do not have much in common with prisoners. Businesses don’t sell much to prisoners. Prison industries lose money and cannot succeed with government control.
The media prefer sensational stories about egregious criminal behavior. Once the offender is sentenced, the story usually ends. Prisoners do not have access to the internet.
Incarceration is hidden from the eyes of the people, harmful to the morals of prisoners and expensive. Cultural, generational and religious bias prevent us from crediting our ancestors or other countries with effective crime-control techniques....
Attacking the supply of illegal drugs did not work. The costs of fully supporting 2.3 million inactive welfare recipients, America’s prisoners, finally caught our attention. The Constitution is the standard in conditions of confinement litigation. But when the Constitution was adopted, massive incarceration as we now know it did not exist. Back then, judicial corporal punishment was constitutional; it was approved of or used by all the presidents carved into Mt. Rushmore.
Incarceration is all Western civilization has known for several generations. As the death penalty declines, most of us think of prison as the nearly exclusive serious punishment method. Criminal justice systems focus on the single, inflexible, expensive and inexorable dimension of time. Most Americans are shocked by the idea of judicial corporal punishment, which is invariably depicted as cruel, perverted or unjust in movies and TV.
Science proves that rehabilitation, restitution and deterrence are not often achieved by lengthy incarceration. But some violent offenders deserve their long prison sentences. Prisons will not be abolished. Real bad folks need to stay behind bars.
We think society moves forward. Reformers are supposed to be “forward-looking.” Belief in continual social progress ignores history. Society periodically degenerates into barbarism, disorganization, bankruptcy, genocide, war and revolution. Scientific study of changed values sometimes takes decades before conclusions are reached and legislation enacted. Our belief in social progress is accompanied by rejection of biblical principles in favor of unproven secular values.
We do not often enough look in the Bible for answers. If we did, the relatively simple solution to ending massive incarceration would be obvious: Deuteronomy 25:1-3. We could cut the American prison population in half. Modern behavioral and neurological science can and would confirm the superior effectiveness of traditional judicial corporal punishment. Believe it or not, judicial corporal punishment was largely abolished in the U.S. because it was too effective.
Judicial corporal punishment is in public, less expensive, much faster and repeatable. Its last use in the United States was to punish wife-beating without diminishing family income. In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz wrote, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”
Sunday, April 13, 2014
Another notable (and astute?) local shaming sentence for elderly bully
As reported in this AP piece, "Ohio Judge Sentences Man To Wear 'I AM A BULLY' Sign," another notable sentence involving shaming has made national news this weekend. Here are the details:
A man accused of harassing a neighbor and her disabled children for the past 15 years sat at a street corner Sunday morning with a sign declaring he's a bully, a requirement of his sentence.
Municipal Court Judge Gayle Williams-Byers ordered 62-year-old Edmond Aviv to display the sign for five hours Sunday. It says: "I AM A BULLY! I pick on children that are disabled, and I am intolerant of those that are different from myself. My actions do not reflect an appreciation for the diverse South Euclid community that I live in."...
Aviv arrived at the corner just before 9 a.m., placing the hand-lettered cardboard sign next to him as he sat in a chair. Within a couple of minutes, a passing motorist honked a car horn. Court records show Aviv pleaded no contest in February to a misdemeanor disorderly conduct charge. His attorney didn't return a telephone call for comment.
Aviv has feuded with his neighbor Sandra Prugh for the past 15 years, court records show. The most recent case stemmed from Aviv being annoyed at the smell coming from Prugh's dryer vent when she did laundry, according to court records. In retaliation, Aviv hooked up kerosene to a fan, which blew the smell onto Pugh's property, the records said.
Prugh has two adult adopted children with developmental disabilities, cerebral palsy and epilepsy; a husband with dementia, and a paralyzed son. Prugh said in a letter to the court that Aviv had called her an ethnic slur while she was holding her adopted black children, spit on her several times, regularly threw dog feces on her son's car windshield, and once smeared feces on a wheelchair ramp. "I am very concerned for the safety of our family," Prugh wrote in a letter to the court for Aviv's sentencing. She said she just wants to live in peace.
The judge also ordered Aviv to serve 15 days in jail and to undergo anger management classes and counseling. He also had to submit an apology letter to Prugh. "I want to express my sincere apology for acting irrationally towards your house and the safety of your children," Aviv wrote. "I understand my actions could have caused harm but at that time I was not really thinking about it."
Regular readers know that I tend to be a supporter of shaming sentences as an alternative to prison terms in appropriate cases. And this case seem like just the kind of matter in which a little public shaming, as opposed to an extended jail term, seems to have a reasonable chance of being an effective deterrent and a less cost to Ohio taxpayers.
Tuesday, April 01, 2014
"Sex offender housing restrictions do more harm than good"
The title of this post is the headline of this notable Concord Monitor editorial. Here are excerpts:
Of all the constituents that politicians want to help out, sex offenders probably rank at the very bottom of the list. But the New Hampshire Senate should summon the courage to do just that. By helping sex offenders, as strange as it sounds, the Senate will end up making life safer for everyone else.
At issue is legislation that would ban cities and towns from placing broad restrictions on where sex offenders may live. Several communities have attempted such restrictions, and lower-court judges have already struck down two as unconstitutional: one in Franklin and one in Dover. In both cities, local officials wanted to keep convicted sex offenders from living too close to places where children regularly gather: schools, day care centers and playgrounds. Several other communities still have such ordinances on the books, among them Tilton, Sanbornton, Northfield and Boscawen.
The impulse to keep sex offenders away from kids via zoning is completely understandable. But there is strong reason to resist. And there is strong reason to set such policy at the state level, rather than leaving it to individual communities.
A growing body of evidence — gathered not just by civil liberties lawyers, but from law enforcement officers, public officials and child advocacy groups — suggests that residency restrictions are placebo pills at best and counterproductive at worst. Such ordinances give communities a false sense of security while driving sex offenders underground or into rural areas where they can’t access the services that give them the best chance at rehabilitation....
An Iowa study, for instance, showed that sexual-abuse convictions had remained steady since statewide residency restrictions went into effect five years earlier but that the number of sex offenders failing to register their addresses with local police departments, as the law required, had more than doubled.And a study in the journal Federal Probation draws a clear link between housing instability — an obvious consequence of residency ordinances — and criminal recidivism. Instead, it suggests a strategy of identifying and carefully monitoring the highest risk offenders and creating stable lives for the rest through treatment and access to housing, jobs and services.
When a sex offender has served his sentence, it is in everyone’s interest that he succeed on the outside. Passing this bill would help.
Monday, March 31, 2014
Controversy long after du Pont heir got probation as punishment for raping his small daughter
As detailed in this lengthy local article from Delaware, headlined "Heir's sentence raises questions in child rape case," a high-profile child rape case from years ago is now generating new controversy because the low sentence imposed on the rapist just became public. Here are the details:
A judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he "will not fare well" in prison and needed treatment instead of time behind bars, court records show.
Superior Court Judge Jan Jurden's sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape. Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.
Richards' 2009 rape case became public this month after attorneys for his ex-wife, Tracy, filed a lawsuit seeking compensatory and punitive damages for the abuse of his daughter. The fact that Jurden expressed concern that prison wasn't right for Richards came as a surprise to defense lawyers and prosecutors who consider her a tough sentencing judge. Several noted that prison officials can put inmates in protective custody if they are worried about their safety, noting that child abusers are sometimes targeted by other inmates.
"It's an extremely rare circumstance that prison serves the inmate well," said Delaware Public Defender Brendan J. O'Neill, whose office represents defendants who cannot afford a lawyer. "Prison is to punish, to segregate the offender from society, and the notion that prison serves people well hasn't proven to be true in most circumstances." O'Neill said he and his deputies have often argued that a defendant was too ill or frail for prison, but he has never seen a judge cite it as a "reason not to send someone to jail."...
O'Neill said the way the Richards case was handled might cause the public to be skeptical about "how a person with great wealth may be treated by the system." Richards, who is unemployed and supported by a trust fund, owns a 5,800-square-foot mansion in Greenville, Del., he bought for $1.8 million in 2005. He also lists a home in the exclusive North Shores neighborhood near Rehoboth Beach, according to the state's sex abuse registry. His great-grandfather is du Pont family patriarch Irenee du Pont, and his father is Robert H. Richards III, a retired partner in the Richards Layton & Finger law firm....
The lawsuit filed by Richards' ex-wife accuses him of admitting to sexually abusing his infant son between 2005 and 2007, the same period when he abused his daughter starting when she was 3. Police said they investigated allegations involving the boy in 2010 after his mother filed a complaint, but said they did not have sufficient evidence to justify charges. Investigators will take another look at the allegations included in the lawsuit, which are based on reports by probation officers.
State Attorney General Beau Biden's office had initially indicted Richards on two counts of second-degree rape of a child -- Class B violent felonies that carry a mandatory 10-year prison term for each count. According to the arrest warrant filed by a New Castle County Police Detective JoAnna Burton in December 2007, the girl, then 5, told her grandmother, Donna Burg, that Richards sexually abused her.
Burg said the child reported that her father told her it was "our little secret" but said she didn't want "my daddy touching me anymore." Tracy Richards, who confronted her then-husband, told police he admitted abusing his daughter but said "it was an accident and he would never do it again," the warrant said.
Richards was free on $60,000 secured bail while awaiting trial on the charges that could have put him behind bars for years. But in June 2008, just days before a scheduled trial, prosecutor Renee Hrivnak offered Richards a plea to a single count of fourth-degree rape, which carries no mandatory time, and he accepted, admitting in court that he abused his child.
"It was more than reasonable, an enlightened plea offer," Richards attorney Eugene J. Maurer Jr. said. Fourth-degree rape is a Class C violent felony that by law can bring up to 15 years in prison, though guidelines suggest zero to 2 1/2 years in prison.
At Richards' February 2009 sentencing, Hrivnak recommended probation, Biden's chief deputy Ian R. McConnel said, adding that in retrospect he wished she would have sought prison time. Hrivnak would not comment.... McConnel would not discuss the rationale behind the Richards' plea deal and Hrivnak's recommendation of probation for the fourth-degree rape conviction.
While judges have the latitude to sentence defendants within legal parameters, they are urged to follow more lenient guidelines established by the Delaware Sentencing Accountability Commission, a panel of judges and other top officials in the criminal justice system. The panel has a policy that prison should be reserved for violent offenders, including rapists.
Jurden gave Richards, who had no previous criminal record, an eight-year prison term, but suspended all the prison time for probation. "Defendant will not fare well in Level 5 setting," said the final line of her sentencing order. In Delaware's correctional system, Level 5 is prison....
Defense lawyer Joseph A. Hurley said it makes sense to him that the judge would be concerned about Richards' time in prison. "Sure, they have protective custody, but that is solitary confinement for 23 hours a day. We're not a third-world society," Hurley said. "Sex offenders are the lowest of the low in prison," Hurley said. "He's a rich, white boy who is a wuss and a child perv. The prison can't protect them, and Jan Jurden knows that reality. She is right on."
Though lots of reactions to this story are possible, I cannot help but highlight that a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated. But I am inclined to encourage everyone to appreciate how this story reveals yet again how prosecutorial charging, bargaining and sentencing decisions are never subject to transparency or formal review, while judicial sentencing decisions have to be made in open court, on the record, and can in some cases be appealed.
Tuesday, March 25, 2014
Illinois commission advocates against putting all juve sex offenders on registry
As explained in this AP article, headlined "Commission: Remove Juveniles From Sex Offender Registries," a new public policy report urges Illinois officials to no longer require juvenile sex offenders to register. Here are the basics:
Requiring juveniles to register as sex offenders impairs rehabilitation efforts for a crime that very few of them ever commit again, according to a study released Tuesday. The Illinois Juvenile Justice Commission’s report recommends ending the practice of making offenders younger than 17 add their names to sex-offender registries, which can negatively affect an offender for years. Every juvenile convicted of a sex crime must register, and 70 percent of the 2,553 currently registered must do so for life, the report said.
The 150-page review of laws and treatment practices regarding juvenile sex crimes calls for the state to abolish the categorical requirement for young offenders’ registration. The report [available here], which the General Assembly requested in 2012, says sex crimes committed in youth are seldom repeated in adulthood and that individualized, community-based treatment plans are highly effective and more productive than incarceration.
“Automatic, categorical registries do not protect public safety,” commission chairman George Timberlake, a retired chief circuit judge from Mount Vernon, told The Associated Press. “There’s no evidentiary basis that says they do and more importantly, they have very negative consequences in the effects they have on the offenders’ life, and perhaps the victim’s life.”
Timberlake said the victim, often a family member, loses confidentiality through offender registration and can also suffer from not being able to resume a familial relationship with an offender who is required to register. He added that a registry might be appropriate based on risk. Many states offer courts flexibility.
The report recommends developing statewide standards and training for courts and law enforcement professionals for intervening with young sex offenders and victims. It also calls for a consistent assessment tool for evaluating risks an individual juvenile poses. Also, the report says, offenders whenever possible should be kept in treatment programs in their homes that involve parents as opposed to locking them up.
March 25, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Monday, March 24, 2014
AG Eric Holder announces new rules for federal halfway houses
Via this official press release, I see that Attorney General Eric Holder is continuing his effort to reshape the policies and practices of the federal criminal justice system, this time through new policies and programming for federal halfway houses. The title and subtitle of the press release itself provides a summary of this latest development: "In New Step to Fight Recidivism, Attorney General Holder Announces Justice Department to Require Federal Halfway Houses to Boost Treatment Services for Inmates Prior to Release; New Rules Also Instruct Federal Halfway Houses to Provide Transportation Assistance, Cell Phone Access in Order to Help Inmates Seek Employment Opportunities."
Here is more from the start of the press release:
In a new step to further the Justice Department’s efforts towards enhancing reentry among formerly incarcerated individuals, Attorney General Eric Holder announced Monday that the Bureau of Prisons (BOP) will impose new requirements on federal halfway houses that help inmates transition back into society. Under the proposed new requirements, these halfway houses will have to provide a specialized form of treatment to prisoners, including those with mental health and substance abuse issues. For the first time, halfway houses will also have to provide greater assistance to inmates who are pursuing job opportunities, such as permitting cell phones to be used by inmates and providing funds for transportation. The new requirements also expand access to electronic monitoring equipment, such as GPS-equipped ankle bracelets, to allow more inmates to utilize home confinement as a reentry method.
Holder announced the changes in a video message posted on the Department’s website. The BOP’s new policies have the potential to be far-reaching. To ease their transition, those exiting prison typically spend the last few months of their sentence in either a federal halfway house — known as a residential reentry center (RRC) — or under home confinement, or a combination of the two. These community-based programs provide much needed assistance to returning citizens in finding employment and housing, facilitating connections with service providers, reestablishing ties to family and friends, and more.
Last year alone, more than 30,000 federal inmates passed through a halfway house. Among the most significant changes Holder announced is the requirement for standardized Cognitive Behavioral Programming (CBP) to be offered at all federal halfway houses. This treatment will address behavior that places formerly incarcerated individuals at higher risk of recidivism. As part of this treatment requirement, BOP is setting guidelines for instructor qualifications, class size and length, and training for all staff at the halfway houses.
Several other modifications are being made to the standard contracts that apply to federal halfway houses in order to provide greater support to returning citizens. Examples include requiring halfway houses to provide public transportation vouchers or transportation assistance to help residents secure employment, requiring all federal halfway houses to allow residents to have cell phones to facilitate communication with potential employers and family, and improving and expanding home confinement by increasing the use of GPS monitoring.
Wednesday, March 19, 2014
Should sex offenders be prohibited from winning lottery jackpots?
The question in the title of this post is prompted by this new FoxNews report headlined "Massachusetts official seeks to prevent sex offenders from collecting large lotto payouts." Here are excerpts:
A Massachusetts state senator is pushing to close a lottery loophole that allows sex offenders to pocket huge payouts and potentially use their winnings to buy their victims' silence.
"Should someone on the sex offender list purchase a ticket and win, I think we should find a way from preventing them from enjoying the proceeds," state Sen. Richard Moore told The Boston Herald. "This doesn't smell right to start with."
Moore's concern came as it was revealed that a Level 3 serial child predator walked away with a $10 million win in 2008 and used his winnings to buy gifts for a boy he was allegedly abusing. Daniel T. Snay, 62, was convicted four separate times of indecent assault and battery on a person 14 years or older from 1974 to 1987. He pleaded not guilty Monday at his arraignment on charges including indecent assault and battery on a child under the age of 14 and other charges....
"I guess he bought my silence by giving me gifts and stuff," the boy, now 16, told police, according to a transcript released in court, the paper reported. The alleged abuse occurred about the same time he won the lottery and it continued until March 1, 2012, the report said.
Police Chief Jeffrey Lourie said Snay's "windfall aided the commission of the crimes" by helping him gain favor with people. Sam Goldberg, Snay's attorney, told the paper the allegations are "very easy to bring ... especially when you know this is someone who’s already been a lightning rod ... because of the lottery winnings."
The director of the state's lottery told the paper that winnings can be intercepted by the IRS or Department of Revenue, but a payout cannot be withheld “based on someone’s character."
Saturday, March 01, 2014
Notable new federal front in drug war being tried in South Carolina
I was intrigued to see this lengthy article at the Huffington Post headlined "Federal Prosecutor Tries A Radical Tactic In The Drug War: Not Throwing People In Prison." The piece merits a read in full, and here is a taste:
Conway is a small city, with a population of about 16,000. Many residents work in tourism-related jobs in nearby Myrtle Beach. The drugs and gangs have made them feel unsafe at home. Dianne Davis, 56, said she tries "not to let the dark catch me" and described other Conway residents as barricading their doors with two-by-fours. "I want to be able to stand on my porch," Davis said. "I have a beautiful garden."
"There are a lot of gangsters running around in that area," Jimmy Richardson said of the neighborhood where Huckabee Heights is located. Richardson is the chief state prosecutor for Horry County, which includes Conway, and a resident of the city himself.
To South Carolina's top federal prosecutor, however, the troubles in Conway present an opportunity. U.S. Attorney Bill Nettles is testing out a novel approach to dealing with drug-related crime, one that aims to clean up the streets by looking beyond mass arrests and incarceration. Conway is the third city in South Carolina to implement a version of the plan, and federal prosecutors in other states and the Justice Department are watching closely. If the program's success continues in South Carolina, it could become a model for law enforcement across the country.
"What I want to do is to make the people's lives who are law-abiding citizens in this community better," Nettles said on the two-and-a-half-hour drive to Conway from his office in Columbia last month. "Incarceration is no longer the goal, but is one of many tools available to allow you to effect your goal of improving their lives. It represents a fundamental shift, a seismic shift in terms of how you're viewing what you're doing."
"When you declare a 'war on drugs,' the community sees the cops as the occupiers, and the cops see the people in the community as enemy combatants," Nettles said. "Well, that's not the way it's supposed to be."
Nettles' plan is surprisingly straightforward. First, federal and local prosecutors identify local drug dealers with the help of the police, probation officers and community members. Next, they build criminal cases against them by reviewing records for outstanding warrants and conducting undercover drug buys. In most cases, arresting all the dealers would be the next order of business, but Nettles has a different idea.
While high-level dealers are still arrested and prosecuted, some low-level offenders are given another option. For them, Nettles stages something of an intervention. Together with the police, family members, religious leaders and other members of the community, prosecutors present the dealers with the evidence against them and give them a choice: Face the prospect of prison or participate in the pilot project.
The program, officially known as the Drug Market Intervention Initiative, helps the dealers find legitimate jobs and offers them help with drug treatment, education and transportation. The hope is that it provides them with the support and the motivation they need to turn their lives around.
The ones who are chosen know that not everybody gets this chance. The initiative in each city does not have endless resources. So only certain low-level offenders, those with limited criminal histories and no violent crimes in their past, are given the opportunity to avoid prison.
For a period of time, typically more than a year, they are monitored to make sure they remain law-abiding citizens. If they do, they will remain free of the criminal justice system. Until they complete the program, however, the threat of arrest based on the evidence already collected continues to hang over their heads. If officials receive complaints about anyone involved in the program, a judge can sign off on an already prepared arrest warrant....
"These people are being regularly drug tested, they are in a stringent program, and if they fail out or don't show up or quit doing their stuff for work, I'm going to arrest them," Nettles explained. "That is what some people call a motivated employee." Part of their motivation also comes from the fact that a steady paycheck can actually be more lucrative than the drug business. Contrary to the popular image of drug lords rolling in cash, many street-level dealers are barely getting by.
Thursday, February 20, 2014
A shameful suggestion for how to NYC roads and walkways safer
I was asked yesterday to contribute my thoughts to the Room for Debate section of the New York Times to address the question of "what steps can [New York City] officials, pedestrians and drivers take to reduce the number of accidents?". My suggestion in available at this link, and here is a segment:
Perhaps Mayor de Blasio might try to impose salient shaming sanctions rather than other traditional punishments.
What if, after a reckless driver has caused a crash in Midtown, the offender were required to create a video reciting recent accident data, which would be posted on YouTube and regularly shown on screens in Times Square? What if, after a cyclist is caught dangerously weaving through traffic in Brooklyn, that scofflaw had to make a live apology during halftime of a Nets game? What if all drivers convicted of speeding were required to place bumper stickers on their cars highlighting that the owner does not follow traffic rules? ...
Because we have rarely tried to make traffic offenders “pay” for their crimes through prominent use of shaming, I cannot confidently predict it would be more effective. But given the challenges in trying to capture the attention and obedience of busy New York City drivers, it is worthwhile to consider creative alternative punishment schemes.
Saturday, February 15, 2014
"Healthcare Not Handcuffs": Will ACA help end the drug war?
The title and question of this post is my take on this notable recent report from the ACLU and the Drug Policy Alliance titled "Healthcare Not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform." Here is an excerpt from the report's introduction:
The Affordable Care Act (ACA) is the most significant expansion of healthcare coverage in generations, and there is almost no area of the U.S. healthcare system that is not impacted by the reform in some way. Even as debate about the ACA continues, it is now the law of the land, and implementation is fully under way. For criminal justice reform and drug policy reform advocates, the ACA represents a remarkable opportunity to advance efforts to end both mass incarceration and the criminalization-based approach to drug policy often known as the War on Drugs.
Under the ACA, tens of millions of people in the United States will gain healthcare coverage for a broad array of health services and conditions, including, for the first time, substance use and mental health disorders. Of course, there are also problems with the ACA and its implementation, not the least of which is that millions of people will remain uninsured even after the law is fully operational. Yet even with these challenges, the ACA sets the stage for a new health-oriented policy framework to address substance use and mental health disorders -- health problems that have been largely relegated to the criminal justice system for more than 40 years.
This is an enormous paradigm shift that has yet to fully register with criminal justice and drug policy reform advocates, let alone with health policy advocates and the general public. The financial benefits of providing substance use disorder treatment instead of incarceration are well established. But by fully incorporating substance use and mental health disorders into healthcare -- by truly treating them as health issues and requiring public and private insurance plans to cover their treatment -- the ACA creates an opening and financial incentives to shift drug policy into a public health framework, undermining the rationale for a criminal justice approach....
The passage and implementation of the ACA coincides with the growing momentum across the political spectrum to end the War on Drugs, reverse the incarceration boom, and abandon criminal justice policies that have resulted in the criminalization of whole communities. But the paradigmatic shift from criminalization to health will not occur unless criminal justice and drug policy reform advocates seize the moment and leverage the ACA to realize its full transformative potential.
To assist advocates in navigating this new terrain, this paper outlines some of the major provisions of the ACA immediately relevant to criminal justice and drug policy reform (Part One), and then explores specific applications of those provisions, including program and policy examples and suggested action steps (Part Two)....
This is a unique, perhaps even once-in-a-lifetime scenario for criminal justice and drug policy reform advocates: with the ACA, we can start to build true alternatives to the criminal justice response to substance use, the enforcement of which has fundamentally undermined community health and safety. Addressing substance use as a health condition has the potential to lower health costs, dramatically reduce the number of people involved in the criminal justice system, and improve health outcomes and overall wellbeing for millions of people.
Monday, February 10, 2014
Registered sex offender makes case against sex offender registry
Guy Hamilton-Smith, a registered sex offender and law school graduate who has so-far been denied the opportunity to become a member of the bar, has this new op-ed in the Lexington Herald-Leader under the headline "Sex-offender registry misguided thinking." Here are excerpts:
I am a sex offender. I know well the tremendous power of those words. In 2007, I pled guilty to possession of child pornography.
Nothing here is meant to defend what I did or to minimize the gravity of my actions. I had a major problem with pornography, and I was far too deep in denial and too scared to reach out to anyone. Help eventually came when my girlfriend discovered child porn on my computer and went to the police. I was then and remain grateful to her for taking that step.
As I went through the legal process after my arrest, I developed a keen interest in the law, and a sincere desire to advocate on the behalf of those who are hated, who are lost, and who are forgotten. With luck, I managed to win acceptance to law school despite my conviction. I worked harder than I'd ever worked in my life, because I knew I'd have a lot to do to overcome my past. I did well in school, graduated, secured a job at a law firm after disclosing my past, and applied to take the bar exam. Recently, the Kentucky Supreme Court ruled that I will not be allowed to take the bar exam until I am no longer on the sex-offender registry, which will be another 18 years from now.
But the point I want to make is not about me. It isn't about my case. I am not here to say whether the court's decision was right or wrong. The principles at play are much larger than me.
Strange as it may sound coming from a felon and a sex offender, I believe in the necessity of punishment. How else, after all, are people supposed to make amends for the harm that they cause? ... I believe in many ways that my life was saved by virtue of my arrest. I am sensitive to the fact that my crime, and the crimes of others on the sex offender registry, are serious. I do not mean to denigrate the plight of victims, as I was also a victim at one point in my own childhood.
My point, rather, is simply this: punishment that becomes unmoored from considerations of proportionality, redemption and reintegration becomes poison, and we — society, victims and perpetrators — become diminished by it.
Nowhere is this more evident than the sex-offender registry. Those who find themselves constituents of the registry are routinely and uniformly denied the same second chance afforded to so many other criminal defendants after they have served their sentences.
The impetus behind the registry is the popular belief that sex offenders always commit new sex crimes. That view, however, is at odds with data from the Department of Justice and others....
I know that I am not a sympathetic figure by virtue of my crime. I know that I can never change the past or undo the things that I have done. My hope here is that we can have a discussion in this country that is long overdue — namely, what it is that we hope to achieve from our system of criminal justice.
February 10, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack
Thursday, February 06, 2014
"Profiting from Probation: America's 'Offender-Funded' Probation Industry"
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:
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- "Rethinking Restitution in Cases of Child Pornography Possession"
- "The Case for Full Restitution for Child Pornography Victims"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
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.
Tuesday, January 07, 2014
"Should We Let Prisoners Upgrade Their Prison Cells?"
The 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
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.