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)