Tuesday, July 26, 2016

District Court explains reasons for disallowing penile plethysmograph and visual response testing for child pornography offender

A helpful reader altered me to a notable sentencing opinion handed down last week by District Judge John Kane in US v. Cheever, No. 15-cr-00031-JLK (D Colo July 18, 2016) (available here). The first part of the opinion provides a thoughtful account of the sentencing judge's accounting of application of the 3553(a) sentencing factors to defendant Shawn Cheever after his plea to a single count of possession of child pornography, but an "addendum" to the opinion is what makes it truly blog-worthy. In the addendum, Judge Kane explains why he is refusing to "authorize a treatment provider to require polygraph, plethysmograph (PPG) and visual reaction time measurements." His lengthy explanation merits reading in full, and here are a few of many interesting passages therein:

Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. Rather, just as with the polygraph (lie detector) machine, it is used as a tool of coercion by both law enforcement personnel and treatment providers.  The plethysmograph is used to obtain inculpatory admissions, the reliability of which is at best equivocal. The patient or suspect may believe he can manipulate the results — and with a modicum of sophistication or psychopathy, he may well be able to do so.  Or, the suspect or patient may succumb to the threat, overt or implied, that his refusal to submit to testing has negative implications that can result in further incarceration, withholding of privileges or being held back in the treatment or incarceration processes and therefore lie about his interests or past behavior.  Moreover, it is not fanciful speculation that false test results can be conveyed to the individual in order to reduce resistance and gain inculpatory admissions....

[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. The violation is per se. It is paradoxical that the government would mandate individuals subject to supervised release to join an administrator of the test in conduct so vile that it landed him in prison in the first place. The statute criminalizing the possession, use and distribution of child pornography has no exceptions. Both the administrator and the subject are violating the statute.  Moreover, the well-established continuing damage inflicted on the child victims portrayed in the pornography derives from the fact that they are seen repeatedly by viewers and it makes not one shred of difference to the victims that the viewer is a pervert or a therapist....

Prohibiting courts, probation and parole officers and treatment facilitators and providers from using devices that fail tests of scientific validity is necessary, but a further comment about the line Judge Noonan describes so eloquently will perhaps provide a resolution to the underlying debility.  Judge Noonan evokes the task of Orwell's "Thought Police" — and using what is "discovered" as a basis for further punishment or superficial rehabilitation. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) stated: "freedom of thought. . . is the matrix, the indispensable condition, of nearly every other form of freedom.  With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal."...

The established traditions of our law embrace the ancient common law principle that liberty should not be impinged or threatened for what a person thinks, but only for what a person does. The maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) was written long before the invention of the plethysmograph or other machines intended to probe the recesses of the mind....

Penile plethysmograph tests rely on the heavy assumption that stimuli arousal is strongly related to the potential for recidivism. Inferences by the courts about a person's potential for sexual offense based on his innermost sexual desires fail to acknowledge that arousal data is not an ineluctable precursor to deviant behavior.  This observation, a fortiori, illustrates the dangerous conflation of thought with behavior. Before administering the penile plethysmograph without questioning its obvious scientific shortcomings (not to mention its ethical implications), it is crucial that the courts, probation and parole officers and PPG evaluators recognize 1) the power of refrain; and 2) the difference between thought and action.  The presuppositionless assumption is that any "arousal level" occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses.  Urges, however, are not always overwhelming.  Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.

UPDATE:  Another helpful reader altered me that there is now this Denver Post article about the opinion in Cheever, which is headlined "Judge criticizes federal sentencing guidelines in pornography case: Kane said he would have given sex offender lesser sentence if permitted by law."

July 26, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8)

Friday, July 22, 2016

"Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses"

The title of this post is the headline of this notable new article authored by Anthony Dillof and now available via SSRN. Here is the abstract:

Federal prosecution of individuals for possessing child pornography has risen steadily and dramatically over the last twenty years.  As the number of prosecutions has increased, so have the penalties.  Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence.  The article considers whether such sentences are just, fair and proportionate.  To answer this question, the article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished.

The article argues that while the possession of child pornography by a large group of persons in aggregate creates significant social harm — for example, a robust market for the production of child pornography — individual acts of possession, considered at the margin, have only a trivial impact.  This raises a serious problem of disproportionality in punishment for retributivists.  The article attempts to solve this problem by developing a theory of aggregate harm offenses.  According to this theory, even acts that have little marginal impact may constitute serious moral wrongs insofar as they violate the principle of rule consequentialism.  Rule consequentialism requires acting pursuant to a rule with desirable social consequences.  The article develops a rationale for rule consequentialism and explores how rule consequentialist norms may be used to justify and explain not only child pornography possession laws, but also a broad group of superficially unrelated criminal offenses.

July 22, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (24)

Monday, July 18, 2016

Detailing the steady growth in registered sex offenders in Texas

Web-071716-AUS-sex-offender-REGISTEREDLast week, the Austin American-Statesman had this lengthy and effective article highlighting the history and modern realities of the sex offender registry in Texas. The piece is headlined "Program to corral ballooning sex offender registry failing," and here are excerpts:

Texas started its sex offender registry 20 years ago as a way for the public and police to monitor a group of criminals believed to be virtually incapable of rehabilitation and thus likely to commit additional sex crimes. Since then, however, many studies have concluded that it is uncommon for sex offenders — particularly those who ... are designated as low-risk — to commit new offenses.

According to the Texas Department of Public Safety, more than 90 percent of the state’s registered sex offenders are not considered to be at high risk of re-offending.

Yet the registry is like a cemetery: Because many offenders are placed on it for a lifetime, or at least decades, it only expands in size. Over the past five years, Texas has added new names to the list at a rate of nearly a dozen every day.

In 2011, Texas began a so-called deregistration process. The intent was to remove those who were unlikely to re-offend from the list and, in so doing, save taxpayers money. By focusing police attention on truly dangerous offenders, it would also improve public safety.

By that measure, however, the program has been a bust. In the 5 1/2 years it has been in existence, only 58 sex offenders have been permitted to deregister from the Texas list — less than one-tenth of 1 percent of the current registry....

[T]he calculated risk offenders pose to the public typically has little to do with their appearance on the registry. While a handful of states meaningfully separate low- from high-risk offenders — Massachusetts excludes its lowest-risk offenders from the public list — many, like Texas, do not.

So-called Romeo offenders, convicted of sex with an underage girlfriend or boyfriend, exist side by side with rapists. There is no consideration as to whether a molestation occurred within a family — and thus, experts say, is statistically unlikely to reoccur outside it — or was committed by a predator snatching an unknown child off the street.

Surveys show the public believes public registries make neighborhoods safer, because sex criminals demand the extraordinary supervision and exposure. Yet research also indicates residents rarely consult the public lists.

And while some criminologists still suggest the registries improve crime rates, a growing number of studies have concluded they have had no meaningful impact on sex offenses by predicting or preventing them. “The abundance of evidence does not point to the effectiveness of registration systems in reliably classifying offenders, reducing recidivism, or preventing sex crimes,” Jill Levenson, a national expert in registry studies, concluded in a research roundup published earlier this year.

Practitioners say an offender’s appearance on the list can even have the opposite of its intended effect. Employment and housing restrictions that accompany registration — most state-regulated occupations in Texas prohibit sex offenders from holding licenses, and at least 86 cities limit where offenders can live — can drive registrants back into illegal behavior, said Pierce, who has worked with sex offenders for more than two decades.

Despite their low utility, the registries continue to balloon in size. As of June 1, Texas’ stood at 87,686 — 35 percent higher than five years ago. Maintaining the growing lists is increasingly expensive. In 2006, the Texas Department of Public Safety assigned 10 staffers and spent $343,000 to manage the registry. By last year, it required 21 employees and nearly four times the money.

Local law enforcement agencies, where offenders must periodically check in, bear the bulk of the costs. The Houston Police Department, which monitors more than 5,000 registered sex offenders, employs 14 people — 10 of them officers — who do nothing else.

July 18, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (4)

Monday, July 11, 2016

PBS widely premiering sex offender documentary "Prevert Park"

Pervert-ParkposterAs detailed via this PBS page, tonight is the official premiere for a notable film about a notable group of criminal offenders. The film is titled "Pervert Park," and here are excepts from the PBS description of this hour-long film:

Pervert Park by Scandinavian filmmakers Frida Barkfors and Lasse Barkfors takes place at Florida Justice Transitions in St. Petersburg, Fla., founded in 1996 by Nancy Morais, the mother of a sex offender who had difficulty finding a place to live after his conviction.  It looks like your average trailer park, but this is the place 120 residents call home.  Their lives are heavily regulated: Offenders are forbidden by law from living within 1,000 feet of any place children congregate. The residents are required to check in with the Florida State Police twice a year, are monitored by satellite surveillance and are listed in a sex-offender registry easily available online as a phone app. But the park also provides space for small businesses, including a hair salon. All of the program’s staff are convicted sex offenders as well.

There are currently more than 800,000 convicted sex offenders in the United States, and the country has seen an estimated 15% increase in registered sex offenders over the past five years.  But the film offers a mindset-challenging look at this deeply stigmatized category of criminals.  According to Florida Justice Transitions president and CEO Jim Broderick, the park’s residents want to “become productive members of society and want to give back.”

The documentary does not stint on candid discussions of the offenses committed by the residents, who say they feel free to open up in-group sessions led by therapist Don Sweeney. Stories vary from that of Jamie, a 22-year-old man caught in an Internet sting after expressing interest in having sex with a minor — which Sweeney characterizes as a common case of entrapment — to far more disturbing and unforgivable crimes.

A resident named Patrick confesses to an early infatuation with pornography and a life marked by failed personal relationships. He raped a young Mexican girl, which he characterized as an act of revenge “against all women.” Several residents tell of being sexually abused as children.  Will says he was “fondled by a babysitter when I was 6 years old.”  As an adult, he exposed himself to a young girl and spent several years in jail.

A harrowing story is told by Tracy, who says her father began having sex with her when she was a child. She was later abused by her mother’s boyfriends, which “caused my body to want those same feelings.”  She eventually had sex with cousins and underwent an abortion at 11 years old; she would later have sex with her own son.  According to therapist Sweeney, Tracy was “groomed” for abuse by her father, who insisted sex was a natural way to show affection. She in turn groomed her son by asking his “permission.” He continued the cycle of abuse, later sexually assaulting a 3-year-old boy....

Pervert Park raises significant questions.  Should America give these criminals a second chance?  And can their experiences help in devising a successful strategy for reducing the growing number of sex crimes?

“The typical reaction of normal citizens is, ‘We don’t care. They committed a crime and we don’t care if they die,'” says Sweeney.  Yet one offender says it is time not only for greater public understanding of sexual crimes, but for the offenders to take the lead in stating their case.  “You have to look at the bigger picture,” he says. “Nobody will stand up and fight for us, and that’s why we’ve got to do something about it now.”

“These are the crimes that are often too painful or uncomfortable to discuss,” say filmmakers Frida and Lasse Barkfors. “These are the people no one wants to live amongst.  These are the neighbors we wish away and, through sex offender laws and labeling, literally and figuratively move to the outskirts of our towns and our lives.  And yet there they are, 1,000 feet away from our schools and our parks and playgrounds and churches.

“Although many of their crimes are unspeakable, what do we, as a community, gain from our willful silence?  If we hope to curb the cycle and culture of sexual violence, is there value in exploring the lives of sex offenders, regardless of how heartbreaking and difficult it might be?”

July 11, 2016 in Collateral consequences, Offender Characteristics, Offense Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (45)

Wednesday, July 06, 2016

Deep dives into realities of sex offender registries two decades after they started to proliferate

Vox has these two lengthy new pieces looking at the realities of sex offender registries:

Here is an extended excerpt from the first of these pieces:

The registry was designed for "sexual predators" who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: Sexual predators" were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding "sexual predators" needed to fall to parents....

Twenty years later, the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished; the idea that it’s up to potential victims to change their behavior is usually criticized as victim blaming.

Yet the sex offender registry is still going strong.

It hasn’t worked as a preventive tool. Instead, it's caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live — then further constrained by harassment or shunning from neighbors and prejudice from employers.

Some of the people on the sex offender registry have had their lives ruined for relatively minor or harmless offenses; for example, a statutory rape case in which the victim is a high school grade younger than the offender.

Others are people like Brock Turner — people who have committed serious crimes that are nonetheless very different from the ones the registry was supposed to prevent, and which the registry might, in fact, make harder to fight.

This happens often in the criminal justice system: Something designed for one purpose ends up getting used for something else. As usual, it happened because people can't agree on what society wants to do with criminals to begin with.

July 6, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (18)

Saturday, July 02, 2016

"Should a juvenile sex offender be locked up indefinitely?"

The question in the title of this post is the headline of this PBS Newshour segment, which is focused on Minnesota's experiences with indefinite commitment of sex offenders.  Here is a segment of the segment:

Elizabeth Letourneau is one of the nation’s leading experts on juvenile sex offenders. She directs the Moore Center for the Prevention of Child Sexual Abuse at John Hopkins University.  She says civilly committing juvenile sex offenders makes little sense, first because it’s incredibly costly. Minnesota spends about $125,000 per offender per year, which is roughly triple the cost of regular prison.

But, most importantly, she says it doesn’t make sense because juvenile offenders are likely not lifetime offenders.  "Among youth who are adjudicated for a sexual offense, so they have been arrested, processed, 97 percent to 98 percent will not reoffend sexually.  So, truly, the vast majority ... if they are caught committing a sexual offense, will not do it again."

Emily Piper is the commissioner of Minnesota’s Department of Human Services, which oversees the state’s sex offender program.  She says only 4 percent of Minnesota’s registered sex offenders are currently civilly committed, and she argues the state is rightly incarcerating the most troubling of those....

In 2011, a class-action lawsuit was brought against the state by a group of offenders in Minnesota’s program, including Craig Bolte, arguing they were not getting any meaningful treatment and were instead being held indefinitely.

And, last year, federal district judge in St. Paul sided with them, saying that Minnesota’s sex offender program was unconstitutional, ruling “It’s a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”

The state has appealed the decision, and a ruling is expected this fall.  In the meantime, state officials say they have already started making changes.  Five offenders have been moved into less restrictive settings, and new reviews are being done of all offenders to determine who’s a potential candidate for release and who isn’t.

Even Dru Sjodin’s mother, Linda Walker, admits that maybe some juvenile cases should be reexamined, but she hopes that, in all its reforms, Minnesota will err on the side of caution before releasing anyone.

July 2, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5)

Wednesday, June 29, 2016

Sixth Circuit affirms way-below guideline five-year child porn sentence based in part on jury poll urging sentence even lower

A number of helpful readers made sure that, despite being on the road all day, I did not miss the remarkable Sixth Circuit panel decision today in US v. Collins, No. 15-3236 (6th Cir. June 29, 2016) (available here).  I first blogged about this case here after initial sentencing, recounting these basic details via a news account:

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

Unhappy with this outcome, federal prosecutors appealed the sentence as unreasonable, but now has lost before a unanimous Sixth Circuit panel. The Court's relatively short opinion includes these passages:

The government also argues that the jury poll was an “impermissible factor[]” for the district judge to consider in crafting an appropriate sentence. Conatser, 514 F.3d at 520. We again disagree. Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence....

District courts also have the authority to “reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts.” United States v. Kamper, 748 F.3d 728, 741 (6th Cir. 2014). Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements. See United States v. Bistline (Bistline I), 665 F.3d 758, 762-64 (6th Cir. 2012) (finding that the district court “did not seriously attempt to refute” the judgments underlying the guidelines).

When establishing the Sentencing Commission, Congress directed it to take “the community view of the gravity of the offense” into account when crafting appropriate criminal sanctions. 28 U.S.C. § 994(c)(4). As reflected in his writing on the subject, and briefly in the sentencing hearing below, the district judge reasons that the Commission fell short of this directive. See Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 HARV. L. & POL'Y REV. 173, 185 (Winter 2010)....

Though we reiterate that juries lack “the tools necessary for the sentencing decision,” Martin, 390 F. App’x at 538, they can provide insight into the community’s view of the gravity of an offense. See Gwin, supra at 193-94; see also Ring v. Arizona, 536 U.S. 584, 615-16 (2002) (BREYER, J., concurring) (jurors “reflect more accurately the composition and experiences of the community as a whole” and are “better able to determine in the particular case the need for retribution”) (internal quotations and citations omitted). The jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.

June 29, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4)

Should more lenient treatment of alleged repeat Indiana University rapist garner even more national attention than Stanford swimmer sentencing?

The question in the title of this post is prompted by this remarkable new local story out of Indiana, headlined "Monroe County prosecutor frustrated in ex-IU student's plea deal in rape cases." Here are the basic troubling details:

The Monroe County Prosecutor’s Office admitted it was frustrated after a former IU student charged in two rape cases ended up spending one day in jail. John Enochs will serve one year of probation after pleading guilty to battery with moderate bodily injury as part of a plea agreement. Two rape charges against him were dismissed.

The most recent incident happened in April 2015.  According to court documents, a woman told police she’d been raped at the Delta Tau Delta fraternity house but didn’t know her alleged attacker.  She said she repeatedly told him to stop, but he held her down. Eventually she was able to leave the room and get away. Security video showed Enochs entering the room with the victim.  She left 24 minutes later; health officials said she suffered a laceration to her genitals.

While that case was under investigation, police found a similar alleged rape from 2013.  The woman involved in that case agreed to help investigators.  DNA evidence and witness statements led them to Enochs.

In a statement Monday, the Monroe County Prosecutor’s Office said the case presented a “very unusual” set of circumstances; law prevented a jury in either case from learning about the other allegation if the cases went to trial.

Prosecutors also said there were “evidentiary” problems with both cases. In the oldest allegation, the one from 2013, witnesses couldn’t recall some important details because so much time had passed and they’d been drinking. Photographs also existed that contradicted “the assertion that the complaining witness was incapable of engaging in consensual activity shortly before the alleged assault.” In the more recent case, prosecutors said DNA evidence was problematic; prosecutors also said video before and after the alleged assault did “not support the assertion of a forcible rape.” They said that made it impossible for them to prove that Enochs caused the woman’s injury.

“This turn of events was frustrating for us as prosecutors, due to the fact that there were two complaints against the defendant.  That fact is the reason we continued to pursue accountability on his part which led to this plea agreement,” Chief Deputy Prosecuting Attorney Robert Miller wrote in a statement.  Miller said Enochs originally pleaded guilty to a felony; the battery charge was reduced to a misdemeanor at the court’s discretion....

Katharine Liell, who represented Encochs in the case, said Encochs was charged with crimes he didn’t commit. Liell pointed out that prosecutors dismissed both rape charges and blamed the lead investigators for presenting “false and misleading evidence” in the probable cause affidavit charging Encochs with rape. Liell called the charges “sensationalized and false,” adding that Enochs did indeed admit to a misdemeanor.  Liell said he was “profoundly sorry for his lack of judgment.”

Because I can only infer various details about this case from this press report, I am deeply disinclined to "attack" the attorneys or the judge for their handling of this case. Still, it seems in this case we have allegations of repeat rapist essentially getting away with his crimes because he only ended up with a misdemeanor conviction and thus not only will not serve any prison time, but will not have to be on a sex offender registry or suffer any other lifetime collateral consequences that go with a serious felony conviction.

I fully understand why a "perfect storm" of factors turned the Brock Turner case into the national sentencing scandal of 2016. But, relatively speaking, the ultimate (in)justice that seems to have taken place in this case out of Indiana seems to be even more scandalous and likely ought to be of even bigger concern for those deeply troubled by the problems of sexual assaults on college campuses.

June 29, 2016 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (28)

Thursday, June 23, 2016

California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms

As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:

Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.

"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."

Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.

The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.

Prior related posts:

June 23, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, June 18, 2016

Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort

Jeannie Suk has this notable New Yorker commentary headlined "The Unintended Consequences Of The Stanford Rape-Case Recall." Here are excerpts:

Federal judges at least have lifetime tenure to insulate them from public pressure.  For the vast majority of state judges in America, who are elected and who must fund-raise and campaign to get and retain their jobs, ignoring public opinion is impossible.  The phenomenon of electing judges strikes many as antithetical to the ideals of an independent judiciary.  Pamela Karlan, a Stanford Law School professor, has suggested that “fear of future electoral retaliation” may cause pernicious judicial bias.  In fact, studies show that the prospect of a reëlection or retention campaign makes judges more punitive toward criminal defendants, and high-court judges more likely to affirm death sentences. Even more troubling, eight states provide a recall process for the public to remove a sitting judge before he or she stands for reëlection or retention.  In California, all that is necessary for a recall election is a petition that follows a certain format and has enough signatures.

We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California.  More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list....

Judge Persky’s explanation of his departure from the state guidelines included the statement that “a prison sentence would have a severe impact” on Turner.  To many, this remark appeared to discount both the harm to the victim and the effects of imprisonment on people who were not formerly élite college students.  Michele Dauber, a Stanford law professor and a family friend of the victim, is leading the campaign to force a recall election to replace Persky, stating, “We need judges who understand violence against women.”...

It is remarkable, to say the least, that sharp disagreement over a particular decision has ballooned into a widespread social movement to oust a judge.  But as the historian Estelle B. Freedman noted in the Times, earlier this week, American feminists have twice succeeded in recalling state judges because of their handling of rape cases: in San Francisco in 1913 and in Madison, Wisconsin, in 1977.  Those recall efforts coincided with the first- and second-wave feminist movements, while the current decade has brought intense student activism and government action to force schools to take campus sexual assault more seriously.  The movement to recall Persky is an expression of outrage, not just about one case but about a broader failure to acknowledge violence against young women and about the class and race privilege afforded to white male defendants.  Turner’s case is extraordinary not only because of the severity of the assault but because it occurred in public and was observed and stopped by two reliable witnesses.  Without the two students who happened upon the crime, it is unlikely that the case would even have made it to the police, given that an estimated two-thirds of sexual assaults go unreported, and that the victim here had no memory of the event.

The petitioners and supporters of the victim have every right and reason to protest the sentence imposed by Persky. And because Persky is elected, and his electorate is empowered to recall him if it is unhappy with his job performance, a recall effort is a reasonable form for their protest to take.  But the fact that it is a valid form of protest does not mean that we should be directing serious concerns about rape into a campaign to fire a judge in retaliation for an overly lenient criminal sentence.  The current recall movement could have the effect of pressuring judges to play it safe by sentencing more harshly — and there is no reason to believe that will be true only in cases with white male rape defendants.

Nonwhite men are more likely than white men to be perceived as violent, predatory, or acting without consent, by complainants, police, prosecutors, witnesses, juries, and judges — particularly if a complainant is white.  That bias translates into inequality at all levels of the criminal system, from reporting and arrest to conviction and sentencing. Of course, that bias is precisely what Turner’s victim’s allies intend to protest with their recall efforts.  But as Paul Butler, a Georgetown law professor, wrote last week, in the Times, that effort could easily lead to harsher sentences all around, even in cases where giving someone a break is the right thing for a judge to do.  “The people who would suffer most from this punitiveness would not be white boys at frat parties,” Butler argued, but rather black and Latino men, who make up a disproportionate sixty per cent of the country’s prisons and jails.

The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society.  It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties. This recall movement could not only influence who is elected to judgeships and the decisions those judges make, it could also spur harsh new legislative measures.  In the midst of our reckoning with decades-long ravages of the war on drugs, are we gearing up to have sexual assault take its place to fulfill our apparent appetite for outrage and punishment?  The existing sex-offender registries, which cause convicted people to be reviled and ostracized long after their penalty, are ready-made to support that turn.

Prior related posts:

June 18, 2016 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Wednesday, June 15, 2016

Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions

I am generally somewhat hesitant about lambasting a judge's sentencing decision when I have only limited information about the case, and I often wonder whether others' quick to critcize a particular decision have reviewed all the key evidence before going on the attack.  Relatedly, I am uniquely interested in the views and criticisms of a sentening decision lodged by anyone who was intimately involved in the case, and thus I find distinctly noteworthy this new report about new criticisms of the controversial Brock Turner sentencing.  The article is headlined "Juror slams judge in Stanford rape case, calls sentence 'a mockery' amid recall push," and here is how it gets started:    

The judge who sentenced Stanford University swimmer Brock Turner to six months in jail for sexual assault is continuing to face criticism for his decision. The effort to recall Santa Clara County Superior Court Judge Aaron Persky has gained steam, with several political groups vowing to raise money for the campaign.  Two veteran Democratic political consultants, Joe Trippi and John Shallman, decided Thursday to join the effort to force a recall election.

Then, one of the jurors who convicted Turner of sexual assault wrote a letter to Persky. The juror wrote of being “absolutely shocked and appalled” at the sentence.

“After the guilty verdict I expected that this case would serve as a very strong deterrent to on-campus assaults, but with the ridiculously lenient sentence that Brock Turner received, I am afraid that it makes a mockery of the whole trial and the ability of the justice system to protect victims of assault and rape,” the juror wrote to Persky.  “Clearly there are few to no consequences for a rapist even if they are caught in the act of assaulting a defenseless, unconscious person,” the juror wrote in the letter, which was obtained by the Palo Alto Weekly [available here].

Prior related posts:

June 15, 2016 in Celebrity sentencings, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, June 09, 2016

"The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"

The title of this post is the subheadline of this notable new Slate commentary authored by Mark Joseph Stern run under the main headline "Justice for None." The piece highlights that we are already now at the stage of seeing some backlash to the backlash over the lenient sentence given to Brock Turner. Here are excerpts:

Brock Turner is an odious criminal who committed a heinous act and deserves to go to prison for much longer than his six-month sentence requires. His trial confirmed that both racism and sexism continue to plague America’s criminal justice system, especially where rape is involved. Yet in their rush to condemn Turner’s sentence, far too many liberals have abandoned what were, not so long ago, fundamental principles of progressivism.  This willingness to toss due process out the window in sexual assault cases is, unfortunately, indicative of a broader inconsistency that plagues the American left....

[T]he movement to remove Persky from the bench will not, and cannot, be limited to this one case. It would set a clear precedent that liberals should feel empowered to knock judges off the bench when they really disapprove of their rulings.  That is an extraordinarily dangerous mindset — one conservatives have exploited for decades. In 1986, Republicans spearheaded a successful campaign to oust three justices from the California Supreme Court over their judicial opposition to capital punishment.  The overtly partisan effort politicized the court and temporarily shattered the state judiciary’s independence. More recently, anti-gay activists ousted three judges from the Iowa Supreme Court over their votes affirming same-sex couples’ right to wed.

American liberals have long looked upon these efforts as antithetical to the judiciary’s responsibility to remain above politics and faithfulness to the law.  Is that belief suspended when the judge issued a sexist ruling rather than a progressive one?  Even worse, Persky has received anonymous threats from social justice advocates outraged by his ruling. These hecklers may believe their cause to be noble, but they are taking a page straight from Donald Trump’s playbook — not a good look for activists hoping to combat everything Trump stands for.

Then there is the widely lauded victim impact statement Turner’s victim read during the sentencing hearing.  I am glad she wrote this extraordinarily powerful letter and glad so many millions have read and been moved by it.  But it had absolutely no place in the courtroom. Victim impact statements were once a liberal bête noire, and rightly so, because they seriously undermine the defendant’s due process rights.  In a criminal sentencing hearing, the judge (or jury) should consider only the facts of the case at hand in determining the defendant’s culpability.  Victim impact statements introduce a massive amount of emotion into the proceedings, allowing the judge or jury to be swayed by emotional response rather than logical reflection.  That, in turn, shifts the focus away from the defendant and toward the victim while injecting arbitrariness into the sentencing process.  The defendant’s punishment may well hinge on how emotionally compelling the victim can make his or her statement....

Liberals’ blasé attitude toward judicial impeachment and victim impact statements in the Turner case, then, must be viewed as part of a larger trend: the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence.  That is a noble cause, but it cannot justify unraveling the most cherished safeguards of our criminal justice system.  What Brock Turner did was sickening; what he received as punishment is far less than what he deserved.  But eroding due process and threatening judicial independence is not the way to bring his victim justice.

Prior related posts:

June 9, 2016 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5)

Seventh Circuit affirms above-guideline child porn sentence given to former Subway pitchman Jared Fogle

A panel of the Seventh Circuit made quick work of the appeal brought by former Subway pitchman Jared Fogle. Readers may recall Fogle received a federal sentence after pleading guilty to various child porn offense of 15 years and eight months, and on appeal Fogle asserted his sentence was unreasonable based on various alleged procedural and substantive errors. Oral argument on Fogle's appeal too place just a few weeks ago, and today this panel opinion affirmed the sentence given to Fogle and winds up this way:

Fogle attacks the district court’s overall reasoning in imposing his sentence. He characterizes the district court’s discussion as “puzzling” and claims that the various factors that the court relied upon cannot reasonably support an enhanced sentence.  For instance, he alleges that an enhanced sentence is not warranted because he only engaged in “[o]ne single act” of distribution. He tries to downplay this conduct by claiming that it was a mere “technical” violation of the statute because he only showed the video to “one individual with whom [he] was then involved with romantically and it occurred in the confines of a locked hotel room.”

Fogle’s arguments regarding substantive error are unpersuasive in light of the deference “we must give … to the district court’s determination that the § 3553(a) factors, taken as a whole, justified the extent of the variance” from the guidelines range.  Scott, 555 F.3d at 610.  The district court provided a thorough explanation for its imposition of an above-guidelines sentence, which is all that was required.  And contrary to Fogle’s allegation of double-counting, the district court properly invoked the § 3553(a) factors and explained why the aggravated nature and circumstances of Fogle’s offenses warranted a higher sentence for both counts.  Specifically, the district court noted that Fogle knew that his employee was secretly videotaping minors yet never reported this to law enforcement, as well as the fact that Fogle repeatedly acted on his attraction to minors rather than limiting himself to fantasies.  The court also discussed how Fogle’s lack of a difficult upbringing failed to mitigate the circumstances of his conviction, and how his celebrity status could be viewed as both a mitigating and aggravating factor.

In light of the district court’s sound exercise of discretion under the disturbing facts of this case, we uphold the aboveguidelines sentence as substantively reasonable.

Prior related posts:

June 9, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing whether the judicial recall effort in the controversial Standford sexual assault sentencing case is a good idea.  Here is the section's set up:

A California judge sentenced Brock Allen Turner to only six months in jail for raping an unconscious woman after a Stanford University fraternity party, despite her angry, eloquent, courtroom denunciation of the way she and other rape survivors are treated.  In response, a petition was started to hold a recall election to throw him off the bench.

But should judges be subject to recall because of an unpopular sentence or would that impede their independence?

Here are the contributions, with links via the commentary titles:

June 9, 2016 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Tuesday, June 07, 2016

Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter

The discussion of last week's lenient sentencing of a former Stanford University student convicted of multiple counts of sexual assault (basics here) has continued to generate notable mainstream and new media stories.  Here is a round up of reads some of the latest reads that I found interesting:

I also thought worth reprinting was this comment from "Joe R" deep into the comment thread of my last post about this controversial case:

Dude will be on the sex offender registry for life with a violent felony. His life is essentially over. As countless sex offenders have demonstrated with their actions by committing suicide, life in America on the registry is a fate often worse than death.

Rest assured all of you expressing outrage, this kid's life is over, and he has little to no prospect of an enjoyable fulfilling life. He is being severely punished, and hasn't gotten away with anything.

June 7, 2016 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (14)

Monday, June 06, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

Friday, May 20, 2016

Does anyone think former Subway pitchman Jared Fogle has any real chance to have his long federal sentence reversed as unreasonable?

The question in the title of this post is prompted by this local story discussing the high-profile sentencing appeal being heard today by the Seventh Circuit.  Here are the basic details:

Former Subway pitchman Jared Fogle is asking a federal appeals court judge to shorten his nearly 16-year prison sentence. A hearing on Fogle's appeal, which is scheduled this morning in the U.S. 7th Circuit Court of Appeals in Chicago, comes about six months after U.S. District Judge Tanya Walton Pratt sentenced Fogle to 15 years and eight months in federal prison.

Fogle argued that his sentence was unreasonable and that Pratt abused her discretion when she went beyond the sentence that federal prosecutors had recommended as part of a plea agreement.

The one-time face of Subway sandwiches pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. Prosecutors recommended a maximum sentence of 12.5 years, while Fogle's defense attorneys asked for five years....

On appeal, Fogle argued that the sentence he received is "procedurally flawed" for three reasons. First, Fogle did not plead guilty to production of child pornography, and he played no role in producing the images and videos he received from Taylor, according to court records filed by Fogle's attorney.

Second, the punishment is "erroneously grounded in acts that Fogle didn't do and in Fogle's fantasies," neither of which should have been used to justify an enhanced sentence, court records say. "Notwithstanding any fantasies Fogle may have had, or his discussions with third parties concerning possible sexual contact with children younger than the prostituted minors, these events never ultimately culminated in any chargeable criminal activity," court records say.

Third, the sentence was erroneously based on Fogle collecting and viewing pornography of children as young as 6. Fogle argued that although he viewed pornographic images of children, he neither collected them nor asked Taylor for the images.

The district court also seemed to punish Fogle for seeking treatment after his arrest, court records say, and erroneously rejected a probation officer's recommendation for a less harsh sentence based on the additional stress and collateral damage he will endure because of his notoriety.

Fogle also argued that he never had sex with the minors whom Taylor recorded, and never shared any of the pornographic images and videos with anyone other than on one occasion, when he showed them to a woman with whom Fogle was romantically involved. Although he expressed interest in having sex with minors as young as 14, court records say, he never actually did.

In response to Fogle's arguments, federal prosecutors said Pratt "thoroughly and appropriately explored the unusual nature and circumstances of Fogle's offenses and his history and characteristics." Although Fogle was not involved in the production of child pornography, "he knew where the production took place, knew that it was going to happen, and did nothing, instead waiting for his chance to receive the material," according to court records filed by the U.S. attorney's office.

While prosecutors acknowledged the differences between Fogle and Taylor, they said Fogle rationalized and encouraged Taylor's conduct — and, for several years, benefited from it. "Fogle's fantasies were grounded in reality, in that he fantasized about and sought actively to repeat what he had already done, i.e., pay minors for sex," court records say.

Prosecutors also echoed Pratt's statements during Fogle's sentencing hearing last November. Fogle, unlike many offenders, had a relatively easy childhood, free of abuse and neglect. Although he did seek medical treatment, he did so only after he was caught.

Prior related posts:

May 20, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, May 17, 2016

Two notable new Colorado Supreme Court rulings concerning sex offender treatment and Fifth Amendment protections

A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment.  Here are links to the opinions and the summary that appears at the start:

People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):

This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.

The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment.  In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):

The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation.  On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination.  Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.

May 17, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, May 10, 2016

Tenth Circuit finds Fifth Amendment problems in sex offender treatment program requirement as part of conditions of supervised release

A helpful reader alerted me to think interesting new Tenth Circuit panel ruling in US v. Von Behren, No. 15-1033 (1th Cir. May 10, 2016) (available here), which gets started this way:

Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography.  One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged.  The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities.  Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense.  Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision.  The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay.  We reverse on the Fifth Amendment issue.

May 10, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

Friday, May 06, 2016

First they came for the sex offenders, then for the abortion providers...

This new Mother Jones article, headlined "Alabama Passes a Bill to Regulate Abortion Clinics Like Sex Offenders," reports on how a common legislative restiction on sex offenders has inspired a restriction on abortion providers in Alabama. Here is how the article starts: 

Alabama lawmakers passed two bills in the waning hours of their legislative session on Wednesday that could close two of the state's five abortion clinics and make it harder for women to receive abortions in their second trimester.

One of the bills prohibits abortion clinics from operating within 2,000 feet of an elementary or middle school—the same restriction that applies to sex offenders. If Alabama Gov. Robert Bentley signs the bill, it may force two of the state's five abortion clinics to close, including a clinic in Huntsville which is the only one providing abortion care in the northern half of Alabama. The clinic just moved to its current location, across the street from a school, in 2014, in order to comply with other abortion restrictions passed in Alabama in 2013.

The sponsor of the bill, Alabama state Sen. Paul Sanford, likened the restrictions to those imposed on sex offenders. "We can put a restriction on whether a liquor store opens up across the street and make sure pedophiles stay away from schools," he told the Times Daily in February. "I just think having an abortion clinic that close to elementary-age school children that actually have to walk on the sidewalk past it is not the best thing."

May 6, 2016 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (10)

Wednesday, April 27, 2016

Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel

A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent.  Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively. 

What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals:

Indiana appellate courts are authorized to independently “review and revise” sentences.  Ind. Const. Art. 7, § 4; Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011).  This authority is implemented through Indiana Appellate Rule 7(B), which provides that the appellate court may revise a sentence if after due consideration of the trial court’s decision the appellate court finds the sentence is inappropriate in light of the nature of the offense and the character of the offender.  Pierce, 949 N.E.2d at 352.  As Miller shows in his brief, Indiana appellate courts have not hesitated to use this authority; he cites no less than 11 cases in which Indiana appellate courts shortened sentences in similar cases.[FN 2]

[FN 2] Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (revising 124 year sentence on four counts of child molestation to 80 years); Sanchez v. State, 938 N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts of child molestation to 40 years); Harris v. State, 897 N.E.2d 927 (Ind. 2008) (revising consecutive sentences of 50 years on two counts of child molesting to concurrent); Smith v. State, 889 N.E.2d 261 (Ind. 2008) (revising four consecutive sentences of 30 years each, a total of 120 years, to a total of 60 years); Monroe v. State, 886 N.E.2d 578 (Ind. 2008) (reducing sentence of 100 years to 50 years); Estes v. State, 827 N.E.2d 27 (Ind. 2005) (revising sentence of 267 years on 14 counts of child molesting and sexual misconduct with a minor to 120 years); Serino v. State, 798 N.E.2d 852 (Ind. 2003) (revising sentence of 385 years on 26 counts of child molestation to 90 years); Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (revising consecutive sentences of 40 years on three counts, a total of 120 years, to 80 years total); Ortiz v. State, 766 N.E.2d 370 (Ind. 2002) (revising 30 year consecutive sentences on child molesting counts to run concurrently); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190 year sentence for child molesting and related offenses to 150 years); Walker v. State, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences of 40 years on two counts of child molesting to be concurrent).

April 27, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Former House speaker gets black hole of federal prison for 15 months after sentencing supernova

In this post yesterday, I explained why I called today's sentencing of former House Speaker Dennis Hastert a sentencing supernova. Today, this ABC News piece reports on the sentencing events and outcome in federal court this morning:

Former Speaker of the House John Dennis Hastert was sentenced today in federal court to 15 months in prison and two years of supervised release after he faced one of his accusers, who identified himself publicly for the first time as Scott Cross, a former Yorkville High School wrestling student.

Cross, who was until now identified in court documents only as “Individual D,” took the stand and introduced himself as a father, husband and businessman. Cross described his abuse by Hastert as “his darkest secret as he [Hastert] became more powerful.”

Hastert has also been required to comply with a sex offender treatment program. The sentence follows an almost year-long hush money case hinging on payments Hastert made to a student he allegedly sexually abused while acting as a wrestling coach at Yorkville High School in Illinois.

Cross said Hastert had "offered massages" to him in order to help him lose weight. He went on to describe a one-time incident when he was 17, saying Hastert "grabbed my penis and began to rub me. Stunned, I pulled up my shorts and ran out of the locker room.” Cross said he decided to testify after Hastert and his defense team reached out to his brother, Illinois politician Tom Cross, for a letter of support. Tom Cross served in the Illinois House of Representatives for 22 years. Scott Cross was on the varsity wrestling team at Yorkville High School when Hastert was a coach in the 1970s.

Using a walker, Hastert approached the judge. “I am deeply ashamed to be standing here today,” he said. “I know I am here because I mistreated some of my athletes that I coached. ... I want to apologize to the boys I mistreated. I was wrong and I accept that.” Judge Durkin referred to Hastert as a "serial child molester" while delivering the sentence.

The man formerly second in line for the presidency was wheeled into court this morning by attendants. In a January court filing, Hastert’s lawyers revealed that the former speaker’s health had rapidly declined following a stroke and a blood infection, and that he now needed “assistance for most daily activities.” Hastert technically faced a maximum penalty of five years.

Dozens of Hastert’s supporters have written letters to the judge asking for mercy, including former Republican Congressional leader Tom Delay, who called Hastert “a man of integrity. He loves and respects his fellow man.” CIA Director Porter Goss called Hastert “a rock solid guy with center-of-the country values.”

Hastert pleaded guilty in October to violating bank laws in connection with paying out hush money over the years allegedly to one of his victims, and in April his defense team made a filing publicly acknowledging the “harm” he caused to “others” for “misconduct that occurred decades ago.”

April 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, April 26, 2016

You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?

MassiveStarLifecycleI have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova."  As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion."  I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.

I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case.  This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):

More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.

"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through.  I ask that you consider the man that is before you and give him leniency where you can."...

Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician.  They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks.  "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."

Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars.  He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.

In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said.  The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....

When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors.  Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.

I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment.  Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.

That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes.  (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.)  His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought  separate serious criminal charge for obstruction of justice.  

Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint.  For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys.  And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing.  (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)

So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?

April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)

Friday, April 22, 2016

Split Kansas Supreme Court, reversing itself in real time, ultimately decides that state's lifetime sex offender registration law is constitutional

In a significant ruling today in the Supreme Court of Kansas, the Court splitting 4-3 upheld the state's sex offender registration laws via an opinion in Kansas v. Petersen-Beard, No. 108,061 (Kansas April 22, 2016) (available here). This opinion has one of the strangest first paragraphs you will ever read:

Henry Petersen-Beard challenges his sentence to lifetime post-release registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).

This local article, headlined "Sex offenders win and lose in unusual rulings by the Kansas Supreme Court," explains how the court issued three rulings on these matters today and then overruled those via its final ruling in Petersen-Beard:

In an apparently unprecedented series of rulings, the Kansas Supreme Court on Friday overruled three of its own Friday opinions regarding state sex offender registration laws. In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect. But then in a fourth opinion also released Friday, the court found that those rulings were incorrect. The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.

The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions.

But for the fourth case, that district judge was replaced by the newest Supreme Court justice, Caleb Stegall.  That case was also decided 4-3, with Stegall casting the deciding vote. The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.

The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders does not violate federal and Kansas constitutional protections against cruel and unusual punishment.

In the three other cases, the court ruled that offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took affect after they committed their crimes. But those rulings apparently apply only to those three offenders. Others will be governed by the fourth ruling Friday.

April 22, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, April 17, 2016

"Colorado 8th-graders caught sexting could have to register as sex offenders"

The title of this post is the headline of this notable press report which helps highlight why so many juvenile justice advocates are so concerned about the broad reach of modern sex offender laws and registries. Here are the details:

Three Colorado middle and high schools were rocked by a string of recent underage sexting scandals, prompting police investigations. If charged, the teens involved in the case — some as young as eighth-graders — could face charges of child pornography, which would require them to register as sex offenders if convicted.

The stiff penalties for sexting has sparked a debate in Colorado and other state assemblies over whether misbehaving teens should face the same punishment as child pornographers. But efforts by the Colorado Legislature to lighten the penalties have stalled.

In the sexting case at Bear Creek, a K-8 school in Lakewood, the five students involved were in eighth grade. School leaders turned to the local police after discovering that nude photos were being circulated, The Denver Post reported. Meanwhile, Colorado Springs police were contacted last Wednesday about allegations that a partially nude photo was shared among a circle of students from two other Colorado schools, Pine Creek High School and Challenger Middle School, according to KRDO news.

At this point, no charges have been filed in any of the cases, but the Pine Creek and Challenger school cases have been handed over to the Fourth Judicial District Attorney’s Office. The juveniles involved could be hit with a felony sex offender charge.

Penalties for underage sexting vary from state to state. In Colorado, minors caught trading nude photos are legally susceptible to harsh child pornography charges. It’s one reason why the Legislature has been working toward a solution to reduce possible sentencing for teens who sext. The latest bill to reach the Legislature would reduce charges for minors to a misdemeanor, echoing the laws of 11 other states. But a vote on the Colorado measure stalled in a House committee last week. Lawmakers against the measure were primarily concerned that, while it would be good to reduce potential child pornography charges for sexters, the bill was still too harsh on kids sending nude images.

State Representative Yeulin Willet, who cosponsored the bill, says that the misdemeanor charge did not go too far. He argued that the juvenile petty offense that the bill introduced accounts legally for "virtually no crime at all" and "basically just takes that juvenile into some counseling or education, end of story."... "To say that this is a victimless situation is just not a fact," he said. "These images get stolen, hacked, now they end up in the hands of thousands or more via digital media, and now you have a suicidal young girl."

But Jennifer Eyl, director of family stability programs at the Rocky Mountain Children’s Law Center, says that even the misdemeanor charge was too harsh. It criminalized the behavior of sexting itself, even consensual sexual behavior between teens, she said, rather than targeting the issue of non-consensual spreading of nude images. "It’s really kind of this blanket prevention of sexting, which, we work with kids, we just know that that’s not going to happen. Sexting is part of 21st-century communication between teenagers," she said. Eyl also expressed concerns that the most vulnerable children — in the foster system or without strong parental involvement — were particularly susceptible to blanket charges because foster parents might be more inclined to involve police should they find nude photos.

A few prior related posts:

April 17, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8)

Wednesday, April 13, 2016

Federal district judge declines to enjoin "scarlet passport" provision of new federal International Megan’s Law

As reported in this AP piece, a "federal judge declined Wednesday to immediately block a law that requires a marker to be placed in the passports of people convicted of sex offenses against children."  Here is more about a notable first ruling about a notable provision of a notable new federal law:

Since the marker provision has not yet gone into effect, deciding whether to block it over constitutional issues would be premature, U.S. District Court Judge Phyllis Hamilton said. "It is not clear, for example, what form the identifier will take, which citizens will be required to carry a passport with the identifier, or whether the identifier will appear on the face of the passport or will be readable only by a scanner," she said.

Opponents of the marker have called it a "Scarlet Letter" that would wrongly imply that passport holders had engaged in child sex trafficking or child sex tourism and subject them to danger. Janice Bellucci, the attorney challenging the law, said she wasn't sure yet whether she would appeal Hamilton's ruling. Bellucci had requested a preliminary injunction against the law.

Bellucci said the judge missed a primary argument for blocking the law. "It doesn't make any difference what the identifier is and how it's applied to a passport," she said. "The fact is any identifier violates the constitution." Bellucci has said a marker would unlawfully compel speech.

The passport marker is part of the so-called International Megan's Law that President Barack Obama signed in February. It also requires that other countries are notified that registered sex offenders are traveling there. The Department of Justice says the law attempts to address cases where people evade such notifications by traveling to an intermediate country before going to their final destination.

Prior related posts:

April 13, 2016 in Collateral consequences, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, April 10, 2016

"Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"

A helpful reader alerted me to this article which has the title I have used for the title of this post.  I think these excerpts captures some the themes of this lengthy article: 

A focus on the juvenile sex offender — or any juvenile offender — has potential upsides. It invites audiences to see a whole person and a complex situation and to empathize with the person who has done, or been accused of doing, harm. The invocation of childhood, and its suggestion of innocence by reason of immaturity, can spread sympathy more widely to whole communities harmed by the carceral state, particularly when kids are secondary victims of parental incarceration and systemic “civil death” or disenfranchisement.

Coverage of the JSO often unpacks the category of “sex offender” — pointing out that it includes convictions for sexting, public urination and consensual sex between minors, as well as violent rape and the abuse of children; it can expose the uniquely harsh treatment of all these people by the U.S. criminal justice system and the public. These stories point to the youthful offender as collateral damage in a regime of indiscriminate and ever-escalating penalties....

But there are also significant downsides to campaigns that construct children as exceptional and different from adults. The public may just as easily be left feeling that adults who break the law are bad and deserve all they get — or that guilty people do not deserve fairness or sympathy.  This gives legislators a rationale for trading off youth-friendly criminal justice policies for harder adult penalties, as recently happened when New Mexico legalized sexting between teens but increased penalties for people 18 and older sexting with people under 18.  Not just adults but some youth can be penalized by the focus on “children.” Call the person who breaks the law a “child,” and there’s a danger that any young person not demonstrably childlike will end up prosecuted as an adult.

Exclusive focus on the young offender — rather than a rejection of the entire sex offender regime — avoids the larger, less politically popular truth. “Sex offender registries are harmful to kids and to adults,” says Emily Horowitz, associate professor of sociology and criminal justice at St. Francis College in Brooklyn, and a board member of the National Center for Reason & Justice, which works for sensible child-protective policies and against unjust sex laws. “No evidence exists that they prevent sex crimes either by juvenile offenders or adult offenders.”

Such a strategy can invite a wider range of supporters, but it also can mean inadvertent acceptance or even endorsement of policies that are antagonist to justice for wider groups, if not for everyone. For instance, [Center on Youth Registration Reform] (CYRR) is collaborating with Eli Lehrer, of the free-market think tank R Street; he is also a signatory of the conservative Right on Crime initiative.  Flagged on the CYRR site is an article by Lehrer, published this winter in National Affairs, that argues for taking kids off the registry. But the piece also concludes that ending the registries would be “unwise” and suggests they’d be really good with a few “sensible” tweaks.  Lehrer also proposes hardening policies — such as “serious” penalties for child pornography possession and the expanded use of civil commitment — that data reveal to be arbitrary or ineffective and many regard as gross violations of constitutional and human rights.

April 10, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (13)

Monday, April 04, 2016

Lots of little SCOTUS criminal justice work to start April

April is always an exciting month for me as both a sports fan and a SCOTUS watcher: as a sports fan, I have the certain joys of the start of the MLB baseball season, the Masters, and the start of the "real" season in the NBA and NHL; as a SCOTUS watcher, I have the uncertain joys of anticipating the Justices winding down its current Term by perhaps handing down some big criminal justice opinions or cert grants.  And just as the MLB season is off to something of a cold April start — e.g., it was 39 degrees for the very first pitch yesterday in Pittsbugh, and today's Yankees game has already been postponed — so too is SCOTUS keeping it cool in the criminal justice arena at the start of April.

Specifically, the Justices kicked off one of my favorite months with three little criminal justice developments:

  1. A cert grant in Pena-Rodriguez v. Colorado to consider "whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury";

  2. A per curiam opinion in Woods v. Etherton to summarily reverse on AEDPA defenence grounds a decision by the Sixth Circuit in favor of a state habeas petitioner;

  3. A unanimous opinion in Nichols v. US to hold that SORNA did not require a sex offender to update his registration in Kansas once he departed the State for the Phillipines. 

If I did not have to obssess over a number of other matters this morning (including whether I managed to acquire any fantasy baseball sleepers during my draft this past weekend), I might be able to find some sleeper SCOTUS story to discuss within these developments. But absent readers helping me identify something big in these seemingly little developments, I am likely to move on to other bloggy matters (such as continuing to speculate how Justice Scalia's untimely demise has been impacting the Court's work in criminal justice cases).

April 4, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Wednesday, March 30, 2016

Federal court to hear challenge to "scarlet passport" provision of International Megan’s Law

ImagesAs reported in this Wall Street Journal article, a constitutional challenge to a contoversial aspect of a law passed by Congress last month is schedule for a federal court hearing today in California. The article is headined "Law Creating Passport Mark for Sex Offenders Faces First Challenge: Lawsuit targets ‘unique identifier’ for passports of those convicted of sex crimes involving minors," and here are excerpts:

A new federal law requiring the State Department to mark the passports of certain convicted sex offenders is expected to face its first test in federal court on Wednesday. A group of convicted sex offenders has asked a federal judge in Oakland, Calif., to block the measure pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality.

The law, International Megan’s Law to Prevent Demand for Child Sex Trafficking, mandates the State Department to add a “unique identifier” to passports of Americans convicted of sex crimes involving minors and that U.S. officials to alert foreign governments when those Americans travel abroad.

The judge, Phyllis J. Hamilton, is scheduled to hear arguments on Wednesday on whether to suspend implementation of the passport mark and the notification requirement. The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional.

“For the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship,” says the lawsuit, filed on Feb. 8 in federal district court in Oakland, Calif.

The new law codifies a nearly decade-old program called Operation Angel Watch, which U.S. officials said has helped to curb child-sex tourism by alerting countries of sex offenders traveling to them. Supporters say the law will help countries with a lack of resources deal with child predators and encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S. “Knowledge is power in terms of protection,” said Rep. Chris Smith (R., N.J.), who sponsored the bill. Rep. Smith said the passport mark to be created by the State Department will help keep Americans covered by the law from concealing their destination by traveling to a foreign country by way of another to engage in sex tourism.

The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe.... Rep. Smith said he got the idea for International Megan’s Law during a meeting with a delegation of Thai officials about human-trafficking. He asked them what they would do if the U.S. alerted them when a registered offender was traveling to their country and “They said, ‘Well, we wouldn’t give them a visa,’ ” Mr. Smith recalled....

Janice Bellucci, a lawyer who represents the lawsuit’s plaintiffs, said she found few precedents for the passport identifier in her research. Among them: The Nazis confiscated Jewish passports and marked them with a “J,” and the internal passports in the Soviet Union singled out Jews by listing their ethnicity as Jewish, while other citizens were identified by their place of birth, she said.

Mr. Smith rejected the lawsuit’s comparisons and said California Reform Sex Offender Laws, a group Ms. Bellucci is president of, and others have long sought to weaken sex-offender laws. “U.S. law denies passports to delinquent taxpayers, deadbeat parents and drug smugglers,” the congressman wrote in a recent op-ed published in the Washington Post. “The law’s passport provision, however, does not go this far.”

International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to Ms. Bellucci. Nor does it exempt those who were minors at the time of their offense.

Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about 200,000 of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court. “This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.”

March 30, 2016 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Tuesday, March 22, 2016

Federal district judge interprets Nebraska law to preclude placing juve on its public sex offender list

As reported in this local article, a "federal judge has blocked Nebraska from putting a 13-year-old boy who moved here from Minnesota on its public list of sex offenders." Here is more about this notable ruling:

Senior U.S. District Judge Richard G. Kopf said if the boy had done in Nebraska exactly what he did in Minnesota he would not have been required to register as a sex offender "and he would not be stigmatized as such." "It therefore makes no sense to believe that the Nebraska statutes were intended to be more punitive to juveniles adjudicated out of state as compared to juveniles adjudicated in Nebraska," the judge wrote in a 20-page order.

In Nebraska, lawmakers opted to exclude juveniles from the Nebraska Sex Offender Registration Act unless they were prosecuted criminally in adult court, even though it meant losing thousands in federal funding. But the way the law is written made it appear that all sex offenders who move to Nebraska must register.

When the Minnesota boy in this case moved here to live with relatives, the Nebraska State Patrol determined he had to register because of a subsection of the law....

In this case, the boy was 11 when he was adjudicated for criminal sexual conduct in juvenile court in Minnesota. A judge there ordered him to complete probation, counseling and community service, and his name went on a part of that state's predatory offender list that is visible only to police. Even before that, the boy had moved to Nebraska to live with relatives.

In August 2014, the Nebraska probation office notified his family he was required to register under the Nebraska Sex Offender Registry Act or could be prosecuted. That same month, the boy's family filed a federal lawsuit seeking to block the patrol from putting him on Nebraska's registry, which is public.

In Monday's order, Kopf concluded that the boy wasn't required to register in Minnesota because he was adjudicated in a juvenile court, not convicted in adult court, so Nebraska's act doesn't apply. He cited Nebraska Juvenile Code, which specifically says juvenile court adjudications are not to be deemed convictions or subject to civil penalties that normally apply. An adjudication is a juvenile court process through which a judge determines if a juvenile committed a given act.

Kopf's order said it was apparent that the purpose was to identify people guilty of sex offenses and to publish information about them for the protection of the public. "It is equally apparent that the Nebraska Legislature has made a policy determination that information regarding juvenile adjudications is not to be made public, even though this has resulted in the loss of federal funding for non-compliance with (the federal Sex Offender Registration and Notification Act)," he said.

Late Monday afternoon, Omaha attorney Joshua Weir said the boy's grandmother was so excited when he called with the news she had to pull over in a parking lot. "They were very, very relieved," he said. Weir said the boy is a healthy, happy kid now and flourishing in school. "It would've been a tragedy if he would have been branded a sex offender," he said. "That's something that sticks with you for the rest of your life."

The state could choose to appeal the decision within the next 30 days. 

March 22, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, March 07, 2016

Extended discussion of sex offender registries as life sentences for juveniles

The new issue of The New Yorker has this very lengthy article authored by Sarah Stillman titled "The List: When juveniles are found guilty of sexual misconduct, the sex-offender registry can be a life sentence." I recommend the piece in full, and here are just a few snippets:

Kids who sexually harm other kids seldom target strangers.  A very small number have committed violent rapes. More typical is the crime for which Josh Gravens, of Abilene, Texas, was sent away, more than a decade ago, at the age of thirteen.  Gravens was twelve when his mother learned that he had inappropriately touched his eight-year-old sister on two occasions; she sought help from a Christian counselling center, and a staffer there was legally obliged to inform the police.  Gravens was arrested, placed on the public registry, and sent to juvenile detention for nearly four years.  Now, at twenty-nine, he’s become a leading figure in the movement to strike juveniles from the registry and to challenge broader restrictions that he believes are ineffectual.  He has counselled more than a hundred youths who are on public registries, some as young as nine.  He says that their experiences routinely mirror his own: “Homelessness; getting fired from jobs; taking jobs below minimum wage, with predatory employers; not being able to provide for your kids; losing your kids; relationship problems; deep inner problems connecting with people; deep depression and hopelessness; this fear of your own name; the terror of being Googled.”

Often, juvenile defendants aren’t seen as juveniles before the law.  At the age of thirteen, Moroni Nuttall was charged as an adult, in Montana, for sexual misconduct with relatives; after pleading guilty, he was sentenced to forty years in prison, thirty-six of which were suspended, and placed on a lifetime sex-offender registry.  In detention, the teen-ager was sexually assaulted and physically abused.  Upon his release, his mother, Heidi, went online in search of guidance. “I’m trying to be hopeful,” she wrote on an online bulletin board, but “I wonder if he even stands a chance.”

Last fall, she contacted a national group called Women Against Registry, joining the ranks of mothers who are calling into question what a previous group of parents, those of victimized children, fought hard to achieve.  Recently, common ground between the two groups has emerged.  Many politicians still won’t go near the issue, but a growing number of parents — along with legal advocates, scholars, and even law-enforcement officials — are beginning to ask whether the registry is truly serving the children whom it was designed to protect.

If the sex-offender registry is a modern development, the impulse behind it — to prevent crimes by keeping tabs on “bad actors” — is not.  In 1937, after the sexualized murders of several young girls in New York, Mayor Fiorello LaGuardia called for the police to keep a secret list of “all known degenerates.”  A decade later, California built the first database of sex offenders, for private use by the police. But the practice of regulation took off only in the nineteen-nineties, when a tragedy changed the public’s sense of the stakes involved.

March 7, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (10)

Thursday, March 03, 2016

Has the federal Adam Walsh Act been a success and should it be reauthorized?

The question in the title of this post is prompted by this recent press release coming from the office of Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, which is titled "Grassley Introduces Bill to Aid States, Public in Tracking Sex Offenders." Here is how it begins:

Senate Judiciary Committee Chairman Chuck Grassley today introduced legislation to assist states in preventing future abuses by registered sex offenders.  The Adam Walsh Child Protection and Safety Act Reauthorization helps to improve tracking of sex offenders through federal support of state registries and dedicated resources to target offenders who fail to comply with registration requirements.

“Preventing sex crimes, especially by known offenders, requires a team effort by law enforcement at every level. Congress has passed laws to promote a unified approach to sex offender registration and notification.  This bill will help to ensure that our state and local law enforcement officials continue to have the federal resources and assistance they need to successfully track offenders with a history of crimes against children,” Grassley said.

The Adam Walsh Child Protection and Safety Act of 2006 established nationwide notification and registration standards for convicted sex offenders to bolster information sharing between law enforcement agencies and increase public safety through greater awareness.  Grassley’s bill reauthorizes key programs in the 2006 act to help states meet the national standards and locate offenders who fail to properly register or periodically update their information as the law requires.

Specifically, Grassley’s bill reauthorizes the Sex Offender Management Assistance Program, a federal grant program that assists state and local law enforcement agencies in their efforts to improve sex offender registry systems and information sharing capabilities.  The bill also authorizes resources for the U.S. Marshals Service to aid state and local law enforcement in the location and apprehension of sex offenders who fail to comply with registration requirements.

The Adam Walsh Child Protection and Safety Act is named for a six-year-old Florida boy who was kidnapped and murdered in 1981.  Adam’s father, John Walsh, worked closely with Congress to develop the 2006 law and the reauthorization that was introduced today.  Cosponsors of the bill include senators Chuck Schumer (D-N.Y.), Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif.).

Candidly, I am not entirely sure what would be the best metrics for judging the "success" of the Adam Walsh Act, and perhaps that should be the question in the title of this post. So, dear readers, I would be eager to hear thoughts both on how we ought to assess the success of the AWA and also on whether it ought to be reauthorized.

March 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (14)

Tuesday, March 01, 2016

Has DOJ decided not to appeal Judge Weinstein's recent notable decision in US v. RV to give no prison time to child porn downloaded?

The question in the title of this post is a follow-up to my speculations here about the post-Booker challenges that face federal prosecutors when a district judge gives a very leinent sentence that they dislike.  Specifically, after blogging about US District Judge Jack Weinstein's decision in US v. RV to give a waaaaaaaay-below-guideline sentence in a child porn downloading case, I suggested the Justice Department would struggle with the decision whether to appeal this lenient sentencing ruling to the Second Circuit because of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines.

When I posted about US v. RV, my pal Bill Otis seemed to think my appellate speculations here were waaaaaaaay off the mark.  Over in this lengthy post at Crime & Consequences, Bill Otis asserted that my speculation revealed that I know "almost nothing about the workings of US Attorneys' Offices."   Bill went further even in this post, stating repeatedly that he would eagerly "bet $500 here and now that Weirstein [sic] is again going to get reversed in the Second Circuit, again without garnering a single vote."

I did not take up Bill's bet for a number of reasons: (1) I wanted to read Judge Weinstein's 90+ page sentencing opinion in full before speculating on the fate of the decision in RV, (2) based on what Judge Weinstein wrote, I might be inclined to participate in an amicus effort in the Second Circuit if/when DOJ appealed, and (3) I find it a bit unsavory (and perhaps unethical) to make big cash bets on the fate of a real legal case, especially in an area of law I hope to infuence.  But now, as the title of this post hints, I think it may turn out that a lot of us should have taken Bill's bet because it seems, based on my limited research skills, that DOJ has decided not to appeal Judge Weinstein's sentencing decision in RV.

Because I am bad at researching appellate dockets, and also because the process for when and how the Justice Department makes appellate decisions is quite opaque in various ways, I do not yet want to crow about being right here that DOJ did not want to appeal this decision and risk its affirmance by the Second Circuit.  But I am hoping, perhaps with the help of readers, I can soon confirm that the Second Circuit will not be reversing RV because federal prosecutors have decided not to appeal the decision. (Needless to say, I am somewhat excited about the possibility of demonstrating that I now actually do know a lot more than Bill Otis "about the workings of US Attorneys' Offices" even though I have never worked in such an office and Bill spent most of his professional life in these offices.)  If it does turn out true that DOJ has decided not to appeal in US v. RV, I think this discretionary prosecutorial decision is itself a very interesting and important bit of evidence concerning how post-Booker reasonableness review works (and doesn't work) to iron out sentencing disparties in CP downloading cases and many others.

Prior related posts about recent notable CP cases from the EDNY:

March 1, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision

The first official SCOTUS opinion handed down without Justice Scalia as a member of the Supreme Court in three decades just happened to be an intriguing little sentencing opinion: Lockhart v. US, No. 14-8358 (S. Ct. March 1, 2016) (available here). Justice Sotomayor wrote the opinion for the Court on behalf of six Justices, and it begins this way:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2).

The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”).  Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.”  The Eighth Circuit has reached the contrary result.  We granted certiorari to resolve that split.  575 U. S. ___ (2015).  We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.”

Justice Kagan, joined by Justice Breyer, writes an extended dissent that kicks off with pop-culture references sure to be highlighted by many in social media:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast — not an actor in, for example, the latest Zoolander.  Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.”  Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?  And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.”  Surely a person would have cause to protest if punished under that provision for violating a traffic statute.  The reason in all three cases is the same: Everyone understands that the modifying phrase — “involved with the new Star Wars movie,” “in New York,” “relating to insider trading” — applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case.  Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2).  The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list.  But properly read, the modifier applies to each of the terms — just as in the examples above.  That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children.  And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty.  I respectfully dissent.

I am going to resist the urge to speculate concerning which opinion Justice Scalia might have been likely to join were he still alive today, especially given that the late, great Justice was a fan of ordinary understanding and the rule of lenity, but not a fan of legislative history, in the interpretation of federal criminal statute.  I am also going to resist blogging a lot more about this case unless something jumps out as distinctly blogworthy when I have a chance to review the opinions more closely in the days ahead.

March 1, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Friday, February 12, 2016

Another federal child porn downloader gets another non-prison sentence in the EDNY

A helpful readers alerted me to this notable Newsday report concerning a notable federal sentencing this morning in the Eastern District of New York headlined "Ex-police investigator gets home detention for child porn." Here are the details:

A former investigator with the New York State Police stationed on Long Island was sentenced to 9 months of home detention Friday in a child porn case.  Sean Michael Pagano of Mount Sinai could have been sentenced to between 46 months to 57 months in prison under federal sentencing guidelines after he pleaded guilty to one count of accessing child pornography.

Pagano, at the time stationed at Troop L in East Farmingdale, was arrested in April by FBI agents after he was accused of accessing a website in Alaska and downloading child pornography.  The arrests came after agents raided a house in Anchorage that served as a base for the distribution of child pornography and took over the site, collecting information on who was involved in the site.

“I take full responsibility for my actions,” Pagano said Friday, tearing up as he spoke in Central Islip federal court.  “I am sorry. . . . Helping people was my main goal in life.”

Before sentencing Pagano, U.S. District Judge Arthur Spatt said he was balancing the “seriousness” of the crime with his otherwise “outstanding” career. There is “certainly no danger to society or anyone and he is probably truly remorseful,” Spatt said.

Eastern District Assistant U.S. Attorney Allen Bode had asked for a significant sentence, noting that Pagano, as a state trooper, had gone along on raids involving child pornography with FBI agents on Long Island who normally deal with such cases.  Bode said as a result of Pagano’s relationship with agents on Long Island FBI agents from the city had to work on the case.

Before sentencing, Pagano’s attorney Joseph Conway of Mineola described his client as having a distinguished career in the Marine Corps and with the State Police. Pagano has since resigned from the State Police. His position was the equivalent of being a detective....

At the time of his arrest, Pagano claimed he was investigating child pornography. But State Police officials said that that was not correct and he had been assigned to investigating narcotics.

Though I am disinclined to assert that there is a full judicial revolt with respect to the federal sentencing of child pornography offenders in the Eastern District of New York, I do think it quite notable and significant that this is the third significant report of a federal judge in EDNY refusing to accede to the arguments by federal prosecutors that a downloader of child pornography has to be imprisoned (prior coverage here and here and linked below).

Notably, in the course of this discussion at Crime & Consequences in the wake of Judge Jack Weinstein's recent similar sentencing ruling in US v. RV (discussed here), Bill Otis stated his view that there are "very, very few CP cases that actually reach indictment in which a zero [prison] sentence would be acceptable."  Though I am not sure I completely agree with that sentiment, I do find the imposition of only home confinement in this case especially notable (and perhaps distinctly questionable) because the defendant here was, according to this press article, a "state trooper [who] had gone along on raids involving child pornography with FBI agents on Long Island,"  and when arrested "Pagano claimed he was investigating child pornography."  In other words, it appears that the CP downloader here had a unique position of trust AND aggravated his crime by obstructing justice when he was first caught.  Those aggravating factors lead me to wonder think federal prosecutors might be uniquely eager to appeal this case to the Second Circuit, though I would need to know a lot more about the extent and nature of the child porn downloaded by Pagano before making any predictions about whether such an appeal might prevail.

Recent related posts about child porn sentencing in EDNY:

February 12, 2016 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, February 09, 2016

Prez Obama signs into law the "International Megan's Law," and group immediately files suit against passport scarlet letter requirement

As reported in this AP piece, headlined "Sex offenders challenge new federal passports law," over the last 24 hours President Obama signed a somewhat controversial federal sex offender law and a group has filed suit to block part of its mandates. Here are the basics:

A civil rights group has filed a lawsuit challenging a law that will require sex offenders to be identified on their passports.

President Obama signed the International Megan's Law bill into law on Monday following Congress passing the bill last week. The California Reform Sex Offender Laws filed the lawsuit in U.S. District Court in San Francisco, challenging the laws, which requires the Secretary of State to add "unique identifiers" to the passports of all registered sex offenders.

Passports today are used as a primary form of identification as well for entry into a foreign country. A passport symbol that identifies an individual as a registered sex offender could place at significant risk that person as well as others traveling with them, including family members and business colleagues, the lawsuit says.

This page on the site of the California Reform Sex Offender Laws organization provides these additional details about the suit:

The lawsuit will be filed in U.S. District Court, San Francisco, on behalf of four registered citizens. The lawsuit alleges that International Megan’s Law violates several provisions in the U.S. Constitution including the First, Fifth and Fourteenth Amendment, as well as the equal protection and ex facto clauses. Subsequent to filing of the lawsuit, an application for a Preliminary Injunction will be filed which, if granted, would stop the law from being implemented. 

A helpful reader emailed me a copy of the 27-page complaint in this case, and I have provided it for downloading here:  Download Complaint filed against IML Feb 2016

February 9, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18)

Monday, February 08, 2016

Notable battles in Texas over local sex offender residency restrictions in small towns

A helpful reader alerted me to this interesting new AP article headlined "More Than 20 Texas Town Repeal Sex Offender Residency Law," which reports that a "broad legal challenge has led more than 20 towns in Texas to ease restrictions over the last few months on where sex offenders can live instead of fight a costly battle in court." Here is more:

While other states, including neighboring Oklahoma, continue to push offenders away from some neighborhoods, about 45 Texas towns received letters in November from the group Texas Voices for Reason and Justice demanding they repeal residency restrictions. The nonprofit, which is critical of sex offender laws it considers ineffective, also has sued 14 towns and has a powerful ally — the state attorney general's office. "We advocate an individual assessment on a case-by-case basis to determine if someone is a threat to the community," said Richard Gladden, an attorney for the group. "The myth that people who commit sex offenses just generally are unable to control their sexual conduct is just that, a myth."

At issue is how Texas' small towns are differentiated from larger ones. Communities with fewer than 5,000 people are "general law" towns, which can't adopt an ordinance that the Legislature hasn't permitted. Dozens of these smaller communities have restricted where sex offenders can live — usually with the purpose of keeping them away from schools and other places children gather — but only later learned they've run afoul of state rules. "Unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live," according to a 2007 opinion signed by then-AG Greg Abbott, who's now Texas governor. Larger cities fall under "home rule," which means they have "a constitutional right of self-government," Abbott wrote.

But the Texas Municipal League, which provides support services and lobbies on behalf of cities, is pushing for legislative action that reverses Abbott's decision. "It's new where a general-law city has had its authority taken away by an attorney general's opinion," executive director Bennett Sandlin said.

The state allows leaders in general law towns to fashion municipal rules for "the good government, peace or order of the municipality," Sandlin said, such as zoning and noise control laws. But state officials can step in when local laws overreach....

Krum Mayor Ronald Harris Jr. said litigation prevents him from talking about whether his town will repeal its law, but he criticized the Legislature for not acting on behalf of small-town Texas. "They're saying that we as a small town don't have a right to have an ordinance to protect our children and our residents, but larger towns do," Harris said.

The city manager of Alvarado, which is south of Fort Worth, has told WFAA-TV in Dallas that although residents expressed concern about repealing the law, they know valuable town money could evaporate under the weight of a lawsuit. "They're disappointed that we're not able to regulate our own town," said Clint Davis, who did not respond to a message left by The Associated Press for comment....

Gladden argues myriad laws aren't necessarily benefiting public safety. In many cases, he said, an innocent "Romeo and Juliet relationship" can result in a young man being prosecuted for having sex with a minor and labeled a sex offender for the rest of his life.  Meanwhile, federal statistics show the overwhelming number of sex abuse cases involving children are perpetrated by a family member or friend of the family, and not an anonymous stranger, he said.  "Obviously, people are concerned about their kids and sometimes people are so overwhelmed by their natural instinct to protect their children that they don't necessarily use their heads and see what works and doesn't work," Gladden said.

But Sandlin argues the residency restrictions are common-sense measures to protect children and don't amount to an unwarranted hardship, as some would claim, because Census data shows more than 90 percent of land in Texas is outside incorporated cities. "Cities are dense urban areas where it makes sense to regulate where sex offenders live," Sandlin said.

I have long considered political and legal disputes over local sex offender residency restrictions to be among the most interesting and dynamic criminal justice arenas for debating what might be called "local federalism."  But I am not aware of any other state in which certain localities were allowed to enact sex offender residency restrictions and others were not, and I suppose this story is just still further proof that Texas often has its own unique approach to justice.

February 8, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws

A helpful reader alerted me to this notable new New York Daily News report about another notable effort by a notable federal district judge in the Eastern District of New York expressing his disinclination to punish a child porn downloader as severely as federal prosecutors seem to want.  The article is headlined "Queens man charged with receiving 50,000 kiddie porn images can have unsupervised contact with his children," and here are excerpts:

A federal judge pooh-poohed the concerns of law enforcement officials, ruling that a Queens man charged with receiving nearly 50,000 kiddie porn images on the “dark Web” can have unsupervised contact with his two young children, the Daily News has learned.

“It comes down to money,” Judge Frederic Block explained in Brooklyn Federal Court last week. “It’s a financial burden on the family if they have to hire people to sit there and watch them.  I don’t see his children at risk.”

Both the Brooklyn U.S. attorney’s office and the pretrial services office of the Eastern District of New York disagreed, arguing that Naray Palaniappan, a computer consultant, should not be alone in his Jackson Heights home with his children, ages 2 and 4.  The federal Adam Walsh Child Protection and Safety Act routinely requires, as a condition of bail, that defendants in Palaniappan’s situation be accompanied by a monitor in the presence of children.

Palaniappan, 39, was nabbed last year in a nationwide FBI investigation of online pervs who troll a hidden region of the Internet, known as the dark Web, which is not accessible through conventional search engines.  Palaniappan, who investigators linked with the user name “JiminyCracket,” allegedly received a massive trove of child pornography that included videos of young girls being raped by adult men.

Assistant U.S. Attorney David Gopstein advised the judge that Palaniappan failed a lie detector test, administered by the FBI, in which he was asked if he had sexual contact with minors.  He has yet to complete a voluntary parenting program administered by the city, which could have bolstered his case that he isn’t a danger.  “There are troubling issues and we are talking about children,” Gopstein argued.

But Block, unmoved, lifted the restriction two weeks ago. On Thursday, Block brought Palaniappan and his wife into court for an update. “I assume he hasn’t molested his children since we last left,” Block said.  Palaniappan’s wife told the judge she didn’t object to leaving their kids alone with him.

The judge also blew up when a prosecutor told him that Palaniappan had been offered a plea deal that calls for a mandatory five-year sentence. “You think this man should be in jail for five years?” Block asked three times.... Block threatened to have Palaniappan’s case transferred to Federal Judge Jack Weinstein, who has openly challenged mandatory tough sentences in some child pornography cases.  It was unclear whether he was serious.

Defense lawyer Zachary Margulis-Ohnuma told The News that Block’s decision is well-reasoned and based on several reports, all positive, by the family service agencies overseeing Palaniappan’s case.

The way in which Judge Block handled this pre-trial issue of supervision leads me to think, ironically, that federal prosecutors are now almost certain to demand that this defendant plead guilty to a child porn receipt charge which carries a five-year mandatory minimum rather than to allow him only to plead to a CP possession charge which carries no mandatory minimum. Clearly, Judge Block does not view this defendant as a threat in the same way federal prosecutors do, and that suggests to me federal prosecutors will use the tools they have at their disposal to try to legally preclude Judge Block or others from showing leniency to this defendant.

Especially in the wake of Judge Jack Weinstein's recent notable sentencing ruling in US v. RV (discussed here), I am starting to sense there may be something of a sentencing turf war starting to emerge in Eastern District in these kinds of child porn cases.  For that reason and others, I would now not be surprised if the EDNY federal prosecutors are going to be even less inclined to cut any child porn defendants any kind of breaks in the plea process in all current and future cases.

February 8, 2016 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, February 03, 2016

"Do sex offenders deserve a scarlet letter on their passport?"

The question in the title of this post is the headline of this Los Angeles Times editorial.  Here is how it starts:

After rousing themselves from the 30-plus-year bad trip that was the war on drugs — or rather, the war on drug users — many Americans in and out of elected office looked around for someone else to persecute.  Someone, somewhere, must be so depraved and hateful that liberals and conservatives, Democrats and Republicans could join in common cause to vilify them.

They appear to have found their target: sex offenders.  The current case in point is a congressional proposal to alert the nations of the world that particular U.S. citizens who have committed sex offenses against minors are planning to visit.  Passports would be specially marked so that other countries could turn travelers away at the border because of old crimes for which they have already served their time in the U.S.

This vindictive bill has been wisely rejected numerous times in the past, but now it's heading to President Obama's desk.  He should veto it.

Sex offenses against minors are particularly horrendous crimes.  But when offenders have completed their sentences and periods of supervision, there is no more reason to continue hounding and harassing them than convicted murderers or drug traffickers, who don't bear scarlet letters on their passports.

But wait, some supporters argue, people who commit sex crimes against children are a special case.  As soon as they've done it once, they'll want more, posing imminent danger to any underage person anywhere.  Their front doors should be marked to warn trick-or-treaters.  They should be banned from park benches.

This blatantly false argument thrives on ignorance.  There are indeed mentally disordered sex offenders whose conditions make them extremely high risks to commit more crimes of the same variety.  Some may target minors.  But that is far different from saying that anyone convicted of a sex offense against a minor falls into that very narrow category.  Corrections officials in California report that most sexual crimes committed by adults against minors occur among family members, and that the rate of recidivism is fairly low.

Prior related post:

February 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (29)

Tuesday, February 02, 2016

"International Megan's Law" heading now to Prez Obama's desk

As reported in this dispatch from The Hill, the US House of Representatives "easily cleared legislation on Monday to expand efforts within the Department of Homeland Security to track registered child sex offenders’ travel plans as a means of combatting human trafficking."  Here is more about a bill often called an international Megans Law:

The measure, passed by voice vote, would codify the Department of Homeland Security’s (DHS) “Operation Angel Watch” program that determines whether countries should be notified of sex offenders’ travel.  Under the legislation, sex offenders would be required to report to law enforcement when they plan to travel internationally.  Sex offenders who fail to comply would face up to ten years in prison.

In addition, the State Department will be obligated to create a unique identifier for child sex offenders’ passports.  Lawmakers said the provisions would help prevent sex offenders from trying to break the law undetected.  “Child predators thrive on secrecy,” said Rep. Chris Smith (R-N.J.), the bill’s author.

The House previously passed a version of the bill last January, and the Senate later approved it with amendments by unanimous consent in December.  Congress last year approved legislation to create a fund for victims of sex trafficking and give prioritize states for federal grants if they establish “safe harbor” laws for child victims of trafficking.

Last month here at The Volokh Conspirary, David Post expressed concerns about this legislation. The title of the post reveals the basic nature of his concerns: "The yellow star, the scarlet letter, and ‘International Megan’s Law’."  The Marshall Project has this new piece echoing similar themes under the headline "Congress Acts to Mark Passports of Sex Offenders: Target of legislation is sex-traffickers; critics call it a ‘scarlet letter’."

February 2, 2016 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (13)

Monday, February 01, 2016

Seventh Circuit panel upholds Wisconsin's lifetime GPS monitoring for certain sex offenders against various constitutional complaints

As reported in this local Wisconsin article, headlined "Court upholds GPS tracking of sex offender convicted before law passed," a Seventh Circuit panel late last week reversed a district judge's determination that a Wisconsin law requiring lifetime GPS tracking of certain sex offenders was constitutionally problematic. Here are the basics from the start of the news report:

Making a Wisconsin sex offender wear a GPS anklet for life, when he was convicted before that was the law, does not violate the constitutional prohibition against retroactive punishment, a federal appeals court has ruled.  A three-judge panel of the 7th U.S. Circuit Court of Appeals on Friday reversed a Green Bay federal judge who found the lifetime tracking improper for 72-year-old Michael Belleau.  The case had been argued before the court earlier this month.

In 2012, two years after Department of Corrections officials affixed an ankle bracelet on him after his discharge from civil commitment, Belleau sued, claiming the practice amounted to an ex post facto law, banned by the Constitution, as well as unreasonable search and seizure without a warrant.

In September, Chief U.S. District Judge William Griesbach agreed, saying Belleau had served his sentences and couldn't be punished further just because the state now thinks the original sentence was too lenient.  "Nor may the state force Belleau to wear a GPS tracking device around his ankle so that it can record his movement minute-by-minute for the rest of his life because it believes he might commit another crime in the future," Griesbach wrote. "The state's authority over the individual is not unlimited."

But Judge Richard Posner agreed with the state's position that the GPS monitoring is merely regulatory, not punitive, and doesn't limit where Belleau can go, like someone on probation.  Posner also agreed that it's not an illegal retroactive law because the monitoring was triggered by Belleau's discharge from civil commitment in 2010, after the GPS law took effect in 2006, not his earlier criminal convictions.  "So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor."

The full ruling in Belleau v. Wall, No. 15-3225 (7th Cir. Jan. 29, 2016), which rejects both a Fourth Amendment claim and an ex post facto claim lodged by the sex offender to the lifetime GPS requirement, is available at this link.

February 1, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (8)

Saturday, January 30, 2016

Judge Jack Weinstein disregards severe federal child porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23)

Saturday, January 23, 2016

New Jersey appeals court upholds parole board's monitoring of sex offenders using lie detector machines

As reported in this local article from New Jersey, a local "appeals court on Thursday upheld the state Parole Board's use of polygraph tests to monitor sex offenders after their release from prison." Here is more about the extended ruling:

The panel of state judges largely rejected the argument of five sex offenders sentenced to lifetime supervision that the tests amounted to coerced interrogations that violated their constitutional rights.  The court found, however, that the board must take steps to protect the offenders' right against self-incrimination and that the test results alone could not be used to justify punishment.

Under state law, all sex offenders sentenced to lifetime monitoring can be subjected to the examinations, popularly referred to as "lie detector" tests.  The tests are used to help parole officers determine whether the offenders are adhering to treatment plans and the terms of their parole.  But critics point out that the tests can be unreliable, and their results aren't allowed to be used as evidence in most criminal cases.

Currently, there are 7,469 offenders being monitored by the state that could be subject to polygraph tests.  Samuel J. Plumeri, Jr., the vice chairman of the New Jersey State Parole Board, said in an e-mail the use of the tests was "dependent upon an assessment" of each offender's case....

A 2009 Parole Board report on the use of polygraph tests described them as "an essential tool" for monitoring sex offenders.  The technology, the report found, "appears to encourage honesty with parole officers and treatment providers" and prevent convicts from re-offending.

But Michael C. Woyce, an attorney for the five sex offenders — whom the court identified only by their initials — argued the tests were unconstitutional because the subjects weren't permitted to have an attorney present, weren't read their Miranda rights and could face sanctions by refusing to answer "intrusive" questions.  The Public Defender's Office, which also argued in the case, also called the tests both "unfair" and "extremely unreliable."

Woyce said the technology has largely fallen out of favor in criminal courts, but persists in the monitoring of sex offenders because of the stigma attached to their crimes.  "Being labeled a sex offender is a scarlet letter," Woyce said. "Because of that, the courts often — not always, but often — treat them differently."  Woyce said offenders who do not cooperate or perform poorly on the tests can have their access to the internet revoked, be prohibited from traveling out of state, or be subject to GPS monitoring without due process.

The court rejected the sex offenders' argument that they were entitled to have an attorney present during the tests under the Sixth Amendment, finding they were not the same as a criminal interrogation.  "The subject can face later consequences if he chooses to leave before the examination is completed but, unlike an arrestee at a police station, he is not subject to immediate confinement if he refuses to cooperate," the judges wrote.

But recognizing that New Jersey courts consider polygraph test results "unreliable proof," the 72-page ruling prohibits parole officers from using them "as evidence to justify a curtailment of an offender's activities."  If in the course of a polygraph an offender admits any wrongdoing, that could be used against them, however, and the court ordered the board to adopt "regulations and practices to protect the offenders' privileges against self-incrimination."

The full ruling in JB v. New Jersey State Parole Board, No. A-5435-10T2 (NJ App. Jan. 21, 2016), is available at this link.

January 23, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (10)

Friday, January 08, 2016

"Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response"

The title of this post is the title of this notable paper authored by Paul Cassell and James Marsh now available via SSRN. Here is the abstract:

In this article, we have reviewed the legal issues surrounding restitution for child pornography victims.  In our view, the Supreme Court’s Paroline decision failed to fully implement the congressional mandate that victims receive restitution for the “full amount” of their losses.  Congress should move swiftly to ensure full restitution for child pornography victims by enacting the proposed Amy and Vicky Act — a more rational scheme for awarding restitution.

After the Supreme Court's Paroline ruling in April 2014, a number of reasonable folks reasonably predicted that Congress could and would move quickly to pass legislation to remedy the victim-oriented concerns stressed in this article. But, now nearly two years later, "Paroline fix" legislation seems stuck in Congress while victims like Amy and Vicky and others wait and wait for statutory reforms that, in the words of this article, would create "a more rational scheme for awarding restitution."

January 8, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, January 02, 2016

"Throwaway Children: The Tragic Consequences of a False Narrative"

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

Truth be told, we are afraid for our children and we are afraid of our children.  The intersection of these disparate thoughts has produced a perfect storm.  We have created increasingly harsh sex offender registration schemes to protect our children from sexual abuse.  At the same time, fear of our children ensnares and punishes them under the very same laws that were designed to protect them.  Yet, what compels action is premised on a false narrative that includes flawed studies on recidivism rates and misguided case decisions that embraced these findings.

In this article, I explore the inherently unfair and deeply flawed practice of mandatory lifetime registration for children who commit sex offenses.  Examination reveals two fallacies in a system that condemns children to lifetime monitoring: the breadth of its ensnarement, and the presumption of a child’s continued sexual predatory behavior. Fueled by emotional rhetoric, both are tightly bound in a fundamentally false narrative that is unnecessary and wholly damaging for the child registrant.

The utility of an overly-simplified registration scheme comes with a hefty price tag: the acknowledgement that mandatory lifetime registration captures and shatters the lives of many non-dangerous children.  It is a price tag we should no longer be willing to bear.  In the face of overwhelming statistical evidence to the contrary, we must commit to changing the false narrative that children who commit sex offenses are presumed to become sexually dangerous adults.  We must commit to replacing it with a narrative that acknowledges that recidivism rates are low and that mandatory lifetime registration is both unnecessary and devastating.

January 2, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Wednesday, December 30, 2015

How can a sex offender prove he is no longer a threat ... three decades after molesting a child?

The question in the title of this post is prompted by this local article about a state court ruling from New Hampshire headlined "Judge rules convicted sex offender must remain on registry until he can prove he is no longer a threat." Here is the interesting backstory:

A Manchester sex offender convicted 28 years ago will remain a lifetime registrant unless and until he proves he is no longer a threat, which, at least for now, he can ask to do at any time, a judge in Concord has ruled.  The decision, issued last week and distributed Monday by Merrimack County Superior Court, caps the latest phase in a years-long campaign by the man, identified by the court under the pseudonym John Doe, to become eligible for public housing.

Doe’s real name is Norman St.  Hilaire. He has long pressed to be removed from the state’s public registry of sex offenders, arguing that his conviction predated its creation.  More recently, though, he asked the court to table that question and instead recognize that a recent state Supreme Court decision effectively lifts his lifetime status -- a smaller change, but one that could be enough to secure him housing eligibility.

In his new ruling, Judge Richard McNamara quickly rejected the request, writing that the higher court’s decision allows St. Hilaire to change his status only if and when he proves he is no longer a threat.  “If he never succeeds in showing that he is not a danger to the public, he must continue to register,” McNamara wrote.  “It follows that the only accurate way to describe his status at the current time is that of a lifetime registrant.”

St. Hilaire is currently a Tier III “lifetime” offender, the state’s highest sex offender category.  His attorneys had claimed he should no longer be classified as such because he now has the chance to petition to get off the registry, a privilege unavailable to Tier III offenders convicted after the registry’s creation in the early 1990s.  Tier III offenders convicted today have no opportunities to get off the list.

St. Hilaire’s case was scheduled for an evidentiary hearing in November, but he backed out shortly before, citing his victim’s request to testify.  She and victims advocates suspect he was worried she would easily derail the effort by describing the abuse and possibly disclosing new allegations (though the statute of limitations on new charges involving her has passed).

McNamara’s ruling was only a partial win for state prosecutors, who not only objected to St. Hilaire’s petition but also asked that he be barred from bringing another request for five years.  Like the Supreme Court, McNamara deferred to the Legislature on that question, saying it’s their responsibility to set parameters for how frequent the reviews should be.

Several state lawmakers are proposing new parameters, and hearings on their legislation, sponsored by Republican Senate Majority Leader Jeb Bradley and two dozen others, are expected to begin next month.  The bill prohibits offenders from getting off the list if they have been convicted of serious crimes since their original convictions. Among other things, it also requires that victims get the chance to address the court, and that offenders whose petitions have been denied wait five years before petitioning again.

Amanda Grady Sexton, director of public policy for the New Hampshire Coalition Against Domestic and Sexual Violence, said the proposed language mirrors the requirements in place for lower tiered offenders who want to be removed from the registry. Sexton called McNamara’s ruling “a big win for victims.”...

In arguing earlier this month for the five-year ban, Assistant Attorney General Dianne Martin said the victim, now in her 40s and living out of state, “had to go through preparation for this case, and she had to relive all the events that she suffered as a child.” She should not have to constantly wonder if and when St. Hilaire will bring another petition, Martin said.

Chapman countered that St. Hilaire, who is 66 and has physical disabilities, had no plans to request a hearing, but hoped to reserve the right to do so in case his physical condition deteriorates further.  St. Hilaire has not been present for the court proceedings. He was arrested last month and charged with failure to register, a felony.  Police have said he created a Facebook account but never reported it, as required. He is out on bail and was scheduled for an arraignment at the end of this month.

St. Hilaire was convicted three decades ago of molesting the woman when she was a young teen in Hooksett, once in 1983 at Lambert Park and again the next year at their home, where the woman’s mother and three other children also lived. He was placed on probation and ordered to attend sex offender counseling, which he did weekly for two years. In an interview last month, the victim said the abuse was far more pervasive than the convictions reflected.  She said St. Hilaire sexually abused her numerous times over a decade, starting as a toddler and continuing into adolescence. 

December 30, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (11)

Thursday, December 24, 2015

"Child Pornography Sentencing in the Sixth Circuit"

The title of this post is the title of this notable new papaer by Carissa Byrne Hessick now available via SSRN. Here is the abstract:

This Symposium Essay explores and analyzes the Sixth Circuit’s approach to child pornography sentencing.  It critiques the Sixth Circuit’s decision to apply heightened scrutiny to below-Guideline sentences for child pornography possession.  In addition to presenting a critique of the Sixth Circuit’s cases, the Essay also provides guidance for defense attorneys seeking a below-Guidelines sentence.  It notes that there are particular strategies those attorneys should follow in order to secure not only a more lenient sentence from a district court judge, but also a sentence that is more likely to be upheld by the Sixth Circuit on appeal.

During the course of this discussion, the Essay identifies and criticizes three significant features of the Sixth Circuit’s cases in this area.  First, it notes that the Sixth Circuit is the only circuit to have adopted heightened appellate review of below-Guideline sentences for child pornography possession.  Second, it explains that the Sixth Circuit appears to be developing a common law of sentencing in child pornography cases; such a common law is contrary to the language and the logic of the Supreme Court’s Sixth Amendment sentencing cases.  Finally, it explains that the Sixth circuit has failed to give appropriate deference to district court decisions to sentence below the Guidelines based on facts and circumstances of particular cases.

December 24, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, December 20, 2015

Michigan Supreme Court takes up punishing questions about lifetime sex offender registration

As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago."  Here is more about the case and context:

The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.

In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”

The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.

The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:

The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.

The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)

Sunday, December 13, 2015

Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification

A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification.  Here is how the opinion starts:

We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.  The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense.  In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence.  In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights.  We agree.  For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.

December 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, December 09, 2015

Jared Fogle's partner in sex crimes scheduled for sentencing

This Indianapolis Star article, headlined "Russell Taylor turns on Jared Fogle as he awaits sentencing," reports at length on the sad sorted backstory for this week's federal sentencing of the crime partner of a high-profile federal sex offender. Here is how the extended article gets started:

Russell Taylor and Jared Fogle had much different backgrounds, but their lives became intertwined to the point that people started calling them "an old married couple." Fogle was sent to prison last month for more than 15 years on child pornography charges, and Taylor will stand before the same federal judge Thursday to learn his fate.

While degrees of depravity for child pornographers might be hard to accept, the man leading the prosecution used his toughest designation on Taylor. "In every respect, he's a monster," Assistant U.S. Attorney Steven DeBrota said at Fogle's sentencing. But, DeBrota added, Taylor is a monster Fogle helped create.

The sentencing in U.S. District Court for the Southern District of Indiana marks the end of a shocking Hoosier child pornography case that attracted international attention because of Fogle, the former Subway sandwich pitchman.

Taylor, who headed Fogle’s charitable foundation from 2009 until his arrest in April, has agreed to plead guilty to 12 counts of producing child pornography and one of distributing. The production charges involve images of a dozen children between the ages of 9 and 16, including family members, that Taylor secretly recorded in his home and then shared with Fogle.

As part of a plea deal, prosecutors are asking for a sentence of 35 years, while Taylor’s attorneys want a prison term of 15 to 23 years. Taylor has been in jail since his arrest. The length of Taylor’s sentence will be decided by Judge Tanya Walton Pratt, who is not bound by terms of the plea agreement.

Under federal law, Taylor faces a minimum sentence of 15 years. The maximum is 380 years if Pratt issues the longest sentence on all counts — 30 years for each count of production, 20 years on the distribution count — and orders them to be served consecutively, not concurrently.

The sentencing will close the door on the criminal case. Yet questions will linger, including why nobody, especially Taylor's wife, knew or intervened until an Indianapolis woman alerted police in September 2014 to Taylor's interest in child pornography and bestiality.

The facade of Fogle and Taylor promoting healthy lifestyles and helping young people came crashing down months later, revealing two married fathers who sought out strippers and prostitutes, drank heavily and dove into the seamy world of child pornography with virtually no level of depravity too taboo. They were, literally, partners in crime.

The prospect of growing old in federal prison, however, brought an acrimonious end to what Taylor described as a “12-year run” in which he and Fogle lived the high life, traveling the world and meeting celebrities — while carrying on debauched double lives. Since their arrests earlier this year, Taylor and Fogle have turned on each other, admitting their own guilt but attempting to minimize their roles and cast the other as more reprehensible.

The rise and fall of the men is detailed in hundreds of pages of court records from the two criminal cases. How much of their stories are true is hard to tell. Both men were desperately maneuvering to avoid long prison sentences when they submitted their version of the facts to the judge.

December 9, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (0)