Sentencing Law and Policy

Fourth Circuit rejects argument that Southern Union limits judicial fact-finding for restitution awards

Immediately following the Supreme Court's opinion in Southern Union (basics here and here) this past June that the Apprendi doctrine applies to the imposition of criminal fines, I asked in the title to this post "Doesn't Southern Union suggest the Sixth Amendment limits judicial factfinding for restitution punishments?".  I also went on to explain why my answer to that question was "yes."

Today, at the end of a long opinion dealing with a lot of issues in US v. Day, No. 11-5218 (4th Cir. Nov. 29, 2012) (available here), a Fourth Circuit panel considers and rejects a claim that the Sixth Amendment limits judicial fact-finding in support of a criminal restitution punishment. Here is the heart of the panel's discussion:

Prior to Southern Union, every circuit to consider whether Apprendi applies to restitution held that it did not.  See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir. 2006) ("[L]ike all of the other circuits to consider this question, we conclude that [Apprendi does] not bar judges from finding the facts necessary to impose a restitution order."). Day argues that we should break ranks with these prior deci- sions in light of Southern Union and apply Apprendi to restitution because it is "similar" to a criminal fine.

We decline to take Day’s suggested course.  As an initial matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it.  Instead, far from demanding a change in tack, the logic of Southern Union actually reinforces the correctness of the uniform rule adopted in the federal courts to date.  That is, Southern Union makes clear that Apprendi requires a jury determination regarding any fact that "increases the penalty for a crime beyond the prescribed statutory maximum." 132 S. Ct. at 2350 (quoting Apprendi, 530 U.S. at 490).  Thus, in Southern Union itself, the Apprendi issue was triggered by the fact that the district court imposed a fine in excess of the statutory maximum that applied in that case.  Id. at 2349.

Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense.  See 18 U.S.C. §§ 3663(b), 3663A(b).  As a consequence, the rule of Apprendi is simply not implicated to begin with by a trial court’s entry of restitution.  As the Sixth Circuit aptly explained in United States v. Sosebee, "restitution is not subject to [Apprendi] because the statutes authorizing restitution, unlike ordinary penalty statutes, do not provide a determinate statutory maximum." 419 F.3d 451, 454 (6th Cir.), cert. denied, 546 U.S. 1082 (2005). That logic was sound when written before Southern Union, and it remains so today.

Even before Southern Union, I never found compelling the "logic" used here to distinguish restitution fact-finding by judges from other forms of penalty fact-finding limited by the Sixth Amendment.  But ever since Apprendi, I am never surprised by the arguments lower courts are eager to create in order to affirm sentences enhanced by judicial fact-finding.  In other words, this ruling hardly represents a new Day in Apprendi-land.

Latest BJS data report 2011 decline in US prison and overall correction populations

According the latest, greatest official numbers from the Bureau of Justice Statistics, the total population subject to criminal justice control in the US declined (again) in 2011. This press release from BJS sets out the basics:

About 6.98 million people were under some form of adult correctional supervision in the U.S. at yearend 2011, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. This was the equivalent of about one in 34 U.S. adults (or about 2.9 percent of the adult population) in prison or jail or on probation or parole, the lowest rate of adults under correctional supervision observed since 2000.

The adult correctional population declined by 1.4 percent or 98,900 offenders during 2011. This was the third consecutive year of decline in the number of offenders under the supervision of adult correctional authorities....

At yearend 2011, about 4,814,200 offenders were supervised in the community on probation or parole, and 2,239,800 were incarcerated in state or federal prisons or local jails. About one in 50 adults was under community supervision while about one in 107 adults was in prison or jail.

While both the community supervision population (down 1.5 percent) and the incarcerated population (down 1.3 percent) decreased during 2011, the majority of the decline (83 percent) in the total number of adults under correctional supervision during the year was due to a drop in the probation population. The probation population declined two percent or by 81,800 offenders during 2011, falling below four million for the first time since 2002.

For the third consecutive year, the number of offenders discharged from probation supervision (about 2.2 million offenders) exceeded the number who entered probation (about 2.1 million) during 2011, contributing to the decrease in the probation population....

An increase in the parole population partially offset declines in all other components of the adult correctional population. The parole population increased 1.6 percent or by 13,300 offenders during 2011. The state parole population increased 1.1 percent and the federal parole population grew 5.1 percent during the year....

The failure rate of parolees (defined as the percentage of parolees who were returned to jail or prison out of all parolees who could have been incarcerated at any point during the year) decreased for the fifth consecutive year. During 2011, about 12 percent of parolees at risk of reincarceration were incarcerated at some time during the year, down from about 15 percent during 2006.

All these data and so much more can be found in these two official new reports from BJS: Correctional Populations in the United States, 2011; and Probation and Parole in the United States, 2011

Sign of misguided sentencing times in today's New York Times piece on church sentencing

Nationwide, there are literally thousands of sentencing stories about thousands of defendants subject to problematic sentencing terms that never get consider part of "all the news that's fit to print" by the New York Times.  But when one judge in Oklahoma incorporates church into his sentencing script, the New York Times provides coverage via this lengthy article headlined "Constitution Experts Denounce Oklahoma Judge’s Sentencing of Youth to Church."  Here are excerpts:

Initially there was little outcry in Muskogee, Okla., last week when a judge, as a condition of a youth’s probation for a driving-related manslaughter conviction, sentenced him to attend church regularly for 10 years. Judge Mike Norman, in his Muskogee courtroom, seemed surprised by the scrutiny. “I sentenced him to go to church for 10 years because I thought I could do that,” he said.

The judge, Mike Norman, 67, had sentenced people to church before, though never for such a serious crime. But as word of the ruling spread in state and national legal circles, constitutional experts condemned it as a flagrant violation of the separation of church and state.

This week, the American Civil Liberties Union said it would file a complaint against Judge Norman with the Oklahoma Council on Judicial Complaints, an agency that investigates judicial misconduct, seeking an official reprimand or other sanctions. “We see a judge who has shown disregard for the First Amendment of the Constitution in his rulings,” said Ryan Kiesel, executive director of the civil liberties union branch in Oklahoma.

The 17-year-old defendant, Tyler Alred, was prosecuted as a youthful offender, giving the judge more discretion than in an adult case. Mr. Alred pleaded guilty to manslaughter for an accident last year, when he ran his car into a tree and a 16-year-old passenger was killed.

Although his alcohol level tested below the legal limit, because he was under age he was legally considered to be under the influence of alcohol. Mr. Alred told the court that he was happy to agree to church attendance and other mandates — including that he finish high school and train as a welder, and shun alcohol, drugs and tobacco for a year. By doing so, he is avoiding a 10-year prison sentence and has a chance to make a fresh start.

But his acquiescence does not change the law, Mr. Kiesel and others pointed out. “Alternative sentencing is something that should be encouraged, but there are many options that don’t violate the Constitution,” Mr. Kiesel said.  “A choice of going to prison or to church — that is precisely the type of coercion that the First Amendment seeks to prevent.”...

The judge said he was surprised at the criticism. “I feel like church is important,” he said. “I sentenced him to go to church for 10 years because I thought I could do that.” He added, “I am satisfied that both the families in this case think we’ve made the right decision,” and noted that the dead boy’s father had tearfully hugged Mr. Alred in the courtroom. If Mr. Alred stops attending church or violates any other terms of his probation, Judge Norman said, he will send him to prison....

Randall T. Coyne, a professor of criminal law at the University of Oklahoma, agreed that the judge’s church requirement was unconstitutional. But unless the defendant fights the ruling, he said, civil liberties advocates have no way to challenge it in court, leaving the complaint to the judicial review agency as their only option.

Over the years, several judges around the country have mandated church attendance as part of sentences, sometimes stirring criticism. In the early 1990s in Louisiana, Judge Thomas P. Quirk ordered hundreds of defendants in traffic and misdemeanor cases to attend church once a week for a year. The judge said that he had imposed the condition only on people who agreed to it, and that it provided a good alternative to sending defendants to overcrowded jails or imposing fines they could not afford.

The Judiciary Commission of Louisiana found that Judge Quirk had engaged in knowing violations of the Constitution and recommended that he be suspended without pay for 12 months. But the Louisiana Supreme Court ruled in 1995 that while the judge might have erred, he did not engage in “judicial misconduct,” and it rescinded the sanctions.

In 2011, the city of Bay Minette, Ala., required first-time misdemeanor offenders to choose between doing jail time and attending church weekly for a year. The city dropped the program after the American Civil Liberties Union called it unconstitutional.

I understand fully thr First Amendment concernins with a criminal sentence that requires religious activity.  Nevertheless, I still find it so very sad and telling that Judge Mike Norman here could have readily opted to sentence 17-year-old defendant Tyler Alred to prison for a full decade and this case never would have received a moments notice from anyone other than the local community. But because the judge here sought to encourage the juvenile defendant's spiritual development rather than completely deprive his liberty for a decade, this story makes national news and gets the ACLU up in arms.

I suppose I have to just continue hoping for a time when we as a society are as troubled by state-mandated deprivations of liberty as we are state-encouraged spiritual development. Until then, I have to remain less than entirely thankful about what gets folks most concerned in incarceration nation.

"Oklahoma Judge Sentences Teen to Church for 10 Years"

The title of this post is the headline of this local sentencing story which reveals that the separation of church and state apparently does not apply to some sentencings.  Here are the (inspired? revealed? prophetic? spiritual?) details:

Anybody who knows Oklahoma District Court Judge Mike Norman probably yawned at the news that he’d sentenced a teen offender to attend church as part of his probation arrangement, and that the judge’s pastor was in the courtroom at the time. Not only had he handed down such a sentence before, but he’d required one man to bring the church program back with him when he reported to court.

“The Lord works in many ways,” Norman, 69, told ABC News today. “I’ve done a little bit of this kind of thing before, but never on such a serious charge.”

Norman sentenced Tyler Alred, 17, Tuesday after he pleaded guilty to first-degree manslaughter in August for killing friend and passenger John Luke Dum in a car crash. Dum died on impact in December after Alred crashed his Chevrolet pickup truck, ejecting Dum. Alred was 16 at the time of the crash and had been drinking prior to the deadly accident. Oklahoma Highway Patrol issued a Breathalyzer at the time, and although Alred was under the state’s legal alcohol limit, he had been drinking underage.

The judge could have sent Alred to jail but, instead, taking into account his clean criminal and school records, sentenced him to wear a drug and alcohol bracelet, participate in counseling groups and attend a church of his choosing – weekly. He must also graduate from high school. To avoid jail time, Norman gave Alred a maximum 10-year deferred sentence....

“It’s not going to be automatic, I guarantee you,” Norman said of the church sentence on future manslaughter charges. “There are a lot of people who say I can’t do what I did. They’re telling me I can’t legally sentence someone to church.”

Alred’s lawyer is not among the critics. “I usually represent outlaws and criminals,” defense attorney Donn Baker told the Muskogee Phoenix. “This is a kid that made a mistake. I think he’s worth saving.”

In the courtroom this week, an emotional scene between the victim’s family and Alred played out after statements from Dum’s mother, father and two sisters were read during the sentencing. Dum’s father and Alred stood up in court, turned toward each other and embraced one another. “At that moment, it sure became a reality to me that I would sentence this boy to church” to help set him on the right path, Norman, a member of First Baptist Church in Muskogee, said. “There’s nothing I can do to make this up to the family.

“I told my preacher I thought I led more people to Jesus than he had but, then again, more of my people have amnesia. They soon forget once they get out of jail.”

After completing the rest of the requirements in his sentence, Alred will have the charge removed from his record. “Only time will tell if we’ve saved Tyler Alred’s life,” the judge said.

Is the BP federal plea deal concerning 2010 Deepwater Horizon disaster worthy of celebratation (or criticism)?

The question in the title of this post is prompted by this press release from the Justice Department, which carries this heading: "BP Exploration and Production Inc. Agrees to Plead Guilty to Felony Manslaughter, Environmental Crimes and Obstruction of Congress Surrounding Deepwater Horizon Incident."  Here are excerpts from the press release:

BP Exploration and Production Inc. (BP) has agreed to plead guilty to felony manslaughter, environmental crimes and obstruction of Congress and pay a record $4 billion in criminal fines and penalties for its conduct leading to the 2010 Deepwater Horizon disaster that killed 11 people and caused the largest environmental disaster in U.S. history, Attorney General Eric Holder announced today.  The 14-count information, filed today in U.S. District Court in the Eastern District of Louisiana, charges BP with 11 counts of felony manslaughter, one count of felony obstruction of Congress, and violations of the Clean Water and Migratory Bird Treaty Acts.

BP has signed a guilty plea agreement with the government, also filed today, admitting to its criminal conduct.  As part of its guilty plea, BP has agreed, subject to the Court’s approval, to pay $4 billion in criminal fines and penalties -- the largest criminal resolution in United States history.

“The $4 billion in penalties and fines is the single largest criminal resolution in the history of the United States and constitutes a major achievement toward fulfilling a promise that the Justice Department made nearly two years ago to respond to the consequences of this epic environmental disaster and seek justice on behalf of its victims,” said Attorney General Holder.  “We specifically structured this resolution to ensure that more than half of the proceeds directly benefit the Gulf Coast region so that residents can continue to recover and rebuild.”

“The explosion of the rig was a disaster that resulted from BP’s culture of privileging profit over prudence,” said Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division. “We hope that BP's acknowledgment of its misconduct -- through its agreement to plead guilty to 11 counts of felony manslaughter -- brings some measure of justice to the family members of the people who died onboard the rig.”...

In addition to the resolution of charges against BP, Robert M. Kaluza, 62, of Henderson, Nev., and Donald J. Vidrine, 65, of Lafayette, La. -- the highest-ranking BP supervisors onboard the Deepwater Horizon on April 20, 2010 -- are alleged to have engaged in negligent and grossly negligent conduct in a 23-count indictment charging violations of the federal involuntary manslaughter and seaman’s manslaughter statutes and the Clean Water Act. David I. Rainey, 58, of Houston -- a former BP executive who served as a Deputy Incident Commander and BP’s second-highest ranking representative at Unified Command during the spill response -- is charged with obstruction of Congress and making false statements to law enforcement officials.  A grand jury in the Eastern District of Louisiana returned the indictments against Kaluza, Vidrine and Rainey, which were unsealed today....

The information charging BP further details that the company, through senior executive Rainey, obstructed an inquiry by the U.S. Congress into the amount of oil being discharged into the Gulf while the spill was ongoing.  As part of its plea agreement, BP has admitted that, through Rainey, it withheld documents and provided false and misleading information in response to the U.S. House of Representatives’ request for flow-rate information....

The criminal resolution is structured such that more than half of the proceeds will directly benefit the Gulf region. Pursuant to an order presented to the Court, approximately $2.4 billion of the $4.0 billion criminal recovery is dedicated to acquiring, restoring, preserving and conserving -- in consultation with appropriate state and other resource managers -- the marine and coastal environments, ecosystems and bird and wildlife habitat in the Gulf of Mexico and bordering states harmed by the Deepwater Horizon oil spill.  This portion of the criminal recovery will also be directed to significant barrier island restoration and/or river diversion off the coast of Louisiana to further benefit and improve coastal wetlands affected by the oil spill.  An additional $350 million will be used to fund improved oil spill prevention and response efforts in the Gulf through research, development, education and training.

In addition to the historic $4 billion in criminal fines and penalties, BP has agreed as part of its guilty plea to retain a process safety and risk management monitor and an independent auditor, who will oversee BP’s process safety, risk management and drilling equipment maintenance with respect to deepwater drilling in the Gulf of Mexico.  BP is also required to retain an ethics monitor to improve BP’s code of conduct for the purpose of seeking to ensure BP’s future candor with the United States government....

Today, the SEC simultaneously resolved civil securities fraud charges with BP in a $525 million settlement.  The Justice Department also acknowledges and expresses its appreciation for the significant assistance provided by the SEC’s Division of Enforcement.

Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issues

The Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images.  Here is the final paragraph from the lengthy unanimous panel opinion:

To summarize: The defendant’s prison sentence is affirmed.  The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases.  The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images.  The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.

California voters approve new sex offender law, parts of which get swiftly blocked by federal judge

I have not closely followed the particulars of Proposition 35 in California, a human trafficking ballot initiative which generated limited debate or controversy before election day.  But, as reported in this new piece from Wired, the initiative received overwhleming support yesterday and today was partially block by a federal judge.  Here are the details:

Immediately following the passage of a California proposition that would dramatically curtail the online, First Amendment rights of registered sex offenders, two civil rights groups filed a lawsuit to block parts of the overwhelmingly approved measure.

Proposition 35, which passed with 81 percent of the vote Tuesday, would require that anyone who is a registered sex offender — including people with misdemeanor offenses such as indecent exposure and whose offenses were not related to activity on the internet — would have to turn over to law enforcement a list of all identifiers they use online as well as a list of service providers they use.

The Californians Against Sexual Exploitation Act would force sex offenders to fork over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites or at online forums and in internet chat rooms.

The American Civil Liberties Union and the Electronic Frontier Foundation, which filed their suit (.pdf) on behalf of two registered sex offenders, say that although the measure is vaguely worded, in practice it likely means that registered sex offenders would have to provide user and screen names that they use for participation in online political discussion groups, forums about medical conditions, and even the comment sections of online newspapers and blogs....

The lawsuit, filed in San Francisco federal court, is demanding that a judge immediately block the measure’s internet-reporting provisions.... Michael Risher, an ACLU attorney, said Californians should be concerned that even though the bill only affects registered sex offenders now, the law creates a slippery slope for the same requirements to be applied to others.

He points, for example, to a California DNA-collection law that has expanded dramatically beyond the people it first targeted. Initially, the law required only those convicted of sex offenses and serious felonies to provide authorities with a DNA sample to be included in a state and federal database. But in 2004, this expanded to anyone convicted of a felony, and in 2009, to anyone simply arrested for a felony....

The measure would currently affect some 73,000 sex offenders registered in California, but the law also requires those convicted of human trafficking to register as sex offenders, thus widening the pool of people affected.

UPDATE: Citing First Amendment concerns, U.S. District Judge Thelton Henderson in San Francisco agreed with the plaintiffs, and late Wednesday tentatively blocked enforcement of the measure (.pdf) pending further litigation.

California appeals court upholds probation condition prohibiting use of medical marijuana

This local article, headlined "Antioch man cannot use medical marijuana while on probation for pot sales, court rules," reports on an interesting ruling from a California intermediate appellate court. Here are the details:

A state appeals court ruled in San Francisco on Monday that trial judges can ban the use of medical marijuana in some cases as a condition of probation for people convicted of possessing the drug for sale.

A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation.

Leal was sentenced to the probation term as well as to nine months in county jail after being convicted of possessing marijuana for sale in two incidents in Antioch in 2008 and 2009 and carrying a concealed, loaded gun in the first incident. Leal, who has completed his jail sentence, appealed the probation condition barring him from using medical marijuana.

He argued the ban violated his right to use the substance under the state's voter-approved Compassionate Use Act of 1996, which allows patients with a doctor's approval to use marijuana for medical purposes. Leal, who had approval for marijuana treatment for high blood pressure, contended the probation condition wasn't related to his crimes and that there could have been a way to limit his use of medical marijuana without prohibiting it entirely.

But Justice Anthony Kline, writing for the appeals panel, said the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public."...

Kline wrote in Monday's decision that trial judges setting probation conditions must balance the need to protect the public with California residents' right to use medical marijuana. He said there could be cases in which a ban would not be justified if a defendant posed little threat to society and had proved a compelling need for marijuana to alleviate pain.

But the evidence in Leal's case didn't show an overriding medical need and did show "both rehabilitative and public protection value in interfering with Leal's medical use of marijuana while on probation," Kline wrote.

Leal's lawyer in the appeal, Donald Lipmanson of Sebastopol, said no decision has been made on whether to ask the California Supreme Court to review the case. Lipmanson said the decision was consistent with other state appeals court rulings on the issue, but said the panel's purpose in issuing the detailed 22-page opinion may have been "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."

The full opinion in California v. Leal, No. A131366 (Cal. 1st App. Oct. 29, 2012), is available at this link.

The most (unsurprisingly) ignored potential voting group: former felons

This Reuters article, headlined "U.S. felons a potentially powerful yet shunned voting bloc," spotlights that there is one notable group of voters who have not gotten any love or attention this election season. Here are excerpts from this piece:

Felons could account for up to 10 percent of the roughly 130 million Americans expected to vote in the November 6 election, more than enough to affect the razor-thin margins that could determine the outcome.  But as in years past, neither Democrats nor Republicans are doing much to reach out to them.

"Criminals are not a popular constituency," says James Hamm, 64, who spent 17 years in prison in Arizona for a drug-related homicide and now heads an inmate advocacy group with his wife, a retired judge.  "Politicians don't want to say, 'Hey, I have the backing of people who committed crimes.'"

Still, both presidential campaigns have reason to be attentive to the estimated 13.4 million felons who are eligible to vote.

Felons traditionally vote Democratic, says Christopher Uggen, a University of Minnesota sociologist, who co-authored a 2006 book, "Locked Out: Felony Disenfranchisement and American Democracy." That is because felons come disproportionately from groups that align with Democrats, such as minorities, the poor and urban residents. In this group, Uggen says, "you aren't going to find too many Mitt Romney supporters."

A 2010 study that Uggen participated in found that just one in five felons who are eligible to vote actually do so, most mistakenly believing they are not.  Myriad state laws that take different approaches to restoring felons' voting rights contribute to the confusion....

In 38 states, most felons automatically regain the right to vote once they complete their sentences, according to the National Conference of State Legislatures.  Felons in others states must not only complete their sentences but wait a certain amount of time before they can again cast ballots.  In Maine and Vermont, felons never forfeit their right to vote. In Florida, Iowa, Kentucky and Virginia, felons are barred from voting unless the governor decides otherwise....

"Studies show that the recidivism rate for felons goes down significantly when they are given back their basic civil rights, including the right to vote," said Ron Bilbao of the ACLU in Florida. "The governor went in the wrong direction."

Marc Mauer, executive director of the Sentencing Project, a nonprofit advocacy group for criminal justice, said ex-inmates are generally ignored when it comes to voting.  "There simply isn't a lot of encouragement for them to even register," said Mauer.  "If we believe everyone should vote, we shouldn't put character conditions on it."

Ninth Circuit finds "fundamental right of to familial association" made special sex offender SR conditions "substantively unreasonable"

A lengthy opinion from the Ninth Circuit today in US V. Wolf Child, No. 11-30241 (9th Cir. Oct. 23, 2012) (available here), should be of interest to anyone who has ever been concerning about the application of broad supervised release conditions. Here is how the panel opinion gets started:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer.  The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée.  It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.  We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.”  The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary.  Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals.  Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer.  On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child’s contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.

Federal judge finds unconstitutional Nebraska's statute criminalizing all sex offender use of social networking sites

As reported via this post by David Post at The Volokh Conspiracy, yesterday US District Judge Richard Kopf declared unconstitutional a portion of Nebraska's sex offender registry law making it a crime for registered sex offenders to make any use of any social networking web site.  The full, lengthy opinion is available at this link, and here is how it begins:

Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there. By that, I meant that it is not my prerogative to second-guess Nebraska’s policy judgments so long as those judgments are within constitutional parameters.  Accordingly, I upheld many portions of Nebraska’s new sex offender registration laws even though it was my firm personal view that those laws were both wrong-headed and counterproductive. 

However, I had serious constitutional concerns about three sections of Nebraska’s new law.  After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns.  The trial has now been concluded, and I have decided that the remaining portions of Nebraska’s sex offender registry laws are unconstitutional.

In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path.  For three sections of Nebraska’s new sex offender registry law, Nebraska has violently swerved from that path.  I next explain why that is so.

UPDATE: This new local article about this ruling provides some more information concerning the rulign and some reactions.  Here are excerpts:

On Thursday, Omaha attorney Stu Dornan, whose firm represented the men and women challenging the laws as John and Jane Doe, hailed this week's ruling, saying the laws had left people on the Nebraska Sex Offender Registry unsure whether they could text or email family members or even turn on a computer.

He said Kopf's ruling upheld the Constitution as a document that protects even sex offenders, who are viewed by many Nebraskans, as Kopf said in his order, as the lepers of the 21st century. "The Constitution, if it does not protect this group of people, it does not protect any of us," Dornan said....

As scathing as Kopf's 73-page order was at times, the judge did also set out a pathway for Nebraska lawmakers to cure it. "Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary -- use a scalpel rather than a blunderbuss," the judge said. As it was, Kopf said Nebraska lawmakers had gone too far, putting a stake through the heart of the First Amendment and gutting protections against suspicion-less searches....

At trial, the attorney general's office argued that the laws did not keep offenders from using the Internet entirely. But Kopf said the Nebraska Legislature went far beyond its purported purpose when it criminalized the provisions. "These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens," he said. "They are silenced. They are rendered insecure in their homes."

He said lawmakers could draft a statute that required convicted sex offenders to provide Internet addresses that the state could track, rather than requiring sex offenders to constantly update the state about when and where they post, for instance. The state also could narrow social networking and chatroom restrictions to offenders who committed their crimes using the Internet, he said....

Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said his office respectfully disagreed with the court's decision. "We are reviewing the ruling and assessing our options," she said.

Intriguing Seventh Circuit discussion of onerous terms of supervised release

The Seventh Circuit today has issued in US v. Quinn, No. 12-2260 (7th Cir. Oct. 18, 2012) (available here), a very short and very interesting opinion discussing supervised release terms. Here is an excerpt:

Quinn asked the judge to choose a ten-year term of supervised release. He submitted a forensic psychologist’s evaluation, which concluded that he has a lowerthan- normal risk of recidivism.  He also submitted the testimony that two psychologists (Michael Seto and Richard Wollert) recently had presented to the Sentencing Commission regarding the recidivism rate for persons convicted of child-pornography offenses....  [But] the district judge did not discuss either the length of supervision or the terms that Quinn would be required to follow while under supervision.

The prosecutor has confessed error, and we agree with the prosecutor’s conclusion that a district judge must explain important decisions such as the one at issue here. On remand the judge should consider not only how Quinn’s arguments about recidivism affect the appropriate length of supervised release, but also the interaction between the length and the terms of supervised release.  The more onerous the terms, the shorter the period should be.  One term of Quinn’s supervised release prevents contact with most minors without advance approval.  Quinn has a young child, whom he has never been accused of abusing.  Putting the parent-child relationship under governmental supervision for long periods (under this judgment, until the son turns 18) requires strong justification.

Our research has turned up only a few decisions that discuss the relation between the terms and length of supervised release.  The third circuit has observed that the more onerous the term, the greater the justification required — and that a term can become onerous because of its duration as well as its content.... Rules that allow public officials to regulate family life likewise call for special justification, and lifetime regulatory power is hard to support when the defendant has not been convicted of crimes against his family or other relatives.  Other terms of Quinn’s supervised release also may require strong justification when extended for a lifetime.

Although district judges can reduce the length of supervised release, or modify its terms, at any time, 18 U.S.C. §3583(e) — an opportunity that may lead a judge to think that uncertainties at the time of sentencing should be resolved in favor of a long (but reducible) period — still this is a subject that requires an explicit decision by the judge after considering the defendant’s arguments.  The judge also should consider the possibility of setting sunset dates for some of the more onerous terms, so that Quinn can regain more control of his own activities without needing a public official’s advance approval, while enough supervision remains to allow intervention should Quinn relapse.

With Texas schools now RFID tracking, is broad criminal justice use of this technology on the horizon?

Long-time readers may recall that more than half a decade ago I was asking in this post whether microchip inplants to track offenders might be an unavoidable inevitability.  To some extent, broad GPS tracking of sex offenders in many states has begun a move in this direction. 

I have long thought the increased use of this technology for non-criminals would be a key social development that could make more people more inclined to be more comfortable with this kind of Big Brother approach to criminal justice.  Consequently, this recent media story coming from Texas about a new use of RFID tracking caught my attention.  The story is headlined "RFID chips let schools track students -- and retain funding -- but some parents object," and here are excerpts:

Two San Antonio schools have turned to radio frequency identification (RFID) technology to help administrators count and track the whereabouts of students on campus.

Students at Anson Jones Middle School and John Jay High School are required to wear ID cards imbedded with electronic chips, similar to highway toll tags, which allow schools to more accurately record daily attendance.  Public school funding is often tied to the number of students attending class each day....

Pascual Gonzalez, Northside’s communications director, estimates the entire district has been losing about $1.7 million a year because of underreported attendance. He says the RFID system, which costs $261,000, should pay for itself in the first year....  Principal Wendy Reyes says the system has the added benefit of allowing her to find a particular student instantly. “Sometimes it’s difficult to locate a student in a sea of 1,200 others, so this helps locate them in an emergency,” she said. The ID tags can only be read on campus, so students cannot be tracked outside the building.

Some parents and students fear the radio ID tags are just too much Big Brother.  Steve Hernandez, whose daughter is a sophomore, objects to the tags on Biblical grounds. He compared the badges to the “mark of the beast” as described in the Book of Revelations.... The American Civil Liberties Union calls the RFID tags “dehumanizing.”

“What kind of lesson does it teach our children if they’re chipped like cattle and their every movement tracked?” asks Jay Stanley, senior policy analyst with the ACLU’s Washington, D.C. office. “It doesn’t create the kind of independent, autonomous people that we want in our democratic society.”

Gonzalez, Northside’s spokesman, says school administrators have no intention of spying on students.  “There’s a misconception that somebody’s sitting in a room with a bank full of monitors looking at where 1,200 kids are here at Anson Middle School. That’s not true,” he said.  “It’s not even feasible.  We’re not staffed nor are we interested in knowing where all the kids are at a particular moment.”

What the RFID system does do, according to Gonzales, is provide an accurate, daily census of students, which helps the district make money.  Based on early results, the district may consider expanding the RFID system to its other 109 schools, encompassing nearly 100,000 students.

I find the quotes from various folks in this story especially notable given the potential application of this technology in criminal justice setting: I suspect many policy-makers would be glad, not troubled, to adopt a technology which might be viewed as "dehumanizing" for certain types of offenders, and I am certain there is some policy interest (and some public benefits) from having the every movement of high-risk offenders tracked.  And though some are quick to object to any further monitoring of sex offenders, I wonder if there would be the same concerns about using RFID to track potentially violent men who are subject to a restraining order due to a history of domestic violence.

Some older related posts on tracking technologies:

• Are microchip implants for offenders inevitable?
• A sober (and caffeinated) look at GPS tracking realities
• The practical challenges of sex offender tracking
• Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• New article examining incapacitation innovations

New California sex offender lawsuit challenges local restrictions on access to public parks and beaches

As reported in this new Los Angeles Times article, it is not just local Halloween ordinances being subject to constitutional attack by sex offenders in California (details on the Halloween suit are here and here). This article, headlined "Four Orange County cities sued over sex offender laws," reports on a new and different federal lawsuit going after another popular restriction on sex offender activities.  Here are the details of this distinct lawsuit:

A registered sex offender has filed suit against four Orange County cities, challenging the constitutionality of a law that bans sex offenders from using public parks, beaches and even some roadways. The suit is aimed at Costa Mesa, Huntington Beach, Seal Beach and Lake Forest, which have all modeled local ordinances on the county's sex offender law, which bans offenders from entering county parks and other public facilities. It is considered one of the most aggressive sex offender laws in California.

The lawsuit, filed in U.S. District Court, claims the local laws that ban the plaintiff, a registered sex offender, from entering city parks or visiting beaches violate the Constitution and his protected rights under the law. The San Francisco law firm representing the man, identified only as "John Doe" in the lawsuit, said the ban violates his 1st, 5th and 14th Amendment rights.

The lawsuit alleges that the plaintiff, by being banned from entering public property, is unable to peaceably assemble, speak freely, travel via some public roads, receive information and petition the government. The ban also deprives him of his liberties without a fair hearing and prevents him from judicial access, the lawsuit said.

Susan Kang Schroeder, chief of staff to the Orange County district attorney, defended the local laws as constitutional. Fourteen cities in Orange County have now adopted sex offender rules at the urging of the district attorney. "Protecting children from sexual predators, I believe, is one of the most important duties of government," Schroeder said....

The lawsuit asks the courts to permanently stop the four cities from enforcing their bans and declare the laws unconstitutional. The plaintiff was convicted more than 15 years ago, the suit said, and has long since served his sentence and been treated and is now employed and married with children.

"A Demise Greatly Exaggerated — Apprendi Is Extended to Criminal Fines"

The title of this post is the title of this notable new piece authored by David Debold and Matthew Benjamin appearing in a recent issue of Bloomberg BNA’s Criminal Law Reporter.  The piece discusses the Supreme Court's Sixth Amendment work last Term in Southern Union, and here are two notable paragraphs from the piece's introduction:

Although relatively straightforward in its reasoning, the Southern Union holding has potentially farreaching consequences.  As Apprendi and later cases did with respect to sentences of imprisonment or death, Southern Union will strengthen the relative bargaining position of criminal defendants in plea negotiations over fines.  This is particularly true for corporations and other organizational defendants, for whom the most potent available punishment is a large fine and for whom the most likely resolution of criminal misconduct allegations is a settlement agreement.

Southern Union also can be expected to usher in new battles regarding the admissibility at trial of evidence that the decision now makes relevant to establishing a defendant’s maximum fine.

Finally, Southern Union suggests that the court — including its two newest members, Justices Sonya Sotomayor and Elena Kagan, both of whom joined the majority — is firmly committed to Apprendi and may consider recognizing that its constitutional protection extends to another financial penalty in criminal cases: restitution.  In short, reports of Apprendi’s possible demise — which started circulating after the court’s 2009 decision in Oregon v. Ice — appear to have been greatly exaggerated.

More on sex offenders' First Amendment challenge to local halloween challenge in California

In this post a few days ago, I reported on a notable (and groundbreaking?) legal action against a common local law this time of year being brought in California. Thanks to this new local article, headlined "Calif. Sex Offenders Sue to Overturn Halloween Restrictions," I can provide more information about this intriguing litigation:

An attorney representing five sex offenders who sued a southern Californian city over limits to their Halloween activities said the lawsuit will be the first of several she expects to file over such restrictions. Lawyer Janice Bellucci heads the 18-month-old advocacy group California Reform Sex Offender Laws. On Friday, she filed a lawsuit in federal court claiming that Simi Valley's ordinance violates her clients' First Amendment rights.

The suit seeks a judge's order prohibiting enforcement of the ordinance in Simi Valley, which has 119 registered sex offenders, according to a city report. Bellucci is representing five unnamed sex offenders, three of their spouses and two minor children, she said.

The ordinance, adopted Sept. 10, prohibits registered sex offenders in the Ventura County city of about 125,000 from displaying Halloween decorations, answering the door to trick-or-treaters or having outside lighting after dark on Oct. 31. Simi Valley councilman and LAPD officer Mike Judge said the law is modeled after similar Halloween laws enforced in other California cities, and is meant to protect children....

Registered sex offenders are also required to post signs with on their front doors reading, in 1-inch letters, "No candy or treats at this residence." Those offenders visible to the public on the state's Megan's Law website and convicted of a crime against a child are required to post the sign.

Sixty-seven of the city's offenders are listed on the website, according to a city report; the rest are convicted of misdemeanors and don't have their names on the public list.

Bellucci said the sign-posting requirement was "particularly egregious." "We consider that to be a violation of the U.S. Constitution," Bellucci said Tuesday.

The ordinance both imposes "forced speech" – the sign – and restricts speech by prohibiting Halloween celebrations, she said. "It's similar to Jews in Nazi Germany who had to wear the yellow star on their clothing," Bellucci said.... Her organization intends to begin filing lawsuits to challenge other statutes, she said.

The office of Simi Valley City Attorney Marjorie Baxter said the city had not been served with Bellucci's complaint, so it had no comment as of Tuesday afternoon. Baxter was quoted in the Ventura County Star, which first reported on the lawsuit, as saying: "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously."

Those who are convicted of violating the ordinance would be guilty of a misdemeanor and subject to a fine of up to $1,000 and/or up to six months in county jail, according to a city staff report. California residents who have been convicted of or pleaded no contest or guilty to a sex-related offense must register with local public safety authorities. Offenders are listed on the registry for life.

Recent related post:

• Sex offenders claim First Amendment violated by local Halloween ordinance targeting them

En banc Fifth Circuit clarifies its standard for restitution in child porn downloading cases

The Fifth Circuit has a huge and potentially hugely consequential en banc ruling today in In re Amy Unknown, No. 09–41238 (Oct. 1, 2012) (available here), concerning the standards for restitution awards in child pornography downloading cases. Here is how the lengthy opinion for the majority begins and ends:

The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.

This en banc court holds that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We VACATE the district courts’ judgments in both of the cases below and REMAND for further proceedings consistent with this opinion....

For the reasons above, we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse. We VACATE the district courts’ judgments below and REMAND for proceedings consistent with this opinion

The bold in the last paragraph above was added by me, in part to highlight why this issue seems now destined for a cert grant in some case before too long.

Sex offenders claim First Amendment violated by local Halloween ordinance targeting them

The Ventura County Star has this interesting article, headlined "Lawsuit seeks to block Simi Valley's Halloween sex offender ordinance," reporting on a notable (and groundbreaking?) legal action against a common local law this time of year.  Here are the details:

A federal lawsuit filed Friday seeks to block enforcement of Simi Valley's new Halloween sex offender ordinance, contending it is unconstitutional.  The lawsuit alleges that the ordinance violates the First and 14th Amendments because it "suppresses and unduly chills protected speech and expression."

The suit was filed in U.S. District Court in Los Angeles by five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents.  They are identified only as John and Jane Does.

It's the first time one of the Halloween sex offender laws passed by a number of California cities, including Ontario and Orange, has been challenged in court, said Santa Maria attorney Janice Bellucci.

Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit, which also seeks unspecified financial damages, on behalf of the plaintiffs.

Simi Valley City Attorney Marjorie Baxter said the lawsuit is groundless.  "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously," she said.

The Simi Valley City Council adopted the law — the only one of its kind in Ventura County — to prevent sex offenders from having contact with trick-or-treating children on Halloween. Championed by Mayor Bob Huber, a lawyer who is seeking re-election in November, the measure applies to the several dozen convicted child sex offenders who live in the city and are listed on the Megan's Law website.

The ordinance requires the offenders to post signs on their front doors saying, "No candy or treats at this residence."  It also bars them from opening their doors to children on the holiday, displaying Halloween decorations or having exterior lighting on their property from 5 p.m. to midnight on Oct. 31....

The lawsuit argues that the ordinance prohibits "a discrete and socially outcast minority from expressing any publicly viewable celebration of Halloween" and "forces this group to impose a burden on their own safety and that of any person who resides with them by requiring them to turn off all exterior lighting at their residences on Oct. 31 every year." The ordinance also publicly shames the sex offenders "by mandating that they place a large content-specific sign on their door every year," the lawsuit contends.

But Councilman Mike Judge noted at the council's Aug. 20 meeting that the ordinance was limited to registered sex offenders on the Megan's Law website, which publicly lists their identities.  "We're not branding them," Judge, a Los Angeles police officer, said. "They're already branded."

Bellucci argues that there are no reported instances of a child being molested while trick-or-treating. According to her group's website, the organization is "dedicated to restoring civil rights for those accused and/or convicted of sex crimes."

"Optronics Sentencing Could Break All Sorts of Antitrust Records"

The title of this post is the headline of this new Wall Street Journal article, which gets started this way:

A San Francisco federal courtroom on Thursday could be home to a watershed moment in the history of U.S. antitrust law.

U.S. District Judge Susan Illston is scheduled to sentence Taiwan’s AU Optronics Corp. on its March conviction for participating in a scheme to fix prices on liquid-crystal-display panels. The Justice Department is asking her to impose a $1 billion fine. Yes, that’s billion, with a B.

“This sentencing is one of the most important antitrust events in recent history,” says Allen & Overy partner John Terzaken, a former director of criminal enforcement in the department’s Antitrust Division.

The sentencing hearing is a rare event for several reasons and not all have to do with the financial stakes. But let’s start with the money. The fine sought by the government is twice the size of the largest single fine it has ever collected in an antitrust case — $500 million against F. Hoffmann-La Roche Ltd in 1999, which pleaded guilty to leading a price-fixing cartel on vitamins.

The $1 billion request also is nearly double the amount the Justice Department obtained in total criminal antitrust fines — in all cases — during the last fiscal year. It’s also more than the $890 million in combined criminal fines that seven Asian companies have agreed to pay in the LCD investigation, which dates back to 2008.

Of course, those seven companies, including LG Display Co. and Sharp Corp., agreed to plead guilty. AU Optronics chose to fight the charges at trial, a decision companies rarely make because the potential criminal fines imposed after a conviction can be very high. The AU Optronics jury found the LCD conspiracy resulted in ill-gotten gains of more than $500 million, a finding that allowed the Justice Department to seek the $1 billion fine.

Also of note in Thursday’s hearing, the department is seeking stiff sentences for two convicted company executives, asking Judge Illston to impose 10-year prison terms. That’s far beyond the longest jail sentence the department ever has obtained for a Sherman Act violation: four years.

Lawyers for the two executives say there’s no justification for the lengthy sentences the department is seeking, especially because LCD executives who pleaded guilty have received sentences of 14 months or less.

This sentencing matter could bring new meaning (and a notable price-tag) to the term "trial penalty" for both the company and its executives.

UPDATE:  This AP story reports on the sentencing outcome handed down by the sentencing judge on Sept. 20: "A Taiwanese company has been fined $500 million and two of its former top executives sentenced to three years in prison for their leading roles in a global LCD screen price-fixing conspiracy."

South Carolina Supreme Court reconsidering big constitutional ruling concerning broad GPS tracking

As reported in this prior post, last May the South Carolina Supreme Court issued a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here).   Via this new AP article, I now see that this Dykes case was reheard today, though it is not clear whether we may get a new (or clearer) opinion this time around. Here are the basics:

Even after hearing the case a second time, the South Carolina Supreme Court isn't sure it is fair to make some sex offenders in the state face lifetime satellite monitoring of their every move without any chance of appeal.

The justices Tuesday reheard a case from May where they decided the monitoring may be too harsh in some cases. The Department of Probation, Parole and Pardon Services asked the court to reconsider its ruling, saying their decision rewrote the law.

A lawyer for Jennifer Dykes again argued her constitutional rights were violated because she had no chance to appeal or revisit the decision to put a bracelet on her ankle that reports her every move to state authorities.

Dykes, 32, was ruled to be a sex offender after being convicted of a lewd act on a child charge stemming from her relationship with a 14-year-old girl in Greenville County several years ago. She was found to be at low risk to abuse a child again.

After violating her probation by drinking alcohol, continuing a relationship with a convicted felon she met while behind bars and rescheduling too many appointments for sex offender counseling, Dykes' probation was revoked, according to court documents.

The probation violation meant under state law authorities could seek lifetime monitoring for Dykes without a chance of appeal.... Dykes' lawyer, Chris Scalzo, held up his wedding ring and said while he loves his wife and wears it nearly all the time, he can take it off. "She's not allowed to take that thing off her body unless there is a court order," Scalzo said.

An attorney for the probation agency, John Aplin, said lawmakers passed the lifetime monitoring law to protect the public. "The reason you are tracking that person every minute of every day for the rest of their life is to protect children from further future harm. It's also to help law enforcement solve crimes," Aplin said.

Chief Justice Jean Toal said she understands the need for public safety from the most dangerous offenders. But she said it is a fair question to ask if a one-size-fits-all law that doesn't allow a timely chance to appeal the ruling or ask a judge to revisit whether an offender is still dangerous is constitutional. "This court has no grief for sex offenders. But there are certainly different levels," Toal said.

Associate Justice Kay Hearn, who wrote her own opinion in May suggesting that revealing every detail of Dykes' private life to state officials violates her constitutional rights, pointed out that Dykes was not considered to be a dangerous sex offender who preys on children and would likely never change her behavior.

Prior related post:

• South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds: