Sunday, August 20, 2017

Is it important to have laws barring sex offenders from living anywhere near their victims?

The question in the title of this post is prompted by this new AP piece headlined "Sex offenders can live next door to victims in many states." Here are excerpts:

A convicted sex offender who molested his niece when she was 7 years old moved in next door to his victim nearly a dozen years after he was sent to prison for the crime. Outraged, the Oklahoma woman, now 21, called lawmakers, the police and advocacy groups to plead with them to take action.  Danyelle Dyer soon discovered that what Harold Dwayne English did in June is perfectly legal in the state — as well as in 44 others that don't specifically bar sex offenders from living near their victims, according to the National Conference of State Legislatures.

"I always felt safe in my home, but it made me feel like I couldn't go home, I couldn't have my safe space anymore," Dyer told The Associated Press, which typically doesn't identify victims of sexual assault, but is doing so in Dyer's case because she agreed to allow her named to be used in hopes of drawing attention to the issue.  "He would mow in between our houses.  Him moving in brought back a lot of those feelings."

Advocacy groups say the Oklahoma case appears to be among the first in the U.S. where a sex offender has exploited the loophole, which helps explain why dozens of other states have unknowingly allowed it to exist. "This is something that I would dare say was never envisioned would happen," said Richard Barajas, a retired Texas judge and executive director of the nonprofit National Organization for Victim Assistance.  "In all the years that I've been involved with the criminal justice system, I've never seen a case like this."

Alabama, Arkansas, Indiana, Tennessee and West Virginia have laws dictating how far away sex offenders must stay from their victims — 1,000 feet in Tennessee, for example, and 2,000 feet in Arkansas. Other states haven't addressed the issue, though like Oklahoma they have laws prohibiting sex offenders from living within a certain distance of a church, school, day care, park or other facility where children are present.

"You assume it can't happen and then realize there is no provision preventing it from happening," said one Oklahoma prosecutor, Rogers County District Attorney Matt Ballard, whose agency is responsible for keeping tabs on sex offenders in his area. "To have even the possibility of an offender living next to the victim is extremely troubling."

Arkansas passed its provision in 2007. State Sen. Jeremy Hutchinson, a former prosecutor, said lawmakers drafted the provision out of "common sense," not as a response to a situation like Dyer's. But Barajas, whose group discussed the loophole with attendees at its annual training event this past week, said support for such laws typically gain traction "when someone who was impacted steps up," like Dyer. "Legislation is never created in a vacuum," he said.

Oklahoma lawmakers have now drafted legislation to close the loophole, using Dyer as their champion.  "Of the 70,000 square miles in Oklahoma, this individual happened to choose a place next door to the victim," said state Rep. Kyle Hilbert, who represents Dyer's mostly rural district and is sponsoring the legislation....

Advocacy groups said most legislatures across the U.S. would be able to close the loophole in their laws relatively easily, and said such measures typically receive strong backing from victims, clergy, parents and police.  "I don't see any legal reason why those statutes cannot be amended to ensure that the actual victims are protected; it's no different than prohibiting sex offenders from living 1,000 feet from a church or school," Barajas said. "It's not that the legislation (already on the books) is anti-victim, it's just that we have lacked the voice. We certainly have a megaphone, but when you talk about victims of (sexual abuse), you can't have a megaphone big enough."

Dyer, who is attending the University of Central Oklahoma in the Oklahoma City suburb of Edmond, said she hopes her story will help other victims who may think they're trapped in similar situations. "I think a lot of people feel like they are alone and that nobody cares," Dyer said. "The biggest thing is that they're not alone."

I fully understand the desire and need to protect victims from those who criminally victimized them, not only in sex offense cases but also in other settings.  But if the problem highlighted in this article is rare, I would urge legislatures to be cautious before passing broad new laws that would impact a broad swath of offenders.  With research suggesting that broad sex offender residency restrictions may be doing much more harm than good, I worry about one disconcerting case prompting states to embrace more broad collateral consequences that could create some unexpected consequences.

August 20, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6)

Sunday, August 13, 2017

Making a case against sex offender registries

Newsweek has posted this new opinion piece authored by Professor Trevor Hoppe under the headlined "Are Sex Offender Registries Too Strict?." As evidenced by these excerpts, it seems the author believes the answer to this question is yes:

In my work on sex offender registries, I have found that black men in the U.S. were registered at rates twice that of white men—resembling disparities found in the criminal justice system at large. However, these findings speak to the scope of the problem of American sex offender registries, as approximately 1 percent of black men in the U.S. are now registered sex offenders.  My research suggests that inequality is deeply tied to sex offender policies....

Imagine being punished for something you did three decades ago.  You served your time and thought it was in the past. Under American sex offender laws, moving on is nearly impossible: Most state policies are retroactive, meaning they apply to offenders who committed offenses before these laws were put in place.  While these laws are the subject of several ongoing court battles, most remain in effect.

Offenders are subject to extensive public notification requirements, which include state-run search engine listings that feature their address, mugshot, criminal history and demographic information. In some cases, offenders are also required to publicly post flyers with their pictures or run newspaper notices advertising their residency.  Some states, such as Louisiana, stamp “SEX OFFENDER” in large red script on driver’s licenses.

Having a mugshot disseminated across internet search engines is only the tip of the iceberg; once registered, offenders are subject to a wide array of housing and employment restrictions.  In many places in the U.S., sex offenders are effectively zoned out of cities and towns because there are no residential areas that satisfy all of the numerous regulations. For example, offenders may be prohibited from living within a certain number of feet from a playground. They are often left with no choice but to live under highways or in improvised communities, such as the one in Pahokee, Florida depicted in the New York Times 2013 short film, “Sex Offender Village.”...

Lawmakers ... argue that more invasive policies are necessary because sex offenders are highly likely to commit future crimes. In their view, informing the public of their criminal history will offer protection.  But as the U.S. federal government’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking notes, sex offender registration requirements “have been implemented in the absence of empirical evidence regarding their effectiveness.”

Now that all 50 U.S. states and Washington, D.C. have developed such registries, the evidence testing the effectiveness of sex offender registries is beginning to mount. It is mixed, at best.

One study followed sex offenders who were labeled “high-risk” for reoffending and who were released from Wisconsin prisons in the late 1990s. That study compared offenders who were subjected to limited public notification requirements with those who were subjected to extensive requirements.  The researchers found no significant difference in the average time between release and a future offense.  In other words, extensive public notification did not deter future offenses.

However, another study evaluated the likelihood of reoffending for sexual offenders labeled “high risk” released from Minnesota state correctional facilities. Here researchers found that offenders subject to community notification were somewhat less likely to commit another sexual offense.

Finally, a recent study found that sex offenders released in Florida between 1990 and 2010 had lower rates of recidivism than offenders of other types of crime -- 6.5 percent for sex offenses, as compared to 8.3 percent for nonsexual assaults and 29.8 percent for drug offenses.  Moreover, that study found that recidivism rates increased after the state legislature implemented sex offender registration requirements in 1997.

While the evidence is mixed that these policies are effective at deterring crime, the evidence of their collateral consequences is more consistent.  Several studies of registered sex offenders have revealed how registries reinforce class inequality by creating patterned experiences of unemployment, harassment and homelessness.

From a public safety perspective, scholars note that registries provide the public with a false sense of security: While the existence of sex offender registries reinforces a myth of “stranger danger,” most offenders in reality are acquaintances or family members.  Balancing the thin support of the registries’ effectiveness against the more robust evidence of their negative effects, one scholar recently concluded these policies do more harm than good.

My research suggests there is also a racialized dimension to the war on sex offenders that complicates arguments in their favor. The evidence does not strongly suggest registries are effective at deterring crime. Rather, their most lasting impact may be their exacerbation of inequalities based on race, class and gender.

August 13, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Wednesday, August 09, 2017

Should and will SCOTUS take up constitutional challenge to Minnesota's sex offender confinement program?

The question in the title of this post is prompted by this effective Minnesota Lawyer article headlined "SCOTUS to mull accepting sex offender lawsuit."  The article reviews a cert petition that has garnered a lot of amici interest, which always increases the odds of SCOTUS interest. Here are excerpts from the start and end of the piece:

A case began in December 2011 as a pro se proceeding by patients in the Minnesota Sex Offender Program disputing the conditions including room searches, restrictive telephone and mail policies and bad food, among other things — that’s how the defendant state of Minnesota characterized it, anyway.  When the petitioners got an attorney, it got re-characterized as a matter of substantive due process.

It’s now pending at the United States Supreme Court, where the justices will consider the patients’ petition for certiorari.  The briefs are all in now — one from the state, two from petitioners and four from amicus curiae supporting the petitioners.

The constitutional issue presented to the Supreme Court is the standard of review that should apply to substantive due process claims brought by the patients. Strict scrutiny, the highest standard, as employed by Judge Donovan Frank?  Or simply a reasonable relation standard, as used by the 8th U.S. Circuit Court of Appeals? And must one’s conscience be shocked by the actions of the respondents, and if so, at what stage of the review?

As the petitioners’ attorney, Dan Gustafson, sees it, the nub of the problem is that once a person is committed, he or she is labeled dangerous and loses the fundamental right to liberty effectively forever under the state system. The state has failed to enact a procedure to make sure that people are able to be released, Gustafson said. The state does have a statutory reduction in custody scheme in place, but it shifts the burden of proof to the patient and it has never resulted in a release until this lawsuit was filed. “We’ve demonstrated that it hasn’t worked for the last 25 years,” Gustafson said....

Four amicus curiae briefs from a spectrum of philosophical points of view have been submitted by friends of the court in Karsjens, et al. v. Emily Johnson Piper, et al. But they all want the Supreme Court to reverse the 8th Circuit, which didn’t have a problem with the program, which had been found unconstitutional by Judge Donovan Frank.

A group of 26 professors of law or related subjects has submitted a brief written by Mitchell Hamline Professor Eric Janus and Minneapolis attorney Richard D. Snyder. The fatal flaw in the MSOP program is that no one gets out, Janus said. “The core of the case is that the state set up what it said was going to be a civil commitment program. And the core definition of that is people get out, and that’s exactly what is missing in the Minnesota program.  It’s not just missing here or there, it’s systemically missing,” Janus wrote.

The Cato Institute, known as a libertarian think tank and an advocate for limited government, is another friend of the court.  Its brief argues, “Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole — threatening to swallow other rights and other’s rights — this Court should intervene.”

Also weighing in are criminology scholars and the Fair Punishment Project of Harvard Law School, as well as the Association for the Treatment of Sexual Abusers. The Fair Punishment Project writes that the commitment statute is a punitive scheme that has responded excessively to “moral panic.”  The Association for the Treatment of Sexual Abusers promotes sex offender research and treatment.  It argues that granting review is necessary to take account of important advances in the empirical study of rates of recidivism among sexual offenders; effective assessment treatment, and management of sexual offenders; and factors that influence the effectiveness of treatment interventions.

A few prior related posts:

August 9, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, August 01, 2017

Eighth Circuit affirms exclusion of juve who moved from Nebraska's sex offender registry

As noted in this prior post last year, a federal judge has blocked Nebraska from putting a 13-year-old boy who moved to the state from Minnesota on its public sex offender registry. Yesterday, an Eighth Circuit panel affirmed this ruling via this opinion which starts this way:

The State of Nebraska, along with the Nebraska State Patrol (NSP) and various state officials (collectively, the State), appeals the district court's grant of summary judgment to A.W. and A.W.'s guardians, John and Jane Doe, enjoining it from applying to A.W. a provision of Nebraska's Sex Offender Registration Act (SORA).  That provision, Neb. Rev. Stat. § 29-4003(1)(a)(iv), applies SORA to any person who, on or after January 1, 1997, "[e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."  We hold that this provision does not apply to appellant A.W. and, accordingly, affirm the district court.

The full panel ruling is interesting for how it applied Nebraska's sex offender registry law, but a final footnote highlights some broader constitutional questions the panel saw implicated in the case. Here are excerpts from the footnote:

We note that even if we found "sex offender" to be ambiguous, leaving us with the choice of selecting between two reasonable constructions, one requiring conviction and one not, we would be strongly inclined to affirm the district court.  We believe the application of SORA and its public notification requirement to juveniles adjudicated delinquent in other jurisdictions but not in Nebraska raises serious constitutional concerns under the rights to travel and to equal protection of the laws.  Of the events triggering application of SORA under NSP regulations -- residency, employment, carrying on a vocation, or attending school in Nebraska, 272 Neb. Admin. Code ch. 19 § 003.02 -- it is highly likely a juvenile would be subject to SORA due to residency. This raises troubling implications under the third prong of the right to travel, arising from the Privileges and Immunities and the Privileges or Immunities Clauses of the U.S. Constitution..., as well as under the Equal Protection Clause.  Further, to the extent the purpose of § 29-4003(1)(a)(iv) is to prevent migration into the state of undesirable citizens, application of SORA to A.W. under that provision may raise other constitutional concerns as well. Saenz, 526 U.S. at 503 ("The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons." (quoting Slaughter-House Cases, 83 U.S. 36, 112 (1872) (Bradley, J., dissenting))). Given the choice between two reasonable constructions, we will generally avoid a construction that raises "grave and doubtful constitutional questions." Union Pac. R.R. Co. v. United States Dep't of Homeland Sec., 738 F.3d 885, 892 (8th Cir. 2013).

August 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Wednesday, July 19, 2017

Pennsylvania Supreme Court finds state sex offender registration law punitive and thus unconstitutional to apply retroactively

In a big opinion today, the Pennsylvania Supreme Court decided its state's sex offender registration law, though civil in design, was punitive in practice and thus cannot be applied retroactively. The 55-page majority opinion in Pennsylvania v. Muniz, No. (Pa. July 19, 2017) (available here), gets started this way:

We granted discretionary review to determine whether Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.10-9799.41, as applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.  The Superior Court held SORNA’s registration provisions are not punishment, and therefore retroactive application to appellant, who was convicted of sex offenses prior to SORNA’s effective date but sentenced afterwards, does not violate either the federal or state ex post facto clauses.  For the following reasons, we reverse and hold: 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The 13-page dissenting opinion authored by Chief Justice Saylor is available here and concludes this way: "Based on the Mendoza-Martinez factors, which I view as almost uniformly suggesting a non-punitive effect, I would conclude that SORNA’s registration requirements do not constitute punishment and do not violate the federal ex post facto clause."

July 19, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (27)

Saturday, July 08, 2017

DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional

As reported in this post from last summer, a Sixth Circuit panel concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here), that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively.  Michigan  appealed this decision to the US Supreme Court, and SCOTUS in March asked for the US Acting Solicitor General to express its views on the case.

Yesterday, the Acting SG filed this brief with SCOTUS stating that in "the view of the United States, the petition for a writ of certiorari should be denied." The discussion section of the brief begins this way:

Michigan’s sex-offender-registration scheme contains a variety of features that go beyond the baseline requirements set forth in federal law and differ from those of most other States.  After applying the multi-factor framework set out in Smith v. Doe, 538 U.S. 84 (2003), the court of appeals concluded that the cumulative effect of SORA’s challenged provisions is punitive for ex post facto purposes.  While lower courts have reached different conclusions in analyzing particular features of various state sex-offender-registration schemes, the court of appeals’ analysis of the distinctive features of Michigan’s law does not conflict with any of those decisions, nor does it conflict with this Court’s holding in Smith.  Every court of appeals that has considered an ex post facto challenge to a sex-offender-registry statutory scheme has applied the same Smith framework to determine whether the aggregate effects of the challenged aspects of that scheme are punitive.  And although most state sex-offender-registry schemes share similar features, they vary widely in their form and combination of those features.  Accordingly, to the extent the courts of appeals have reached different outcomes in state sexoffender-registry cases, those outcomes reflect differences in the statutory schemes rather than any divergence in the legal framework.  Finally, petitioners’ concern (Pet. 26-29) that the court of appeals’ decision will prevent the State from receiving some federal funding does not warrant review.  That concern is premature, as it may well be the case that Michigan can continue to receive federal funds notwithstanding this decision.  And the decision does not prevent the State from implementing a sex-offender-registration scheme that is consistent with federal law.  Further review is therefore not warranted.

July 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Saturday, July 01, 2017

UK study finds greater recidivism among sex offenders who received treatment in prison

As reported in this BBC article, the "main sex offender treatment programme for England and Wales has been scrapped after a report found it led to more reoffending." Here is more:

Researchers found prisoners completing the programme were slightly more likely to offend than a control group.  The Ministry of Justice (MOJ) replaced the scheme in March after research confirmed evidence of its weaknesses. The main programme to psychologically treat the highest-risk offenders has also been replaced, the ministry said.

The MOJ confirmed the change in treating sex offenders following publication on Friday of its own study which suggested the Core Sex Offender Treatment Programme (SOTP) could be making the situation worse. The scheme, designed to challenge the behaviour of male sex offenders with psychological techniques to change their thinking, was first approved in 1992.

Researchers followed what happened to 2,562 prisoners who took part in the 180 hours of group sessions before their later release from prison. They then compared their behaviour over the following years with more than 13,000 comparable offenders.

"More treated sex offenders committed at least one sexual re-offence [excluding breach of conditions of release] during the follow-up period when compared with the matched comparison offenders (10% compared with 8%)," said the study. "More treated sex offenders committed at least one child image re-offence when compared with the matched comparison offenders (4.4% compared with 2.9 %).

"The results suggest that while Core SOTP in prisons is generally associated with little or no changes in sexual and non-sexual reoffending ... the small changes in the sexual reoffending rate suggest that either Core SOTP does not reduce sexual reoffending as it intends to do, or that the true impact of the programme was not detected.

"Group treatment may 'normalise' individuals' behaviour. When stories are shared, their behaviour may not be seen as wrong or different; or at worst, contacts and sources associated with sexual offending may be shared." An earlier version of the scheme, in place in 2000, had appeared to reduce the offending of medium-risk men. But a study seven years later, after Core SOTP had been expanded, suggested the sessions had become too generic and based around a "detailed manual", rather than tailored to each offender.

The full Ministry of Justice study is available at this link.

July 1, 2017 in Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (9)

Wednesday, June 21, 2017

A misdirected attack on two notable sentences in Justice Alito's Packingham concurrence

There is a lot worth discussing concerning the Supreme Court's decision in Packingham earlier this week (basics here), and this new Washington Post "Fact Checker" piece decides to give particular attention to two lines from Justice Alito's concurrence in a piece headlined "Justice Alito’s misleading claim about sex offender rearrests."  I find the WaPo piece itself somewhat misleading (or really misdirected) because it is focused too much on the second of these two sentences in Justices Alito's opinion rather than the first:

“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”

After reviewing a bunch of statistics, this WaPo piece comes to this conclusion:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading.  It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release.  This makes it seem like recidivism among sex offenders to be a uniquely bad problem, but it is an apples-to-oranges comparison.

This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago.  Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide.   It does the public no service when the Supreme Court justices make a misleading characterization like this.  We award Three Pinocchios.

I find disconcerting that what this WaPo piece is calling " quite misleading" is a sentence (the second one above) that is factually accurate.  The piece strikes me as especially problematic because it fails to stress that what might make the second sentence about "sex offender rearrest trends" potentially misleading is that it follows the forceful assertion that "repeat sex offenders pose an especially grave risk to children."  In my reading, it is the phrase "especially grave risk to children" that contributes to the impression that "recidivism among sex offenders [is] a uniquely bad problem."

That all said, the ever bigger problem with the law at issue in Packingham and lots of other similar laws and the WaPo commentary itself is use of the always-way-too-broad offender category of "sex offender."  This board label necessarily lumps together some relatively minor adult offenders and some relatively very serious offenders who consistently victimize children.  There are certainly some serious sex offender who do pose an "especially grave risk to children," but many folks on sex offender registries may pose less of a risk to children than do the average person.

Ultimately, these are challenging issues to discuss with precision both conceptually and statistically.  And though I am always pleased to see detailed discussion of crime data in the Washington Post, I am troubled by its decision to "award Three Pinocchios" to a statement that is factually true. 

UPDATE: I just noticed that Ed Whelan over at Bench Memos has this more thorough review of this WaPo piece under the titled "Fact-checking the fact Checker."

June 21, 2017 in Data on sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25)

Tuesday, June 20, 2017

Wondering about judicial "wild-ass guesses" when considering child-porn restitution since Paroline

Long-time readers may recall a period about five year back when I was regularly blogging about notable federal district and circuit opinions struggling in various ways to figure out whether and how federal courts could impose restitution awards/punishments on federal offenders convicted only of downloading illegal images.  (As blogged here, a New York Times Magazine cover story in January 2013 nicely covered the legal and social issues involved in what was ultimately a sentencing question.)   Because the issue produced various splits in the lower courts, the Supreme Court took up and resolved the question in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  

But while Paroline resolved some measure of legal uncertainty surrounding this child-porn restitution issue, it did so in a way that largely punted a host of factual challenges back to district courts at the time of sentencing.  This new local article in my local paper, headlined "Judge doesn’t want to guess on child-porn restitution," reminds me that Paroline did not really end the messy questions surrounding child-porn restitution determinations, it just made the litigation here much lower profile.  Here are excerpts from the local article:

U.S. District Judge Michael H. Watson doesn’t like “wild-ass guesses,” according to federal courts Reporter Earl Rinehart.

Watson presided over a restitution hearing last week during which a civil attorney representing a child pornography victim called “Andy” had petitioned Watson for $58,415 in damages.  The attorney’s client wasn’t the underage teen the defendant had photographed nude and was convicted for, but Andy’s picture was on the defendant’s computer.

In 2014, the U.S. Supreme Court ruled that child-pornography defendants could be liable to pay victims an amount proximate to the harm caused by having and/or distributing the image. Watson has said Congress needs to set standards to help judges calculate how much restitution to approve.  A bill that would set those minimum amounts was passed by the U.S. Senate but has languished in the House Judiciary Committee since February 2015.

Although he commended Assistant U.S. Attorney Heather Hill for her “valiant effort” in arguing for restitution, he agreed with Assistant Federal Public Defender Rasheeda Khan, who argued there was no evidence the defendant had shared Andy’s image and there was no way to accurately figure how much he owed now and for the victim’s future therapy costs. Another 158 defendants have either agreed to pay restitution to Andy or were ordered to do so.

Watson said the petition was based on a 2014 report that’s “not subject to cross examination” and “would not be admissible in a civil litigation.”

“There is no evidence Andy is a victim of this offense,” the judge said. He called again on Congress “to give us some direction.”

“It’s essentially a wild-ass guess for me to figure the appropriate restitution,” Watson said before denying any to Andy.

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

June 20, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Monday, June 19, 2017

SCOTUS declares unconstitutional North Carolina criminal law restricting sex offender access to social media

Today was a big day for the First Amendment in the US Supreme Court.  In addition to a notable First Amendment trademark ruling, the Court handed down a widely anticipated ruling in Packingham v. North Carolina, No. 15–1194 (S. Ct. June 19. 2017) (available here), dealing with a state law restricting internet access for sex offenders.  Here is how the Court's majority opinion in Packingham, authored by Justice Kennedy, gets started and a key closing paragraph:

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter.  The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment....

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.  Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The majority opinion in Packingham is quite short, but that does not mean it does not pack a punch.  In fact, Justice Alito authored an extended concurrence which was joined by the Chief Justice and Justice Thomas in order to lament some of the "undisciplined dicta" in Justice Kennedy's short majority opinion.  Here is how the concurrence begins:

The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” New York v. Ferber, 458 U.S. 747, 757 (1982) — but it has a staggering reach.  It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children.  Because of the law’s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.

I cannot join the opinion of the Court, however, because of its undisciplined dicta.  The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.  Ante, at 4–5.  And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers.  I am troubled by the implications of the Court’s unnecessary rhetoric.

(Though the issues in Packingham are no laughing matter, I am getting a giggle thinking about whether the phrase "undisciplined dicta" would better serve as my stage name if I was part of a nerdy rap band or just ought to be made into a rubber-stamp to help all my students add that commentary to course evaluations.)

June 19, 2017 in Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (16)

Friday, June 02, 2017

Considering the unique housing challenges for aging sex offenders

This new Atlantic article explores the questions that now attend an ever-growing and ever-aging sex offender population.  The piece is headlined "The Puzzle of Housing Aging Sex Offenders: States are grappling with how to care for a growing population of registered offenders in long-term care facilities."  Here are excerpts:

When state officials finally released William Cubbage from the Iowa Mental Health Institute in 2010, they predicted he was too sick to hurt anyone again. But the octogenarian only became an even more notorious sex offender....

And while Cubbage’s case is extreme, he’s symptomatic of a larger puzzle in America’s long-term care facilities that no one’s managed to solve.  As lawmakers in Oklahoma and Ohio have found, isolating aging sex offenders is easier planned than achieved.

“The problem is that you’re talking about a project that’s uniquely difficult when it comes to structural needs and safety,” says Amy McCoy, a public-information officer with the Iowa Department of Human Services. “You’re talking about things like hallways without corners. You’re also talking about building a place that isn’t a prison. It’s something entirely different from a traditional care facility. You want people in the least restrictive setting, but you also want to be able to respond if something does happen.”

Local lawmakers have been sounding alarms for at least a decade whenever sex offenders strike.  With no federal regulations dictating how long-term care centers should handle offenders, solutions vary state to state. In 2012, Iowa’s Governor pushed a bill requiring nursing homes to notify residents if an offender moved in, but it died in the legislature.  California’s Department of Corrections notifies nursing homes if anyone on the sex-offender registry applies for residency, and the nursing homes are required to notify residents and employees.  Illinois facilities forbid offenders from having roommates and tests them for any special care needs before sending the results to local police and the Department of Public Health. (Requests to interview multiple nursing homes in Iowa, Ohio, and Illinois for this story went unanswered.)

Just as Iowa’s now considering, Oklahoma passed law in 2008 to create a specialized nursing home for offenders.  But not a single bid to construct the property was submitted.  A contractor’s reluctance to be involved with such a property could be due to its specialized requirements, but in the view of the sex-offender advocate Derek Logue, it’s just as likely another case of people not wanting any connection to the registry. Logue is the founder of Once Fallen, which calls itself the “leading reference & resource site for Registered Citizens.” A Cincinnati resident, Logue himself is registered in Ohio for a 2001 conviction of First Degree Sexual Abuse against an underage girl. At age 40, he calls himself “one of the younger guys”; most offenders who call for help finding a place to live or a job are in their 50s or 60s.

“If you look at the nursing homes that do take registered citizens, they tend to have below-average grades,” Logue says. “It’s the same issue [offenders] face when they’re trying to find a place to live.  You’ll never be anywhere decent, you always end up with some landlord who doesn’t care about the property.  We don’t exactly get quality service.”

Logue knows you won’t cry over his failure to score a luxury penthouse, but he counters that he’s served his time.  And it’s his tribe’s pariah statues, he says, that makes registered offenders likely to need extra medical attention in their declining years.  Beyond the Gordian knot that is the ongoing argument over the sex-offender registry’s effectiveness, constitutionality, and methods of inclusion, offenders are less likely to be employed, more likely to live in poverty if they do have full-time work, and subsequently less likely to have access to preventive care.

It’s also hard to gauge exactly how much of a danger they pose as seniors. Sexual assaults are already underreported crimes, and recidivism rates among all ages vary from study by study. Karl Hanson and Kelly Morton-Bourgon, a pair of sex-crimes researchers who work for the Canadian government, estimate that the average rate is likely around 13.7 percent. Meanwhile, multiple recent studies suggest recidivism rates seem to decline among the elderly....

Another blind spot is that almost no one is counting how many sex offenders require end-of-life care. Back in 2006, the U.S. Government Accountability Office counted 700 registered sex offenders living in nursing homes or intermediate care facilities. More recent numbers among the nation’s 15,600 long-term care facilities and their 1.4 million residents are hard to come by.

June 2, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Thursday, June 01, 2017

Lots of notable new reporting and commentary from The Marshall Project

The always terrific Marshall Project always has many great pieces that should be must-reads for sentencing fans.  Though I rarely have the time or ability to give shout-outs to all of the great work done there, the last few days have seen the posting of these pieces or reporting and commentary that all struck me as particularly blog-worthy:

Tuesday brought this Commentary, authored by Mark Osler, headlined "The Problem with the Justice Department: It’s a building full of prosecutors."

Wednesday brought this News piece, authored by Justin George, headlined "What Are Inmates Learning in Prison? Not Much: A new survey of 2,000 federal prisoners reveals big gaps in teaching reentry skills."

Thursday brought this Feature piece, authored by Anat Rubin, "Downloading a Nightmare: When autism, child pornography and the courts collide."

The last of these pieces is especially lengthy, but should be especially interesting for sentencing fans who think about when and how offender characteristics should or should not impact sentencing decisions. Here is a portion of the piece:

The “autism defense” was thrust into the spotlight by the case of Gary McKinnon, who, in 2002, from an apartment in London, broke into computers at the Army, Air Force, Navy, Department of Defense and NASA, searching for evidence of a UFO cover-up.  In fighting his extradition to the United States, McKinnon’s legal team argued that his crime was the result of his autistic compulsions.  “And then we started to see an increase in other individuals coming forth and claiming that Asperger's was causal in their need to — and their compulsion to — download child pornography,” said Chad Steel, who conducts digital forensics investigations for the federal government.

Steel, who also teaches digital forensics at George Mason University, wrote a paper to help forensic psychologists and others in law enforcement gather evidence to refute the central assumptions of the autism defense in child pornography investigations. “A frequent argument we get is that the person was unable to control their impulses, unable to know it was wrong.  There have been some cases where that’s absolutely been true,” he said.  “But when you read ‘this person has high-functioning autism, they didn’t know what they were doing’ — that’s not necessarily true.”  He said before the McKinnon case, he was seeing defendants who were likely autistic, even if they didn’t have an official diagnosis. But since McKinnon, the disability is more likely to take center stage.

The autism defense can be a double-edged sword in court.  Arguing that the defendant has the social and emotional maturity of a child can backfire.  Prosecutors can use that information to argue the defendant is likely to reoffend.  More often, parents whose lives have been defined by their child’s disability find that, in the eyes of the criminal justice system, their child doesn’t seem disabled enough.

The Marshall Project reached out to state and federal prosecutors with experience in child pornography cases.  With few exceptions they were unwilling to discuss cases involving autism.

For all child pornography defendants, outcomes depend largely on geography.  Some judges stick close to the federally-recommended sentences, while others have spoken out against the increased punishments. But for autistic defendants, the outcomes seem also to depend on how autism is explained to the court.  “In cases where judges and prosecutors have really been informed on all the dimensions in which Asperger’s applies, they got drastically reduced punishments,” [defense attorney Mark] Mahoney said. “If they get the right information, there’s a good chance — a much better chance than defense attorneys imagine — that prosecutors will understand that this is a population that just doesn’t have the dangerousness we associate with the behavior.”

In arguing for diversion, Mahoney focuses on what prison is like for an autistic person.  Many people with autism are unable to understand the hidden social structure of a prison environment.  They sometimes tell on others who break the rules.  They are eager to please and easily manipulated.  Their behavior can be misinterpreted by prison staff, and they are often placed in isolation, either as a form of punishment or for their own protection.

June 1, 2017 in Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, May 30, 2017

Australia working on a novel travel ban for certain sex offenders ... to keep them in the country

This new AP article, Headlined "Australia plans to ban pedophiles from traveling overseas," reports on a kind of travel ban being discussed down under that is quite distinct from the one now being litigated here in the US.  Here are the details:

Australia plans to ban convicted pedophiles from traveling overseas in what the government said Tuesday is a world-first move to protect vulnerable children in Southeast Asia from exploitation.  Australian pedophiles are notorious for taking inexpensive vacations to nearby Southeast Asian and Pacific island countries to abuse children there.

Foreign Minister Julie Bishop said she would cancel the passports of around 20,000 pedophiles on the national child sex offender register under legislation that will be introduced to Parliament soon.  "There has been increasing community concern about sexual exploitation of vulnerable children and community concern is justified," she told reporters.

Almost 800 registered child sex offenders travelled overseas from Australia last year and about half went to Southeast Asian destinations, she said.  "There will be new legislation which will make Australia a world leader in protecting vulnerable children in our region from child sex tourism," Bishop said.

Justice Minister Michael Keenan said no country has such a travel ban.  He said 2,500 new convicted pedophiles would be added to the sex offender register each year and would also lose their passports.

The register contains 3,200 serious offenders who will be banned from travel for life.  Less serious offenders drop off the register after several years of complying with reporting conditions and would become eligible to have their passports renewed.

Independent Senator Derryn Hinch, who was molested as a child and was jailed twice as a radio broadcaster for naming pedophiles in contravention of court orders, took credit for the government initiative. Hinch said he had not known that convicted pedophiles were allowed to travel before he received a letter from Australian actress and children's rights campaigner Rachel Griffiths soon after he was elected to the Senate last year. "If we can take a passport from a bankrupt, why can't we stop our pedophiles from traveling to Myanmar?" Griffiths wrote. Under Australian law, a bankrupt person cannot travel overseas without a trustee's permission.

Hinch, who was involved in drafting the legislation, said temporary passports could be provided to pedophiles who need to travel for legitimate business or family reasons, and for pedophiles living overseas who need to return to Australia as their visas expire. "This will not apply to a teenager who has been caught sexting to his 15-year-old girlfriend," said Hinch, referring to sexual phone communications. "I know sometimes, I think unfairly, they go on registers, but we're trying to work it out so they don't," he added....

Australia has attempted to crack down on Australian child sex tourists by adding a new criminal offense punishable by up to 25 years in prison for Australian citizens or residents who molest children overseas.

May 30, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Thursday, May 25, 2017

Deep dive into the deep challenges of sentencing different types of child sex offenders

The Shreveport Times has this detailed five-part series, called Sinister Web, which looks into the modern digital world of child pornography. One article in the series examines case-processing and sentencing issues and challenges in this sad space under the headlined "Different outcomes for child rapists, child pornographers."  Here are excerpts:

Prosecutors face specific challenges when handling contact child sexual abuse cases, which often result in less prison time for those who sexually assault children than for those who possessed or distributed child pornography via the internet.

The conviction rate in U.S. child pornography possession cases is 97 percent, according to the Crimes Against Children Research Center and the Bureau of Justice Statistics. The conviction rate is much lower for offenders who commit hands-on sex crimes against children: 46 percent....

Experts cite multiple reasons for the disparities in sentencing and conviction rates.  One is that young children often are difficult witnesses because they include "fantastical" elements in their testimonies or they cannot give detailed, accurate information to investigators, said Dr. Sharon Cooper. Cooper, a forensic pediatrician who has provided expert testimony in more than 300 cases involving internet and child sexual abuse crimes, also said that forensic interviews of children may not show any physical evidence of abuse, as many children wait years to disclose.

But child sexual abuse images “speak for themselves,” said Lt. Chad Gremillion, a detective with the special victims unit of the Louisiana State Police. “You can’t deny what they are, what the focal point is, the abuse of a video where a four-year-old is being forced to provide oral sex to a male in a home,” Gremillion said.

The need for child victims of sexual abuse to testify at trial also is an issue.  Defense attorneys surveyed by The Times said they often encourage clients to plead guilty to reduced charges to avoid a trial and in exchange for less prison time. Prosecutors and victims’ families often accept those pleas to prevent further trauma to the children involved, said Caddo Parish Assistant District Attorney Monique Metoyer.  Many young children simply are not emotionally equipped to testify in an open courtroom, Metoyer said.... Another difficulty in prosecuting child sexual abuse cases is that victims often know their abusers.  

Another way some say the law is outdated: Those who upload child sexual abuse images to the internet, where they can be accessed by anyone in the world, can be charged under federal law with transporting materials across state lines — even though all they did was click a button on a home computer, said Katherine Gilmer, also a Shreveport defense attorney.  

As happened with Jesse Ward, the police officer who was caught after sharing a single image depicting child sexual abuse with an online undercover agent.  Law enforcement officers also found "more than ten electronic images" of child pornography on a computer hard drive in his home in McDuffie County, Georgia, according to court documents.  Ward initially was charged with three counts: possession, receipt and transportation of child pornography. Two of Ward's charges — receipt and possession of child pornography — were dropped upon the conviction of the third, more serious charge, transporting child pornography.  The transportation charge applied because he had uploaded the image to a network from which users in other states could download it — thus crossing state lines, a distinction that gained his crime federal status.  Ward was sentenced to 20 years.

But those who possess, and do not share, child sexual abuse images also often face stiffer sentences than those who commit contact crimes against children.  Melville resident Russell Guillory was sentenced to 10 years in prison in 2016 for possessing child pornography. The Lafayette man's collection included 75 videos and six images of child sexual abuse — including images depicting penetration of a 2-year-old child.

A judge, in imposing sentence, said that the materials were “especially heinous” and that the “very young children” in the materials “were not in a position of sufficient strength to resist the sexual abuse,” according to court documents. In a letter to the Times, written in April, Guillory said his sentence did not match his crime.  “Even good people make mistakes, but mistakes should never make a person,” Guillory wrote.  “We all have moments of weakness and make mistakes.”...

Unlike many contact sex crimes, child pornography possession and distribution charges carry mandatory minimum sentences, while judges in child sexual contact crimes have more discretion at sentencing. Child pornography crimes carry a mandatory five to 20 years of prison time....

Peter Flowers, a defense attorney in Shreveport, said the law has not been updated to reflect changes brought by the internet and digital photography. He voiced frustration with how the criminal justice system handles those convicted of child pornography offenses, especially because of what he termed “outdated” enhancements. “It used to be that if you amassed 500 pictures, you really had to work hard. Now, it’s just pressing a button. It’s not the same thing,” he said.

Flowers also said undercover stings — in which agents pose online as underage children and then arrest adults who initiate sexual conversations — catch only the “low-hanging fruit.”

“There are some serious child pornographers out in the deep, dark web, and that’s where the real danger is,” he said. “The real deal is much deeper.”

Regardless of prison time, all sex crimes in Louisiana require sex offender registration, which can provide a degree of closure for child victims and their families or destroy an offender’s life forever, depending on whom you talk to. Flowers said registration is a “very serious thing” and “not just about having a sign put in your yard or having a strip across your driver’s license.”  Offenders can’t pick their own children up from school.  Those who live within 1,000 feet of a school, church or a park must sell their homes and move, Flowers said....

Law enforcement officers, for the most part, expressed little sympathy for those convicted of possessing or distributing child pornography.... Corey Bourgeois, lead investigator at the Louisiana Attorney General’s cyber crime lab in Baton Rouge, said the state sentencing guidelines fit the crimes. “You know how you got that image?  Somebody was abused to get that image,” he said.  Metoyer said those who access child sexual abuse images chose to do so. “Even though we’re looking at images of children and you may not see the children in the room with you, these are real children,” Metoyer said.  “This has impacted them for the rest of their lives.”

May 25, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15)

Monday, May 22, 2017

California struggles over whether all sex offenders can be excluded from Prop 57 parole reforms aimed at non-violent offenders

This new Los Angeles Times article, headlined "Debate over sex offenders moves to court as California undertakes prison parole overhaul," provides an updated on the legal and policy issues surrounding sex offenders in the wake of a California ballot initiative intended to help non-violent offenders get an earlier chance for parole. Here are excerpts:

Los Angeles-based nonprofit is claiming California prison officials have undermined last fall’s ballot measure to overhaul the state’s parole process by excluding sex offenders from consideration for early release. The Alliance for Constitutional Sex Offense Laws, which advocates for the rights of those convicted of sex crimes and their families, says the exemption — written into newly released guidelines to implement Proposition 57 — “impermissibly restricts and impairs the scope” of the initiative.

Those regulations were released in March and won initial approval from state regulators a month later. But the original ballot measure did not exclude inmates convicted of sex crimes from the chance of getting an earlier hearing before the state parole board.

The group filed the lawsuit in late April against the state Department of Corrections and Rehabilitation and its director, Scott Kernan. It argues the new rules are unconstitutional and it asks a judge to order corrections officials to withdraw and repeal them, according to the complaint filed in Sacramento County.

“We want the benefits of Proposition 57 to be provided to people who have been convicted of ‘non-violent’ sex offenses,” said attorney Janice Bellucci, who is representing the alliance and an inmate who brought the case forward. “It is a basic rule of law that regulations cannot be broader than the law that they are implementing.”...

Debate over the treatment of sex offenders under Proposition 57 has simmered since last fall’s campaign season. But at that point, the outcry came from law enforcement officials and prosecutors who argued they did not want to see the ballot measure’s benefits extended to rapists and child molesters.

The sweeping initiative, approved by 65% of voters, gave new power to the State Board of Parole Hearings to grant early release to prisoners whose primary sentences are for crimes not designated as “violent” under California law. It also provided new ways for all inmates to earn time credits toward their sentences for good behavior and for enrolling in certain career, rehabilitation and education programs.

Opponents of Proposition 57 warned that the list of crimes under the violent felony penal code was short and porous, inspiring efforts in the Legislature this session to expand the definition of what constitutes a violent crime under state law. In his January budget proposal, Gov. Jerry Brown attempted to address those concerns, directing the state corrections department to exclude all sex offenders from early parole consideration. The department’s new parole guidelines are expected to receive final approval in the fall after a public comment period. Changes to how inmates can earn credits, which can help reduce their sentences, are already underway, while the new parole eligibility requirements won’t take effect until July.

But the advocacy group that filed the lawsuit wants the state agency to revise its rules. It contends that there was plenty of public debate over sex offenders during the Proposition 57 campaign — and that even then, voters passed the measure.... The lawsuit alleges the new exclusion applies to a whole class of nonviolent offenders, including people charged with crimes where there was no sexual contact with a victim.

As of Dec. 31, the number of inmates in California prisons who would have to register as sex offenders upon release stood at 22,455, less than 20% of the population housed at state prisons. Nearly 18,000 were designated as “violent” offenders, while more than 4,521 were considered “nonviolent,” according to state corrections officials.

Bellucci said those cases could include a diverse group of offenders. In theory, she said, the new regulations could unfairly penalize an 18-year-old convicted of public indecency for streaking in high school, or a 16-year-old sentenced for child pornography after distributing nude photos of herself. “Anybody who has been convicted of a violent offense, like rape, Prop. 57 doesn’t apply to them,” Bellucci said. “We are talking about nonviolent offenses, which includes these non-contact offenses.”

I would be shocked to learn that California has any teenage streakers or sexters imprisoned for lengthy periods now hoping to get early parole. I suspect the more realistic example of the sex offender who might claim to be non-violent and seek early parole are California variations on offenders like Jared Fogle or Anthony Weiner, i.e., older men involved with child pornography or perhaps other kinds of sexual activity with underage persons.  It will be interesting to see if the California courts allow of prohibit these kinds of offenders from being excluded from the reforms of Prop 57.

May 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, May 16, 2017

New lifetime GPS tracking for old sex offenders raising concerns in Missouri

This lengthy local article, headlined "Hundreds of Missouri sex offenders now required to wear GPS monitoring devices for life," reports on a new sex offender monitoring law that is causing consternation. Here are excerpts:

A sex offender from St. Charles County thought he had moved on with his life after successfully completing five years of probation for sending webcam photographs of his genitals to an undercover police officer posing as a 13-year-old girl.  Now he’s among hundreds of people in Missouri who are learning they must attach GPS monitoring systems to their ankles for life, even though such a requirement wasn’t part of their sentencing agreement.

The devices send out alerts if an offender lingers near a school or a park.  Cut the wide black strap and the waterproof device will tell on them. It beeps to prompt a verbal command from state officials, say to make a payment or report to probation officers immediately.

The retroactive requirements are part of a revised state criminal code that went into effect Jan. 1.  Offenders either found guilty or who pleaded guilty to 13 various sex crimes in question based on an act committed on or after Aug. 28, 2006, are subject to the added security measures.  Previously, the monitoring technology was used for a more limited class of high-risk offenders.

The St. Charles man is among several sex offenders who are suing and challenging the state. In the lawsuit, in which he is named only as D.G., the 40-year-old argues that the law didn’t exist when he pleaded guilty.  He claims he’s no longer “legally subject” to the jurisdiction of state prison authorities. He argues that he shouldn’t be required to pay monthly supervision fees for decades, nor have travel or residency restricted for life.

“I don’t think a lawyer can make a straight-faced argument that it’s constitutional,” said Clayton-based attorney Matt Fry, who is suing the state on behalf of D.G. and has many other plaintiffs in the wings.

A March 29 “Dear Sir/Madam” letter from chief state supervisor Julie Kempker lays out the law, including threat of a class D felony if conditions are violated.  “We understand that this change may be unexpected,” Kempker said in the letter.  “Rather than being detracted by the lifetime supervision requirements, you are encouraged to remain focused on your daily supervision responsibilities and to do those things that improve your life and positively impact your family and the community in which you live.”

Many sex offenders panicked and started calling lawyers. Some are confused: for instance, those no longer on supervision who moved away from Missouri.

A 41-year-old sex offender from south St. Louis County said he sees the changes as unlawful, too costly and ineffective.  “Lifetime. For the rest of your life. I can’t even comprehend it,” said the man, who didn’t want to be identified to avoid bringing more unwanted attention to himself.

According to court records, he pleaded guilty in 2012 to first-degree child molestation for touching the genitalia of a friend’s 7-year-old daughter.  The first-time offender was sentenced to 10 years in prison. He spent four months behind bars before he was let out to undergo treatment in the community. So long as he did well, he’d be done with state supervision after five years on probation, not including registering as a sex offender for life.  But during a monthly visit to his probation officer in April, he found out about being subject to the added layer of oversight.

He said he argued that lifetime GPS monitoring wasn’t part of his sentencing agreement. Still, the device was attached April 26.  He’s still getting used to wearing it. He said the device puts his job stocking snack machines in jeopardy and that he’s too embarrassed to wear shorts in public . He said it seemed like extra punishment added after the fact.

Kim Kilgore, the St. Louis County prosecutor who handled his case, disagreed. “It’s a collateral consequence of his plea,” Kilgore said. “The legislature has spoken that, in the interest to the public, he should be required to wear this. Mind you, his victim was 7 years old.”

She said sex offenses are a public health issue and should be handled accordingly, similar to people with a contagious disease who are quarantined. “Think of the burden that my victim suffers every day of her life for something he chose to do,” she said.

Officials have tried to notify at least 432 sex offenders like the man from south St. Louis County about the new monitoring requirements, according to the Department of Corrections, which oversees the division of probation and parole.  At the end of April, 364 of them had been placed on GPS monitoring.  They were already on state supervision. About 800 prison inmates are on deck. So are 500 people who already completed their sentences and are considered free.

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (25)

Sunday, May 14, 2017

Notable review of Colorado's recent experiences and concerns with polygraph testing of sex offenders

The Denver Post has this interesting article about the monitoring and testing of sex offenders in the Centennial State.  The piece is headlined "Colorado’s pricey polygraph testing of sex offenders under fire as critics target accuracy, expense: Psychologist calls state’s $5 million polygraph program 'grossly excessive' as state legislature examines cost."  Here are some excerpts from the extended piece:

Colorado has spent more than $5 million to administer polygraphs on convicted sex offenders over the last seven years despite concerns that the tests are so unreliable they can’t be used as evidence during civil or criminal trials.

Polygraphs help officials decide which prisoners convicted of sex offenses are suited for release from prison by probing their sexual history, attitudes about their crimes and whether they are committing new offenses.  They also guide how offenders on parole or probation are supervised.  “The polygraph really gives useful information,” said Lenny Woodson, administrator for the Colorado Department of Corrections’ Sex Offender Treatment and Monitoring Program. “And we’ve made it clear in our standards that it isn’t to be used in isolation. We’re using as many avenues as possible to make treatment decisions.”

But a bipartisan cross-section of legislators and a retired judge have joined with offenders and their families to question the validity of the tests.  They contend too much weight is placed on what they argue is little more than junk science.  Flawed polygraphs can complicate efforts for low-risk sex offenders to get paroled and lead to new restrictions for parolees or probationers, critics say.  Failure to take the tests can lead to sanctions, including eventual revocation to prison.

Studies show that up to 70 percent of U.S. states polygraph sex offenders, but experts have testified that Colorado uses the tests aggressively, even polygraphing juvenile offenders for consensual sexting.  Critics contend an entrenched and profitable cottage industry, rife with conflicts of interests, has grown up around polygraphing sex offenders in Colorado.  “To me, there is no question that it borders on a scam,” said Senate President pro tem Jerry Sonnenberg, R-Sterling.  “We incentivize the people who give the polygraph tests to have inconclusive results so an offender has to go back and pay for another one on a more regular basis.”

Colorado’s polygraphing is “grossly excessive,” said Deirdre D’Orazio, a psychologist who serves as an expert on a high-risk sex-offender task force in California, during testimony in federal court in Denver in 2015.  D’Orazio led a team of consultants that issued a report for the Colorado department of corrections in 2013 blasting how it manages sex offenders and how it uses polygraphs.  She returned to the state to testify for Howard Alt, then 51, who a decade earlier was convicted for having sex with a 15-year-old girl and possessing nude computer images of teenage girls.

After his release from prison, Alt had taken 28 polygraphs, often with competing results.  The treatment provider that tested Alt had a “fiduciary incentive conflict” to fail him, D’Orazio said.  The firm was “making money on outcomes that are not in the offender client’s favor” by requiring him to pay for more tests and treatment, she said.

A deceptive finding on one sex-history polygraph had prompted supervision officials to bar Alt, a former software developer, from accepting a job that would raise his salary from $60,000 to $200,000 annually.  Months later, the polygrapher found Alt to be truthful on the same questions even though he did not change his answers, showing the sanction against him was unwarranted, D’Orazio said.  “It is not a scientifically valid procedure,” D’Orazio testified.  “It has a high false-positive rate, which means misclassifying people who are telling the truth as being deceitful. So there is a lot of controversy about using the polygraph in high-stakes decisions.”...

The state of Colorado, relying on court fees paid by those convicted of sex crimes, picks up the tab of the polygraphs for those who are in prison and also often for the indigent who are out on parole or probation.  But when the state fund that pays for the tests runs out of money, parolees and probationers who don’t have the money to pay for them risk running afoul of their supervision requirements.  Revocation to prison can occur for refusing to take the polygraphs, defense lawyers say....

In addition to the legislators, C. Dennis Maes, former chief judge of Pueblo District Court, has criticized the use of polygraphs in Colorado.  He has written to the chief judges of all judicial districts in the state and to Nancy Rice, chief justice of the Colorado Supreme Court, urging a halt to polygraphing sex offenders, pointing out the results can’t be admitted as evidence during civil or criminal trails.  After his retirement, he represented a sex offender on probation, and was shocked when the results of his polygraph were admitted as evidence during a court hearing.

“The Constitution applies to everyone,” Maes said.  “It doesn’t apply to everyone except sex offenders.  The Constitution was designed to protect those that might be the most easily attacked by the government, even sex offenders.  You don’t see polygraphs in any other area of the law.  You can be the most prolific bad-check writer ever and you don’t have to take them, but you do if you’re a sex offender.”

The Denver Post has this companion article headlined "Professional polygrapher holds position of power on state’s sex-offender treatment board: Jeff Jenks’ firm will receive $1.9 million to test sex offenders in Colorado prisons as he sits on the Colorado Sex Offender Management Board"

May 14, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Thursday, May 11, 2017

Interesting report on plea realities impacting severity of sentences for sex trafficking offenses in Massachusetts

I just saw this recent Boston Herald article, headlined "Special Report: Sex traffickers evading tough prison sentences," which highlights the ways and reasons why a new Massachusetts law designed to toughen sentencing outcomes for certain sex offenders may not get consistently applied due to plea practices and related case-processing dynamics.  Here are excerpts:

Accused pimps and sex traffickers who could face decades behind bars under state law are often being allowed to plead down to less time and reduced charges, with more than half of convictions netting minimum sentences or less, according to a Herald review.

The softer sentencing patterns identified by a Herald survey of cases prosecuted by the attorney general and the state’s 11 district attorneys come five years after lawmakers passed a much-ballyhooed sex-trafficking law billed as a get-tough measure on criminals driving the sex trade.  But prosecutors and victim advocates say the sentences highlight the long-standing challenge in bringing complex cases reliant on vulnerable and sometimes reluctant victims.

The law called for sentences of five to 20 years for those convicted of trafficking, and up to life for those who prostitute minors.  But a Herald review of 32 trafficking cases statewide found 21 defendants in a position to serve the minimum five-year sentence or less, with three getting outright probation.  At least 18 times defendants took pleas to reduced charges — avoiding a human-trafficking conviction entirely. The average sentence of all reviewed cases fell between four and five-and-a-half years.  That’s a rate state Sen. Mark Montigny, the bill’s chief sponsor, slammed as “abysmal” — and exactly what he was trying to avoid when he drafted the law.

“Never once in my career have I put a mandatory minimum in a bill, but in trafficking of children, I put one in because I didn’t want to see plea-bargaining down,” said Montigny, who decried what he called a “societal ignorance” around the seriousness of the sex trade. “It’s unbelievable. … Not much has changed. And I’m so disappointed in that.”...

Prosecutors have been able to secure some long sentences under the new law.  Tyshaun McGhee and Sidney McGee, the first defendants convicted under the statute, got sentences of 10-to-15 and 10-to-12 years, respectively, after a Suffolk County jury found them guilty.  Ryan Duntin, who plead guilty in 2015, got a 10-year sentence.

But prosecutors defended their handling of the pleaded, low-sentence cases, noting they face a web of challenges. Frightened witnesses are often battling intense trauma or substance abuse, and sometimes are reluctant to go to trial, which makes scoring a jury conviction difficult.  Other times authorities have initially brought trafficking charges against girlfriends of the pimps, known as “bottoms,” who help recruit and intimidate victims.  But they sometimes are also seen as exploited victims themselves, leading prosecutors to later bring reduced charges.

Other circumstances have played a role. In Suffolk County, one accused trafficker pleaded to receive a four- to five-year sentence after one of his alleged victims died of an overdose before trial, dealing a blow to the case. In Bristol County, prosecutors said they were forced to dismiss one case because the victim wouldn’t cooperate.

Prosecutors are also wary of forcing victims, especially minors, to take the stand and risk re-traumatizing them, said Jake Wark, a spokesman for Suffolk District Attorney Daniel F. Conley. “When you’ve got victims terrified about what might come up when they take the stand ... and they’re on board with a guilty plea and we can get a 10-year or an eight-year sentence, that’s a successful prosecution,” Wark said....

Stephanie Clark, executive director of Amirah, an advocacy group that works with and houses trafficking victims, said she wasn’t surprised traffickers are getting softer sentences, given that cases hinge on victims who may back out.

May 11, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, May 08, 2017

New Jersey Supreme Court upholds polygraph exams for sex offenders under supervision

The New Jersey Supreme Court today issued a notable opinion rejecting challenges to the use of lie detector tests for sex offenders subject to parole or other community supervision. The opinion in J.B. v. New Jersey State Parole Board, No. 077235 (NJ May 8, 20107) (available here) gets started this way:

Petitioners L.A., R.L., and W.M. (parolees) challenge the constitutionality of the practices of the New Jersey State Parole Board (Parole Board) in administering polygraph examinations to sex offenders serving either parole supervision for life (PSL) or community supervision for life (CSL) sentences pursuant to N.J.S.A. 2C:43-6.4.

The parolees are all convicted sex offenders who have been released into the community subject to monitoring by the Parole Board.  For substantially similar reasons, they object to the administration of periodic polygraph examinations, which are required under the terms of their parole.  The parolees raise constitutional claims based on the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, and constitutional privacy interests.  They also contend that the Parole Board’s regulations are arbitrary and capricious.

The Appellate Division upheld the Parole Board’s use of polygraph examinations but directed the Parole Board to adopt revised regulations to explain more clearly that the machine-generated test results cannot be used as evidence to support independent criminal charges or to impose additional sanctions.

For the reasons set forth in this opinion, we affirm but modify the Appellate Division’s opinion.  We uphold the Parole Board’s use of polygraph testing with the same limitations as the Appellate Division, but add that the Parole Board’s regulations must be further supplemented to buttress the parolees’ Fifth Amendment right against self-incrimination.

May 8, 2017 in Sex Offender Sentencing, Technocorrections | Permalink | Comments (22)

Thursday, May 04, 2017

South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring

Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional."  The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."

Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring.  But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)

In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court.  As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:

The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders.  The requirement, therefore, is not unconstitutional.  If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts.  The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED

May 4, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Tuesday, April 18, 2017

US District Court finds multiple constitutional problems with local banishment of sex offenders

As reported in this local article from Wisconsin, a "federal judge Monday found unconstitutional Pleasant Prairie’s initial ordinance that largely banned registered child sex offenders from residing in the village."  Here is more about the context and the US District Court's ruling:

The village amended its ordinance three months after the offenders filed suit in June 2016, but U.S. District Judge J.P. Stadtmueller ruled that did not make moot the issues the offenders raised with the first ordinance.

In granting summary judgment to the nine plaintiffs, Stadtmueller found the village imposed restrictions on where the offenders could live without considering any studies or data regarding the safety risk that posed to other residents. “The village has admitted that the ordinance was based on its own conjecture about the dangers posed by sex offenders,” Stadtmueller wrote in the 19-page order.

Village Administrator Michael Pollocoff testified in a deposition that the ordinance’s goal was to reduce the number of child sex offenders living in the village. The ordinance may be counterproductive to citizen safety, as Pollocoff admitted that turning child sex offenders into outcasts had “more deleterious (or harmful) impacts.”...

Stadtmueller rejected the village’s claim that the new ordinance made a suit challenging the old one moot, stating the plaintiffs’ claims that they suffered stress as a result of the threat posed by the initial ordinance, the fear of homelessness and the difficulties in attempting to find a new residence. The plaintiffs can pursue damages on those claims at trial, which Stadtmueller set for May 15.

Mark Weinberg, a Chicago attorney who filed the suit, called the decision uncommon and important. “There are a lot of other communities in Kenosha County with similar ordinances. I hope this decision will encourage them to re-evaluate theirs,” he said.

Weinberg has a similar suit against the city of Kenosha ordinance pending in federal court, which he said “is more restrictive” than Pleasant Prairie’s initial ordinance. That suit is still in the discovery stage, he said....

Pollocoff acknowledged that the village amended its initial ordinance in response to the suit Weinberg brought and that no sex offenders had been cited under the ordinance.

The amended ordinance lowered the 3,000-foot prohibited zone to 1,500 feet, which still makes 60 percent of the village and 75 percent of the residences off limits to offenders.

The full ruling in this case can be downloaded here:  Download Stadtmueller SJ decison Pleasant Prairie

April 18, 2017 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4)

Monday, April 17, 2017

"Should NC sex offenders pay to be on registry?"

The question in the title of this post is the headline of this local article, which gets started this way:

Sex offenders would have to pay an annual fine to be listed on the state’s sex offender registry under a bill proposed by N.C. Rep. Ted Davis, R-New Hanover.  “There is a cost to continuing to have them on that registry,” Davis said. “The point of this is to get revenue to keep these people on the sex offender registry.”

House Bill 684 calls for sex offenders to pay an initial and annual fee of $90 to be on the registry.  The money would be directed to county sheriff’s offices to offset the costs associated with registering sex offenders, according to the bill.  Failure to pay the fee does not mean a registered sex offender isn’t listed on the registry -- the state attorney general’s office could sue to collect unpaid fees, according to the bill.

Many states require fees to be listed on the registry. In Tennessee, for example, the fee is $150 per year.

Cristina Becker, criminal justice debt fellow for the American Civil Liberties Union of North Carolina (ACLU), said the bill could amount to adding an additional burden to someone who has served their jail term, serves on probation, lives under the restriction of the sex offender registry and is already facing a host of other fees associated with their conviction.  “It can become a perpetual form of punishment,” she said of an annual fee.  Becker said that because many released offenders “are indigent, their probationary periods can be extended for as long as they owe money.”

April 17, 2017 in Fines, Restitution and Other Economic Sanctions, Sex Offender Sentencing | Permalink | Comments (18)

Split Second Circuit panel declares within-guideline child porn possession sentence of 225 months "substantively unreasonable"

A dozen years after Booker, the reversal of any federal sentence as substantively unreasonable is still quite rare and notable. Today, a Second Circuit panel has issued such a rare and notable decision in US v. Jenkinss, No. 14-4295 (2d Cir. April 17, 2017) (available here). Here are excerpts from the start and heart of the majority opinion:

A jury found Joseph Vincent Jenkins guilty of one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1), based on the government’s proof at trial that Jenkins owned a collection of child pornography and brought it across the U.S.-Canada border on the way to a family vacation for his personal viewing.

The United States District Court for the Northern District of New York (Glenn T. Suddaby, Chief Judge) imposed concurrent sentences of 120 months for the possession count, the statutory maximum, and 225 months for the transportation count, just below the statutory maximum of 240 months. The court also imposed a term of 25 years of supervised release. Jenkins challenges his conviction and the procedural and substantive reasonableness of his sentence....

Here, § 2G2.2 yielded a sentence that derived substantially from “outdated” enhancements related to Jenkins’s collecting behavior.  Meanwhile, the government has not alleged that he was involved in the production or distribution of child pornography or that he was involved in any child pornography community.  In particular, the government did not claim he used peer-to-peer sharing software, distributed images, or participated in chat rooms devoted to child pornography.  Nor does the government allege that he contacted or attempted to contact a child or that he engaged in any “sexually dangerous behavior” separate from his crimes of conviction.  Thus, here, as in Dorvee, § 2G2.2 cannot “bear the weight assigned it” because the cumulation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins’s conduct and other offenders whose conduct was far worse.  Cavera, 550 F.3d at 191. It was substantively unreasonable for the district court to have applied the § 2G2.2 enhancements in a way that placed Jenkins at the top of the range with the very worst offenders where he did not belong.

The full majority opinion in Jenkins has lots of substantive sentencing review discussion that defies easy summary and that merits review by anyone deeply engaged in post-Booker sentencing and appeals.  In addition, Judge Kearse has a small dissenting opinion which highlights the defendant's aggressive disagreement with his prosecution and concludes this way:

Given this record in which Jenkins, inter alia, disputed any justification or authority for prosecuting him, and argued that instead the children who were victims of the child pornography should have been prosecuted, the district court's concern for the likelihood that, without a lengthy prison term, Jenkins would re-offend was not unreasonable, and I cannot conclude that the imposition of the prison term that was no higher than midway between the top and bottom of the Guidelines range "cannot be located within the range of permissible decisions."

April 17, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

Saturday, April 15, 2017

Utah judge under fire for calling former bishop "good man" in course of his rape sentencing

As reported in this local article, "complaints are mounting against a Utah County judge who earlier this week praised a former Mormon bishop before sending him to prison for sexually abusing two women." Here are the details:

Fourth District Judge Thomas Low on Wednesday became emotional as he handed down a prison sentence to Keith Robert Vallejo, whom a jury convicted of 10 counts of second-degree felony forcible sexual abuse and one of count of object rape, a first-degree felony.  "The court has no doubt that Mr. Vallejo is an extraordinary, good man. But great men," the judge said Wednesday before taking a long pause, "sometimes do bad things."

Two women testified at the trial that Vallejo had inappropriately touched them during separate stays at his Provo home in 2013 and 2014.

Julia Kirby — who was 19 when Vallejo, her brother-in-law, abused her — told The Tribune after the sentencing that she was shocked by the judge's words to her abuser. Now, she plans to file a judicial complaint against him. And she's not the only one.

Restore Our Humanity, a Utah civil rights group that has launched an initiative to help sexual assault victims, will also file a complaint against Low.  Director Mark Lawrence said Saturday that Low's comments showed "absolute disregard" for Kirby, who was sitting in the courtroom that day.  "He completely disregarded her," Lawrence said. "He did something that we see happening over and over from position in authority dealing with these kind of cases: Making the perpetrator into the victim, showing sympathy and praise for the perpetrator and trying to make him into the victim. It's completely inappropriate."

Lawrence said he expects to file the complaint after reviewing transcripts of Low's comments this next week. He said the goal of the complaint is not to disbar Low, but to have him sanctioned and perhaps go through training to better understand sexual assault victims.  "There are some people who would think that we're making a big issue out of this," Lawrence said. "But this isn't a simple misdemeanor or victimless crime.  Sexual assault cannot be taken lightly, and everyone must stand up for these victims and survivors."

Criticism of Low initially began in March, after The Tribune published a story about Low's decision to allow Vallejo to remain free on bail pending sentencing and return home to his wife and eight children — even after the jury handed down the guilty verdicts at the February trial.  Kirby said last month that she felt the decision indicated that Low did not believe that she and the other woman had been abused. Low reversed that decision during a March 30 hearing, and Vallejo had been at the Utah County jail until his Wednesday sentencing.

Jennifer Yim, the executive director of the Utah Judicial Performance Evaluation Commission, told the Associated Press that the commission has received roughly 40 emails, six voicemails and some Facebook messages about Low's handling of this case since late March.

Ryan McBride, the prosecutor on the case, said Low's comments were inappropriate and said it may have come in response to more than 50 character letters about Vallejo, most of them detailing the good things he has done.  The defendant's brother spoke at the hearing and compared Vallejo to Jesus in making the argument that he was wrongly convicted, McBride noted. "I don't think it's wrong to acknowledge the good things that someone has done in their lives," the prosecutor told The Associated Press. "But I think whenever you do that in a case like this, you've also got to say, 'But it doesn't excuse what you've done.' "

Low on Wednesday sentenced Vallejo to concurrent sentences of one-to-15 years in prison for each of the second-degree felonies, and a five-years-to-life term for the object rape charge.

April 15, 2017 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, April 13, 2017

Florida judge imposes 100 years in prison for child porn possession for first offender claiming innocence

This local article about a state sentencing in Florida, headlined "Man, 37, sentenced to 100 years for child porn conviction," reports on a remarkably severe sentence handed down yesterday. Here are the details:

A 36-year-old St. Johns County man is looking at spending the rest of his life behind bars after Circuit Court Judge Howard Maltz sentenced him to 100 years in prison Wednesday morning. The sentencing came nearly two months after a jury found Jesse Graham Berben guilty on 20 counts of possession of child pornography at the end of a two-day February trial.

Berben, who maintained his innocence even through his sentencing hearing Wednesday, was arrested by St. Johns County Sheriff’s Office detectives in April 2015 after authorities obtained a search warrant for his Washington Street apartment — where he was living with his father at the time — and finding files containing the pornography on his computer.

His arrest report indicates that Berben denied knowing anything about the files or how they ended up on his computer. While he admitted to having a peer-to-peer file-sharing program that he used to download music, he denied using his computer to keep or download child pornography and said that if such files were found that it must have been compromised in some way.

Berben’s attorney, Tom Cushman, said after the sentencing that his client had maintained his innocence to him from the day that they first met, and that Berben had been offered a plea agreement from the state that would have netted him a prison sentence of about 5 years, “but he refused to plead because he said he was not guilty and he wasn’t going to plead guilty to something he didn’t do and become a registered sex offender with it.”

The sentence he ultimately received was more than four-times the “lowest permissible” sentence Maltz could have handed down based on sentencing guidelines submitted in court Wednesday (the maximum sentence was life in prison). It was also beyond even what Assistant State Attorney Mitch Bishop asked for while standing in for his colleague Chris Ferebee, who prosecuted the case.

Bishop, in his remarks before sentencing, said that the images — most of them movie files — found on Berben’s computer depicted children, some as young as 5-years-old, engaged in various sex acts. He pushed back on the notion, expressed by some, that merely possessing such images is not nearly as bad as carrying out the acts depicted.

“The problem with that is that viewing these images, possessing these images creates a market for someone else to produce them,” he said. “I don’t think that point should be overlooked.” Berben, he argued, not only downloaded the files but kept them in the file sharing program, making them available to others.

Bishop asked Maltz for a sentence that would include the rest of Berben’s “meaningful life,” arguing that someone who is “sexually gratified by” or even “sexually curious” by such images does not possess much “rehabilitative potential.”...

Cushman, citing his client’s 10 years of military service and lack of any criminal record, asked Maltz to consider something far less than Bishop asked for, and pointed out that the sentencing guidelines for the possession of child pornography made his client eligible for a punishment “possibly greater than if he’d actually committed the act.”...

Maltz, though, citing the images seen at the trial, called the case “quite troubling” and said he agreed with the state’s argument against any notion that possession of the images is a victimless crime. “I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence,” he said.

Maltz sentenced Berben to five years in prison for each of the 20 counts, to be served consecutively. Cushman said Berben plans to appeal the sentence.

I am pretty sure that Florida lacks any general parole provisions, so the defendant in this case is certain to die in prison if his convictions or sentence is not modified on appeal.  Notably, a somewhat similar case from Florida a few years ago, the Vilca case discussed here where an LWOP sentence was imposed for child porn possession, had convictions reversed based on a discovery violation as noted here.  Also, in a similar case from South Dakota, the Bruce case discussed here, the South Dakota Supreme Court found a 100-year prison sentence for child porn possession constitutionally excessive.

It will be interesting to see if this case might get the level of attention that some others involving extreme prison terms sometimes do.  And it will be interesting to see how the Florida courts engage with these matters on appeal. 

April 13, 2017 in Examples of "over-punishment", Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (23)

Thursday, April 06, 2017

Federal district judge declares unconstitutional Arizona law requiring defendant to prove lack of sexual intent for contact with child

A helpful reader alerted me to this new Slate article, headlined "Federal Judge Rules Arizona’s Diaper Changing Child Molestation Law Is Unconstitutional," reporting on a notable new federal district court ruling concerning a remarkable Arizona criminal law. The start of the Slate article provides the background and links to relevant rulings:

Last September, the Arizona Supreme Court issued a stunning decision interpreting the state’s child molestation law to criminalize any contact between an adult and a child’s genitals. In a 3–2 decision, the court found that the law encompassed entirely innocent conduct, such as changing or bathing a baby.  Arizona, the court held, could convict an adult for touching an infant’s genitals — which carries a prison sentence of five years — without proving sexual intent.  Instead, under the law, the accused had the burden of proving that he had no sexual intent to a jury and by a preponderance of the evidence.  As the dissenters noted, the ruling turned “parents and other caregivers” in the state into “child molesters or sex abusers under Arizona law.”

Reason, however, has now prevailed. Last week, a federal judge ruled that the Arizona statute, as interpreted by the state Supreme Court, is unconstitutional. In a lengthy decision, U.S. District Judge Neil V. Wake cogently explained why the law violates the Due Process Clause of the 14th Amendment, vindicating the two justices who dissented on those grounds in September.  He also reminded Arizona that parents have a constitutional right to care for their children — a right the state may not interfere with by criminalizing hygienic care.

The basic flaw in the Arizona law is pretty conspicuous. According to the statute, an individual is guilty of child molestation if he “intentionally or knowingly … touch[es] … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”  Notice something strange there?  Despite calling itself a child molestation statute, the law does not require the “touching” to be sexual. Thus, a caregiver who “intentionally or knowingly” touches an infant’s genitals while changing his diaper is clearly guilty of violating the law. No other state save Hawaii does not require sexual intent for a child molestation offense.

Arizona defended its statute by noting that the defendant could still assert “lack of sexual motivation” as an “affirmative defense” at trial — requiring him to prove his benign intent “by a preponderance of the evidence.”  The Arizona Supreme Court was satisfied with this loophole, holding that it rendered the law constitutional.  Wake was not so easily fooled. Under the Due Process Clause, Wake noted, the government carries the burden of proving each element of a crime beyond a reasonable doubt.  Yet the Arizona law shifts the burden onto the defendant, forcing him to disprove “the very thing that makes child molestation child molestation.”

That requirement, Wake explained, “violates the Fourteenth Amendment’s guarantees of due process and of proof of guilt beyond a reasonable doubt.”  Due process does not permit Arizona “to remove the essential wrongfulness in child molestation and place the burden of disproving it upon people engaged in a wide range of acts, the vast majority of which no one could believe the state meant to punish.”  Indeed, Arizona cannot lawfully punish “the vast majority” of conduct swept up by the statute.  The U.S. Supreme Court has found that the Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”  Therefore, Wake concluded, Arizona may not criminalize “constitutionally protected … innocent conduct” such as “diapering and bathing infants.”

April 6, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13)

Wednesday, April 05, 2017

"Criminological Perspective on Juvenile Sex Offender Policy"

The title of this post is the title of this short new article authored by Franklin Zimring available via SSRN. Here is the abstract:

Persons under 18 are in the very early years of sexual maturity and lack both experience and perspective.  When juveniles commit sexual offenses, the behavior is typically not violent and most often involves conduct only referred to authorities because of an age difference between the offender and the victim.  Rates of future sexual offending in later years are quite low for most juvenile sex offenders and on current data the presence or absence of a juvenile sex offense is not a significant predictor of sexual offending in young adulthood.  Under these circumstances, requiring registration and public notification of juvenile sex offenders is very poor crime control policy as well as gross injustice to the juvenile offender.

April 5, 2017 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Sunday, April 02, 2017

"Briefing the Supreme Court: Promoting Science or Myth?"

The title of this post is the title of this new timely essay authored by Melissa Hamilton now available via SSRN. Here is the abstract:

The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders.  An issue that has arisen in the case is the state’s justification for the ban.  North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes.  The collective states contend that these three claims are supported by scientific evidence and common sense.  This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.

April 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Science, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, March 24, 2017

Former Penn State Prez convicted of single misdemeanor court of child endangerment for role in Sandusky sex offense scandal

As reported in this local article, "Graham B. Spanier, the former Pennsylvania State University president once considered one of the nation’s most prominent college leaders, was convicted Friday of endangering children by failing to act on signs that Jerry Sandusky was a serial sex predator." Here is more (with key sentencing factors highlighted):

After nearly 12 hours of deliberation, the jury of seven women and five men found Spanier guilty of a single misdemeanor count of endangerment. He was acquitted of a second endangerment count, as well as a felony count of conspiracy.

Still, the guilty verdict was a stunning blow to Spanier, 68, who had long proclaimed his innocence, and to his supporters, who had fiercely defended him and accused prosecutors of overreaching and unfairly staining the university. Many, including his wife, Sandra, a Penn State English professor, were in the Dauphin County Courtroom to hear the verdict. Spanier didn't appear to react when the verdict was read in a hushed courtroom.

Prosecutors said he agreed in 2001 with two Penn State administrators at the time, Athletic Director Tim Curley and Vice President Gary Schultz, not to report assistant coach Mike McQueary's claim that Sandusky was caught after hours with a young boy in a campus locker-room shower.

Pennsylvania Attorney General Josh Shapiro, who this year took over the office that spent had nearly a decade investigating and prosecuting the Sandusky case, said the verdict showed no one is above the law. "There are zero excuses when it comes to failing to report the abuse of children to authorities," he said.

Spanier's lawyer, Sam Silver, said they were heartened by the jury's acquittal on two counts and would appeal the guilty verdict on the third. That count had originally been a felony count, but jurors downgraded it to a misdemeanor.

Emails show that the three men knew Sandusky, a longtime assistant to head football coach Joe Paterno, had been investigated by university police after a similar claim in 1998. They first decided to report the 2001 incident to child-welfare authorites, but then changed that plan. Instead, they agreed to talk to Sandusky, bar him from bringing boys on campus, and share the report with the president of Second Mile, the charity Sandusky started for vulnerable children.

Sandusky sexually assaulted at least four more children after the 2001 incident, including another boy in a campus shower the next year, jurors were told. That victim was among the witnesses who testified this week. Both Schultz and Curley pleaded guilty and testified for the prosecution, although a deputy attorney general told jurors in her closing argument that they were not the government's star witnesses.

Spanier opted not to testify. His lawyers argued that the prosecution didn't present any evidence that Spanier knew Sandusky was a child sex abuser or that he knowingly conspired to cover up a crime. Spanier, who rose to national prominence as Penn State's leader for 16 years, has maintained that he acted appropriately in 2001 based on the information he had at the time. He contends he was told by his lieutenants that Sandusky's behavior with the boy in the shower amounted to "horseplay."

Followers of federal sentencing know that a jury's acquittal on some but not all counts may sometimes not be a huge sentencing benefit to defendants given that sentencing guideline recommendations can be based on acquitted and uncharged conduct established by merely a preponderance of the evidence.  But the impact of the split verdict in this high-profile state case is seemingly quite significant because the defendant is now only facing sentencing on a single misdemeanor count (which I presume means he could not get more than a year in jail).

I find it quite interesting (and somewhat curious) that a jury apparently has authority under Pennsylvania law to take a count that "had originally been a felony count" and decide it should be "downgraded to a misdemeanor."  This strikes me as fundamentally a sentencing decision being made by a jury, and as an interesting way for the jury in this particular case to send a (mixed) message about the defendant and his criminal activity.

March 24, 2017 in Celebrity sentencings, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, March 22, 2017

Unanimous New Jersey Supreme Court rejects "categorical Internet blackout" for sex offender

As reported in this local article, headlined "N.J. Supreme Court tosses 'total' internet ban for sex offender," the top court in the Garden State issued a significant ruling yesterday concerning on-line restrictions on sex offenders. Here are the very basics from the press report:

New Jersey's highest court on Tuesday threw out a state-sanctioned ban on internet use for a convicted sex offender, finding it was an arbitrary infringement on the man's rights.

In a unanimous decision, the state Supreme Court found the state Parole Board had improperly issued a "near-total" internet ban for the man, identified only by the initials J.I., who was subject to lifetime supervision after pleading guilty to charges he sexually abused his three daughters.

Calling internet access a "basic need" of modern life, the justices ruled that state authorities could only revoke it after holding a formal hearing to determine if there was a legitimate public safety reason to do so.

The lengthy ruling in J.I. v. New Jersey State Parole Board, No. A-29-15 (N.J. March 21, 2017) (available here), gets started this way:

Today, the Internet plays an essential role in the daily lives of most people -- in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender.  In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose.  The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.

After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes.  The District Parole Supervisor justified the ban based not on J.I.’s conduct while on community supervision for life, but rather on his conduct years earlier -- the accessing of pornography sites and the possession of pornography -- that led to a violation of his parole.  A Parole Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device.  The Parole Board upheld that determination and denied J.I. a hearing.  The Appellate Division affirmed.

We now reverse and remand to the Parole Board. Conditions imposed on CSL offenders -- like those imposed on regular parolees -- are intended to promote public safety, reduce recidivism, and foster the offender’s reintegration into society.  Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders.  We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban, after J.I.’s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.’s computer.  After the imposition of the total ban for J.I.’s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout.  The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion.  The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.

March 22, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Friday, March 17, 2017

"Good, Bad and Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape Laws Against the Protected Class"

The title of this post is the title of this new article authored by Anna High that a helpful reader flagged for me. Here is the abstract:

This article considers the question of whether statutory rape laws can and should be used against members of the class they were designed to protect.  Many commentators have argued that meaningfully consensual sex among similarly situated and sufficiently mature teenagers should be beyond the scope of strict liability rape laws, but the question becomes more fraught in the context of the “contested outer limits” of adolescent sexuality — sexual contact among children and adolescents that offends social norms, leads to harmful outcomes or appears to be exploitative.  What are the implications of using statutory rape laws against minors to target “bad sex”?

I contend that even in relation to “bad sex,” there are serious policy and constitutional objections to the use of statutory rape laws against a member of the class they are designed to protect.  In jurisdictions without all-encompassing age-gap provisions, the response to sex among adolescents needs to be reformulated to ensure that the use of statutory rape laws against minors is confined to cases involving wrongful, as opposed to mere bad, sex, and is predicated on a clear and objective definition of exploitation, as opposed to mere fornication, as the punitive target.

March 17, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13)

Thursday, March 09, 2017

"Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation"

2378_regThe title of this post is the title of this notable new book authored by Michael Perlin and Heather Ellis Cucolo which provides a fitting follow-up to prior posts in this space this week concerning problems with sex offender recidivism data and expanding use of crime registries. Via the publisher's website, here is a summary of the book's coverage:

Convicted sexually violent predators are more vilified, more subject to media misrepresentation, and more likely to be denied basic human rights than any other population. Shaming the Constitution authors Michael Perlin and Heather Cucolo question the intentions of sex offender laws, offering new approaches to this most complex (and controversial) area of law and social policy.

The authors assert that sex offender laws and policies are unconstitutional and counter-productive. The legislation largely fails to add to public safety-even ruining lives for what are, in some cases, trivial infractions. Shaming the Constitution draws on law, behavioral sciences, and other disciplines to show that many of the "solutions" to penalizing sexually violent predators are "wrong," as they create the most repressive and useless laws.

In addition to tracing the history of sex offender laws, the authors address the case of Jesse Timmendequas, whose crime begat "Megan's Law;" the media's role in creating a "moral panic;" recidivism statistics and treatments, as well as international human rights laws. Ultimately, they call attention to the flaws in the system so we can find solutions that contribute to public safety in ways that do not mock Constitutional principles.

March 9, 2017 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21)

Tuesday, March 07, 2017

Reviewing the ugly backstory of SCOTUS dicta on sex offender recidivism

Today's New York Times has this intriguing new Sidebar article by SCOTUS reporter Adam Liptak under the headline "Did the Supreme Court Base a Ruling on a Myth?".  Here are excerpts:

Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders. “This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.

The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.

But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.

He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department. The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.

The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.

That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal....

A 2014 Justice Department report found ... that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals. In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years....

Lower courts generally accept what the Supreme Court says. That is true not only about the law but also about facts subject to independent verification.  Last year, though, the federal appeals court in Cincinnati gently suggested that the Supreme Court had taken a wrong turn in its 2003 decision in Smith v. Doe. Judge Alice M. Batchelder, writing for a unanimous three-judge panel, described “the significant doubt cast by recent empirical studies on the pronouncement in Smith that ‘the risk of recidivism posed by sex offenders is “frightening and high.’”  The appeals court struck down a particularly strict Michigan sex-offender law as a violation of the Constitution’s ex post facto clause, saying it retroactively imposed punishment on people who had committed offenses before the law was enacted.  

The state has asked the Supreme Court to consider the case, Does v. Snyder, No. 16-768. The first paragraph of its petition says that the risk of recidivism “remains ‘frightening and high.’”  The constitutional question in the case is interesting and substantial.  And hearing the case would allow the court to consider more fully its casual assertion that sex offenders are especially dangerous.

March 7, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Thursday, March 02, 2017

"First, They Came for the Sex Offenders … "

The title of this post is the headline of this Slate commentary authored by Perry Grosssman that discusses Packingham v. North Carolina, the First Amendment case heard by the Supreme Court earlier this week (basics here).  The sub-headline summarizes the piece's themes: "We must speak up for the rights of those on the fringes of society. The Supreme Court’s ruling on sex offenders’ First Amendment rights will signal how much protection we can all expect."  Here are excerpts from the ends of an extended discussion of the case and its context: 

Looming in the background of the court’s consideration of this case are the Trump administration’s recent attacks on the First Amendment, minority rights, judicial independence, and the rule of law itself.  Though it’s a much different First Amendment context, President Trump’s executive order restricting travel by Muslims from seven countries is also a grossly overbroad restriction on a politically vulnerable minority that was enacted thanks to fearmongering, not evidence.  As lower federal courts enjoined the executive order, President Trump attacked the legitimacy of those judges — who then received threats to their safety — while members of his administration implied that the courts had no right to question the president’s judgment on matters of national security.  Factor in Trump’s claim that he was championing free speech when he threatened to withhold federal funds from UC–Berkeley after it canceled an event featuring Milo Yiannopoulos, and his promise to “open up our libel laws” to permit more lawsuits against the press, and it’s clear that the president’s guiding mode of constitutional interpretation is not originalism, but solipsism.  The president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t.  This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.

Go to any protest these days and you’re sure to see a sign invoking the words of Martin Niemöller, a Lutheran pastor who opposed the Nazis during the Second World War by famously stating, “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.”  The message is simple but powerful: Speak up for the rights of those on the margins of society or you might yourself on the other side.

Court battles over the First Amendment have been frequently fought on behalf of unpopular groups as a means of preventing encroachment upon the rights of the rest.  Justice Stephen Breyer recalled this heritage during argument when he pointed to criminal laws directed at prohibiting communists from advocating for the overthrow of the United States government that had been struck down 60 years ago.  It is difficult to imagine a less popular group than registered sex offenders.  But speaking up for their rights now is critical at a time when the administration has shown its eagerness to brand people with whom it disagrees as “enemies” and to strip rights from politically vulnerable groups like transgender students.  And it has the fringe benefit of being a good strategy for making sure “they” don’t come for you too.

March 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (10)

Monday, February 27, 2017

"How Trump's Twitter use could help bring down NC sex offender law"

The title of this post is the catchy headline of this news article providing a summary of today's Supreme Court oral argument in Packingham v. North Carolina, which involves a First Amendment challenge to a North Carolina law a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites.  Here are excerpts from the press account:

A Supreme Court justice pointed to President Trump's use of Twitter during arguments in a challenge to a North Carolina law that forbids registered sex offenders from using social media.

The law, Justice Elena Kagan said, makes it illegal for a group of people to communicate with the president using his favored form of communication. "This has become a crucially important channel of communication," Kagan said.

The justices heard oral arguments Monday in Packingham v. North Carolina.  Lester Packingham is a registered sex offender who posted a statement on Facebook celebrating the dismissal of a traffic ticket.  Police in Durham, N.C., indicted him for breaking the state's 2008 law that bans sex offenders from using social media that allows children to be members, including Facebook, Twitter and Instagram....

Questions from Kagan and the three other liberal justices suggested they are concerned the law overly restricts free speech. It "forecloses some of the most important channels of communication in our society," Justice Sonia Sotomayor said.

Kagan said in addition to blocking a channel of communication with President Trump, the ban also restricts how sex offenders interact with lawmakers and with religious groups. "These sites have become embedded in our culture as a way to exercise constitutional rights," Kagan said.

Senior Deputy Attorney General Robert Montgomery for North Carolina said sex offenders have alternative ways to express their first amendment rights. The law, he said, is a protection for children against sex offenders who have a high rate of repeat offenses....

Conservatives on the court asked few questions.  Chief Justice John Roberts noted the lack of precedent in a case dealing with social media. Justice Samuel Alito said perhaps the law could be narrowed to impact fewer websites.

Amy Howe at SCOTUSblog here has a more fulsome account of the argument under the heading "Justices skeptical about social media restrictions for sex offenders."  This full transcript of the SCOTUS oral argument is available here.

February 27, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Sunday, February 26, 2017

SCOTUS considering cases involving sentencing and collateral consequences in coming days

This coming week the Supreme Court hears arguments in three cases that ought to be over interest to sentencing fans. Here are the basics of the cases in the order they are to be consider in the next two days, with descriptions and links to argument previews via SCOTUSblog:

Packingham v. North Carolina

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites — including Facebook, YouTube, and nytimes.com — that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

Argument preview: Court to consider social media access for sex offenders 

Esquivel-Quintana v. Sessions

Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act — and therefore constitutes grounds for mandatory removal.

Argument preview: Removal of an immigrant for “sexual abuse of a minor” 

Dean v. United States

Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

Argument preview: Justices to consider limits of sentencing discretion under advisory guidelines

For all sorts of reasons, Packingham seems likely to get the most attention of this bunch. But Dean could provide to be a sleeper post-Booker case for federal sentencing fans.

February 26, 2017 in Booker in district courts, Collateral consequences, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Wednesday, February 15, 2017

Repeat rape and murder for sex offender subject to monitoring shows limits of GPS as incapacitation tool

This article in my local paper about a local murder that has received a lot of attention provides a cold reminder that GPS monitoring typically cannot and will not alone serves as fool-proof crime prevention tool.  The article is headlined "Ex-convict charged in slaying of Ohio State student was on GPS monitoring," and here are the details:

A sex offender who is accused of abducting, raping and killing an Ohio State University student was on GPS monitoring. Brian L. Golsby, 29, who was released from state prison on Nov. 13 after serving six years for robbery and attempted rape, had special conditions of supervision under his post-release control for five years.

"I can confirm that he was on GPS monitoring, which is not uncommon due to the fact that he did not have a permanent residence upon his release," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Golsby was living in a state-contracted residential housing program that granted him a temporary residence.

Grove City police arrested Golsby after 21-year-old Reagan Tokes' body was found on Feb. 9 near the entrance of Scioto Grove Metro Park. Detectives say Golsby abducted Tokes after she left work Feb. 8 in the Short North.  He forced her to withdraw $60 from an ATM, raped her and fatally shot her twice in the head before dumping her body. Investigators already had Golsby's DNA from prior offenses and matched it to a cigarette butt left in Tokes' car. Tokes was set to graduate from OSU in May with a degree in psychology.

Smith said state law prevents her from going into details of the conditions Golsby had to follow.  All offenders are prohibited from carrying guns, but it's unclear whether travel restrictions were placed on Golsby in addition to what sex offenders have to abide by.  "DRC contracts with community providers for electronic monitoring and GPS services. The level of monitoring depends on the offender and circumstances for which the service is requested," Smith said.

She would not specify which vendors are used or describe the level of monitoring that offenders like Golsby could have. It's unclear whether he triggered an alert while wearing the bracelet, or, if he had discarded the monitor, how parole officers would have been notified. It's also unknown how often parole officers check the movements of offenders assigned to them, or how far back the monitor records travel. "DRC is not providing specifics relative to this case due to the ongoing criminal investigation," Smith said.

Columbus police have been looking at Golsby as a possible suspect in a series of attacks on women in German Village and near Nationwide Children's Hospital.

February 15, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (28)

Tuesday, February 14, 2017

Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics

This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:

Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear.  He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.

About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit.  She introduced him to her younger sister, age 13.  This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.

The two 13-year-olds started skyping Zachary together.  Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance.  By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear.  Her face was not visible, nor were her private parts.

That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist.  Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature.  Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.

Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone.  All this, from five underwear pictures.  If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.

Instead, he took a plea bargain.  This is what prosecutors do: scare defendants into a deal.  Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.

Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender."  The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months.  "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."

As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce.  Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor.  The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....

Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.

Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry.  But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.

I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.

UPDATE:  A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above.  This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.

February 14, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20)

"Maryland prosecutor sentenced for hotel sex acts in front of glass door in Ocean City"

The title of this post is the headline of this Washington Post article, which sort of has a Valentine's Day theme.  I recommend the article if full in order to get the "full monty" details, but here are highlights from the start of the article and its update:

It’s Valentine’s Day, and the top prosecutor in Cecil County, Md., having already celebrated his love with his wife in full view of numerous others, will stand before a judge today and receive a criminal sentence for such public displays of affection.

Edward “Ellis” Rollins III (R) was arrested in June for indecent exposure and disorderly conduct, for having sex, standing naked and other related acts at the sliding glass door of his tenth-floor Ocean City, Md., hotel room, while four tourists, a security officer and two Ocean City police officers watched.  He was convicted by a Worcester County, Md., jury after a two-day trial in December. Rollins, 61, likely will not face jail time for the two misdemeanor convictions.... He did remove himself from consideration for a circuit court judgeship, which he was scheduled to interview for with the governor shortly after his arrest, on a bench where both his father and grandfather served.

Rollins did not return phone and email messages Monday, and his attorney, Cullen Burke, also did not return a call.  At trial, Rollins did not testify, but his lawyer did not deny that Rollins and his wife enjoyed various carnal relations next to the sliding glass door of their hotel room.  Burke described Rollins and his wife, Holly Rollins, as “still newlyweds” after six years of marriage, according to the Cecil Whig, and Holly Rollins testified she had no idea anyone was watching from the adjacent condominiums. Burke said there was 172 feet between the two buildings and that the Rollins’ hotel room “was a speck” in the vision of the tourists’ apartment.

But the four Pennsylvania women who spotted the activity, on two different days, felt it was much more visible than a speck. They returned to Ocean City and testified in detail about Rollins’ actions. It really wasn’t the sex so much as Rollins’ naked dancing and posing at the sliding glass door that truly offended the visitors, according to the media reports of their testimony. “You’re just sickening,” one woman turned and said to Rollins during her testimony. “I have nightmares because of you. I argue with my husband because it’s all I can talk about.”

UPDATE, 2:02 p.m.: Worcester County Circuit Judge Brian Shockley imposed a $1,000 fine and a 90-day jail sentence with all time suspended for Ellis Rollins, along with 100 hours of community service, 18 months of supervised probation and mental health treatment.  Worcester County State’s Attorney said he asked for a two-year sentence with 18 months suspended, which would have meant Rollins would have spent six months in the Worcester jail, but Shockley did not take that recommendation.

February 14, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (5)

Thursday, February 09, 2017

Noting the concerns prompted by aging sex offenders

This short local Ohio article, headlined "States look for solutions to growing number of aging sex offenders," provides yet another example of how the sex offender label has echoes throughout so many aspects of society. Here are excerpts from the piece:

As states like Ohio deal with a growing number of aging registered sex offenders, another state is examining what to do with elderly sex offenders when they are in need of nursing home care.  In Iowa, lawmakers are studying whether to establish a separate facility for sex offenders to keep them away from other nursing home residents.

A Dayton Daily News examination found numerous examples of lax oversight of sex offenders in nursing homes in Ohio.  This newspaper’s investigation found 136 sex offenders were living in 43 nursing homes in Ohio in October. It also identified potential problems with the safety net, from under-staffing at homes with offenders to a lack of information on the public registry used by facilities to make admission decisions.

The Iowa Senate Human Resources Committee this week approved a resolution which asks the state’s legislature to create a committee to study the establishment of a facility to care specifically for those who are sex offenders or are sexually aggressive.

Iowa, like Ohio, has no dedicated facility for housing sex offenders in need of long-term care.  “The lack of such a facility places other geriatric patients, residents, and tenants at risk for being sexually abused,” the Iowa resolution says.

The proposal suggests studying either establishing a new facility, or expanding an existing one to keep sex offenders or sexually aggressive individuals separate from the general nursing home population.

February 9, 2017 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (9)

Monday, February 06, 2017

Idaho judge includes celibacy for teen sex offender on intensive probation

As reported in this local article, after "sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation." Specifically:

“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” 5th District Judge Randy Stoker said.

The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.

Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said. Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.

The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”

The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”

Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.

But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law. “I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.” While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution. “I think if he appealed, he would win,” Sanders said.

Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition.  “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.

“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”

I have personally always viewed probationary conditions that prohibit alcohol more than a bit suspect, but I know that they are regularly imposed and have often been upheld when sufficiently linked to the offense of conviction. With that background, I think the prosecutor here has a reasonable basis for arguing that this celibacy condition could be upheld if challenged. Then again, even though sex and alcohol often are linked, some significant distinctions might be made in this context were there to be legal appeals by the defendant here.

February 6, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Wednesday, February 01, 2017

"Say no to restorative justice for sex offenders"

The title of this post is the headline of this notable commentary published in The Hill authored by Michael Dolce.  Here are some of the details:

The debate around the Senate’s possible confirmation of Betsy DeVos, President-elect Trump’s nominee for Education Secretary, should kick start a national discussion on how colleges and universities handle sexual assault.  Recently, much of that conversation has revolved around “restorative justice,” programs that aim to respond to misconduct or crime by redressing the harm inflicted on victims and the community, rather than simply punishing offenders.

As a victim of childhood sexual abuse myself and an attorney who now represents sexual assault survivors every day, I can say without doubt that restorative justice is not only horribly insufficient for handling sexual abuse but, in many cases, actually serves to leave an offender free to offend again.

Whether as an alternative or a supplement to traditional discipline, restorative justice programs require offenders to make amends with victims — often with apologies and mediation — and participate in reformative programs like anger management or cultural sensitivity training, measures rarely imposed by the criminal justice system.  In an education setting, employing these programs for offenses like racial harassment and alcohol misuse have had some success, leading to understandable calls from some criminal justice reform advocates and college administrators to expand their use to college sexual misconduct cases.

It’s true that our colleges and universities routinely fail victims of sexual assault, as last year’s abhorrent handling of the Brock Turner case at Stanford University reminded us.  It’s also true, as the Chicago Tribune reported late last month, that the future of campus sex assault investigations under President Trump are “uncertain,” particularly since GOP convention platform calls for a reduced federal government role in investigations of campus sexual assault.

But, for several important reasons, restorative justice is not the answer for handling sex offenders. First, this method only works if offenders feel empathy when confronted with the impact of their misconduct.

According to prominent forensic psychology researchers Drs. Daryl Kroner and Adelle Forth, about half of convicted sex offenders exhibit psychopathology, meaning they are incapable of feeling remorse or empathizing with their victims. Sex offenders are often skilled at manipulating others into believing they are safe, which helps them gain their victims’ trust before attacking....

Second, advocates for restorative justice programs in this context often make the flawed assumption that sex offenders are similar to repeat offenders of other habitual offenses like drunk driving. But while underage drinking and alcohol abuse are certainly a common problem on university campuses, alcohol does not turn a college student into a sex offender. In fact, according to the National Institute on Alcohol Abuse and Alcoholism, some offenders actually drink alcohol before committing sexual assault specifically to later justify their behavior. Relying on restorative justice to ‘treat’ this group would be a dangerous validation of their criminal deceit.

The third common argument – that schools might be safe relying on restorative justice methods in cases of sexual harassment that don’t involve physical assault – is risky at best. Those who sexually harass others are objectifying and dehumanizing their victims, behavior that is often a prelude to assaults....

The reality is that I believe the majority of sex offenders are largely incapable of empathy. Two-thirds of male sex offenders will re-offend if they are not treated and restrained as criminals. The consensus among mental health and criminal justice professionals is that most sex criminals cannot be reformed; they can only be monitored, controlled and contained.

These are people who look at the tears and agony on victims’ faces, show no mercy and then quickly move on to their next victim. Restorative justice can be a wonderful tool for certain types of offenses, but let’s not ask victims of sexual assault to suffer an even greater burden by making them take part in their attackers’ so-called “reformation.”

February 1, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (19)

Tuesday, January 03, 2017

Eighth Circuit panel reverses district court findings of substantive due process problems with Minnesota's sex offender commitment program

As reported in this local article, a "federal appeals court in St. Louis has reversed a lower-court ruling that Minnesota's sex-offender treatment program is unconstitutional — a major victory for the Minnesota Department of Human Services and a decision that could delay long-awaited reforms to the state's system of indefinite detention for sex offenders."  Here is more about the ruling and its context:

In a decision Tuesday, a three-judge panel of the Eighth Circuit Court of Appeals found that a class of sex offenders who sued the state failed to prove that the Minnesota Sex Offender Program (MSOP) violated their due process rights under the U.S. Constitution. "We conclude that the class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard," the court ruled.

In response, the lead attorney for a class of offenders who sued the state said he is considering an appeal to the U.S. Supreme Court, which must be filed within 90 days. "Justice was not done today," said Dan Gustafson, the attorney for the plaintiffs. "We're still considering what we are going to do but, as Governor Dayton said the other day, we are not going quietly into the night."

Minnesota confines more offenders per capita, and has the lowest release rate, among the 20 states that use civil commitment to confine sex offenders in treatment programs. Only 14 offenders have been conditionally discharged from the program in its more than 20-year history. Of those, seven are currently living in the community. Just one offender has been unconditionally discharged, and that did not occur until August.

In June 2015, federal Judge Donovan Frank in St. Paul, ruling in a lawsuit brought by a group of sex offenders, declared the program unconstitutional for confining offenders indefinitely, after they have already completed their prison terms, without a clear path toward release. The judge ordered state officials to conduct independent evaluations of the roughly 720 offenders confined at secure treatment centers in Moose Lake and St. Peter to determine if they still pose a public safety risk. He also ordered the state to develop less restrictive options for housing offenders in the community.

The unanimous Eighth Circuit panel ruling in this case is available at this link, and it gets started this way:

Class plaintiffs, civilly committed sex offenders, bring a facial and as applied challenge under 42 U.S.C. § 1983, claiming their substantive due process rights have been violated by Minnesota’s Civil Commitment and Treatment Act and by the actions and practices of the managers of the Minnesota Sex Offender Program (MSOP).  The Minnesota state defendants in this action are managers of MSOP — Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services; Kevin Moser, MSOP Facilities Director at Moose Lake; Peter Puffer, MSOP Clinical Director; Nancy Johnston, MSOP Executive Director; Jannine Herbert, MSOP Executive Clinical Director; and Ann Zimmerman, MSOP Security Director (collectively “state defendants”).  After several months of litigation, including a six-week bench trial, the district court found for plaintiffs and entered an expansive injunctive order.  The district court applied incorrect standards of scrutiny when considering plaintiffs’ claims, thus we reverse the finding of substantive due process violations and vacate the injunctive relief order.  We remand to the district court for further proceedings to address the remaining claims.

January 3, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, December 19, 2016

Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner

This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:

A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.

The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.

“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously.  Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.

The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:

The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline.  First, the sentence was within the parameters set by law and was therefore within the judge’s discretion.  Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant.  Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias.  The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both.  Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification. 

Some (of many) prior related posts on the Brock Turner case:

December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, December 01, 2016

Fourth Circuit panel rejects North Carolina's efforts to defend constitutionally hinky provisions of state sex offender rules

The Fourth Circuit handed down a notable opinion yesterday in Doe #1 v. Cooper, No. 16-6026 (4th Cir. Nov. 30, 2016) (available here).  In this ruling, the panel rejects arguments made on appeal by the state of North Carolina to try to overturn a district court's ruling about the unconstitutionality of key provisions of the state's sex offender laws.  Here is how the unanimous opinion gets started:

The State of North Carolina requires persons convicted of certain reportable sex offenses to register as “sex offenders.”  See N.C. Gen. Stat. § 14-208.6(4); id. § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).

John Does #1 through #5 (collectively, the “Does”) challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment.  The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14- 208.18(a)(2) and section 14-208.18(a)(3).  For the reasons set out below, we affirm the judgment of the district court.

Among many notable passages in this opinion, I found especially telling some of the discussion of the state's failure to provide any serious data or other evidence to support the broad restrictions on sex offender movements enacted into NC laws:

The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11.  But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof....

In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence.  In its brief, the State cites three North Carolina cases... [but] the State fails to explain how three cases, representing three individuals -- out of more than 20,000 registered North Carolina sex offenders -- provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions.

December 1, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Monday, November 07, 2016

"Global Overview of Sex Offender Registration and Notification Systems"

A helpful reader altered me to this interesting publication with the same title as this post.  The publication was produced by the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (known as SMART). Here is its introduction:

Sex offender registration and notification systems have proliferated around the world over the last twenty years. After the United States’ first national-level sex offender registration law was passed in 1994, 29 additional countries have enacted sex offender registration laws.  A handful of these systems are more analogous to what would be considered a CHRI (criminal history record information) database as opposed to a ‘registry’, but are included in this overview for the sake of thoroughness.

The following countries have laws governing sex offender registration systems at the national and/or provincial level: Argentina, Australia, Bahamas, Canada, Chile, Cyprus, France, Germany, India, the Republic of Ireland, Jamaica, Kenya, Maldives, Malta, New Zealand, Nigeria, Portugal, South Africa, South Korea, Spain, Taiwan, Trinidad & Tobago, United Kingdom and Commonwealth Nations (Bermuda, Gibraltar, Guernsey, Isle of Man, Jersey, and the Pitcairn Islands), and the United States.

The following countries have considered or are considering sex offender registration and notification laws, but such laws have not yet passed: Austria, Barbados, Belgium, Belize, Cayman Islands, Fiji, Finland, Hong Kong, Israel, Malaysia, Poland, Samoa, St. Lucia, Switzerland, United Arab Emirates, and Zimbabwe.

What follows in this SMART Summary is a brief snapshot of the sex offender registration and notification laws in each of the countries that have enacted such provisions, sequenced in chronological order of the first country in a continent or region to implement such laws.  Statutory references, where available, are provided. In addition, the footnotes contain additional references which might assist the reader in finding out more detailed information about the countries’ sex offender registration and notification provisions.

As this is a rapidly developing area of the law, and many statutes have not been officially translated into English, the reader is encouraged to check for the current versions of any nation’s provisions and consult official translations, rather than relying solely on this SMART Summary.

November 7, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, October 30, 2016

Mizzou State Representative wants to consider showing repeat sex offenders to execution chamber

As reported in this local article, headlined "State Rep. wants death penalty as option for repeat sex offenders," a local elected official has a notable idea for punishing certain sex offenders. Here are the details:

It’s the one issue in Jefferson City that State Representative Randy Pietzman says nobody likes to talk about. “This is not a popular topic to talk about if you’re just trying to get re-elected,” he said.  But that’s not going to stop him from tackling it head on because he says it concerns the safety of every Missouri child. “We need to change something. We need to do something to curb this problem,” he said.

And it’s especially relevant for Lincoln County, where the Republican is running unopposed for his second term this November. The rural county, about an hour to the northwest of St. Louis, has a disproportionately high number of sex offenders and sex crimes against children. “If you compare us with other counties in the surrounding area, per capita, we have substantially more sex offenders,” said Detective Sean Flynn with the Lincoln County Sheriff’s Office. “There’s something attracting them here,” Pietzman said.

But whatever the reason for the unwanted popularity, it’s having an impact on multiple levels. “It seems these crimes are impacting people across the socioeconomic spectrum,” Flynn said.... “It’s impacted the department in a way that my time is monopolized by this. Really, we’re at the point where we need more people to investigate,” Flynn said.

And some in law enforcement go a step further to say the situation might be beyond repair. Captain Michael Merkel with the Lincoln County Sheriff’s Office said, “I don’t think stopping it is an option. I think slowing it down is something we could do.”  One way of going about that, he said, is to strengthen the penalties statewide for what’s considered to be some of the most heinous crimes imaginable. “It’s not acceptable that somebody can pass a bad check and be punished more harshly than someone who has victimized a child,” Merkel said.

Capt. Merkel also suggests improving their ability to investigate child sex crimes. Right now, detectives in Missouri can only interview juvenile victims if their parents give permission.  And the problem?  “What we run into is we have a parent or family member who’s a suspect.  And they’re the only ones who can authorize the interview,” Merkel explained.

It’s a loophole in state law that Rep. Pietzman said could help his county, and the state, if it was closed. “We’re talking about our kids. If the punishment doesn’t match the crime, then it’s going to keep continuing,” he said.

That’s why, following our initial report, Pietzman is working on a number of reforms, including one that would make the death penalty a possible punishment for repeat offenders. “That seems cruel when you think about it," he said, "but you got to think about what these guys have done. We’re talking about grown men having sex with kids as young as 3- or 4-years-old.”

There are several cases and states that have pushed for similar measures, but capital punishment in America right now is almost exclusively reserved for the crime of murder. Pietzman said at the very least, he hopes to start a conversation in the legislature that some in law enforcement say is long overdue.

I am eager to help State Representative Randy Pietzman start this conversation about making repeat sex offenders eligible for the death penalty. The first critical point in such a conversation, however, has to be about the Supreme Court's Kennedy ruling which seemingly declared the death penalty unconstitutional for any and all crimes of rape. An argument might be developed that the Kennedy ruling applied formally addressed a first-offense child rapist, and so perhaps a capital statute focused on only the worst of the worst repeat child rapists could be legally viable (and, of course, because Eighth Amendment doctrines evolve perhaps Eighth Amendment precedents have less stare decisis force).

Also important to consider here is the concern expressed by Capt. Merkel about challenges he faces investigating child sex crimes. I suspect and fear that making some sex offenders eligible for the death penalty could actually end up aggravating rather than mitigating this problem as family members fearing a capital prosecution may be uniquely unwilling to cooperate with authorities.

October 30, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (31)

Saturday, October 29, 2016

SCOTUS takes up Booker/mandatory sentencing issue and two sex-offender collateral-consequences cases

I had a spectacular afternoon mostly off-line yesterday: I heard Sandy Levinson talk about his book on the Federalist Papers; I talked with my 1L students about a famous criminal case after an infamous disaster; I spoke at lengthy to a reporter about the prospects for federal criminal justice reform in 2017; I had great happy hours conversations with students, friend and family, followed by a spectacular burger at my favorite local gastropub; and I managed to stay awake for (most of) one of the all-time great modern World Series games.

What I did not manage to do until this morning, however, was remember that SCOTUS yesterday had a conference to consider new cases for its docket.  Helpfully, this SCOTUblog post reports on the five SCOTUS cert grants on the last Friday in October 2016, and three of the cases are sure to be worth sentencing fans' attention.  Here are the three grants as described by Amy Howe from SCOTUSblog, organized by me in order of "importance" for those most obsessed with modern sentencing systems: 

The facts of Dean v. United States read like a “true crime” novel, involving robberies of drug dealers in the Midwest. Levon Dean, the defendant in the case, was convicted under the Hobbs Act, a federal law that makes it a crime to “obstruct, delay, or affect commerce” through a robbery.  The justices today declined to review Dean’s challenge to his Hobbs Act convictions, but they agreed to weigh in on a separate question: the scope of a federal trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the Section 924(c) conviction.  Dean argued that the district court had the authority to impose a very short sentence — as little as one day — for his Hobbs Act convictions, to take into account the much longer sentence required by Section 924(c), but the lower courts disagreed.

Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor.  Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket.  The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law.  The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old.  The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.”  The lower courts agreed with the federal government, but now the Supreme Court will decide.

October 29, 2016 in Collateral consequences, Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Sunday, October 23, 2016

California judge imposes prison term of 1,503 years(!?!) on father who repeatedly raped daughter

As reported in this local article, a state judge in California gave new meaning to the term "mass incarceration" by imposing a prison sentence on a rapist that will not be completed until the year 3519.  Here are the details:

Fresno prosecutor Nicole Galstan asked a judge on Friday to sentence Rene Lopez to 1,503 years in prison for raping his teenage daughter over a four-year period, ending in 2013.  Judge Edward Sarkisian Jr. agreed, sentencing the 41-year-old Lopez to the longest-known prison sentence in Fresno Superior Court history.

It stands in stark contrast to recent high-profile sentencings in sexual assault cases such as six months for ex-Stanford swimmer Brock Turner and, just this week, 60 days for a Montana man convicted of felony incest for raping his 12-year-old daughter.

In announcing the punishment, Sarkisian told Lopez he violated a position of trust, engaged in violent conduct and is a “serious danger to society.” Sarkisian also noted that Lopez had never shown remorse and has blamed his daughter for his predicament.

Lopez, who sat shackled in the courtroom, sat silently, never acknowledging his daughter, who told Sarkisian that she feared her father. (The Fresno Bee does not name victims of sexual abuse.) “When my father abused me, I was young. I had no power, no voice. I was defenseless,” said the daughter, who now is 23 years old. She also told the judge that her father never has shown remorse for her pain and suffering....

In September, a jury found Lopez guilty of 186 felony counts of sexual assault, including dozens of counts of rape of a minor.  Galstan said the victim was first sexually abused by a family friend.  But instead of the father protecting his daughter, “he chose to turn her into a piece of property and use her to satisfy his sexual needs,” the prosecutor told the judge.

The victim was raped two to three times a week from May 2009 to May 2013.  Galstan said it ended only when the girl got the courage to leave him. Even then, her father would drive by her new home and later leave love songs on her message machine, the judge said....

At Friday’s hearing, Sarkisian read the date of each felony count, which included Lopez raping his daughter on Christmas and other holidays.  Before he announced the sentence, Sarkisian said Lopez turned down two plea deals. Before his preliminary hearing, if he had admitted his guilt, prosecutors would have recommended 13 years in prison. Lopez rejected the offer. Then before his trial, he was offered 22 years in prison if he admitted his guilt. Lopez declined that offer, saying he should be released from jail for the time he already had served, Sarkisian said.

“He ruined her teenage years and made her feel like it was her fault,” Galstan said in arguing for the maximum sentence.

Lopez, who did not testify in his trial, wrote in a letter to the judge that he didn’t get a fair trial and that his daughter lied on the witness stand. “It’s hearsay,” he says in the letter.  But Sarkisian told him that he received a fair trial and that the evidence was overwhelming.  In addition to the victim’s testimony, jurors heard entries from her diary in which she chronicled her father’s crimes against her, Galstan said.  And when she got pregnant from her father, he paid for the abortion, the judge said.

In addition to the prison sentence, Sarkisian said Lopez will have to register as a sex offender.

Though this defendant was convicted of extreme crimes that justified an extreme sentence, the decision of the prosecutor to seek and the judge to impose a term of 1,503 years in prison strikes me as silly and arguably counterproductive to the goal of helping all victims of sexual assault feel vindicated by the criminal justice system.  It is silly, I think, to impose upon a defendant a crazy-long-impossible prison sentence just for symbolic effect, just as a restitution sentence of, say, "one trillion, zillion, billion dollars" would be silly.  And this crazy-long-impossible prison sentence could, at least indirectly, make other victims of sexual assault whose victimizers were given much shorter sentences feel as though their harms were not entirely vindicated in their cases.

UPDATE: Over at his blog Simple Justice, Scott Greenfield has this effective new post titled "Rape, Incest And Retribution" to highlights how this case takes us from "the sublime to the ridiculous" as we reflect on what this case represents against the backdrop of other recent controversial sexual assault cases in California and Montana. In addition to recommending this post in full, I also recommend the comments there (as well as this funny button Scott provides if his post hurts your feelings).

October 23, 2016 in Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)

Saturday, October 22, 2016

Illinois Supreme Court upholds law requiring sex offenders to disclose internet identity information

As reported in this local Illinois article, the "state’s highest court has upheld a law that requires sex offenders to disclose information about their internet identities and websites."  Here is more about the ruling:

In a unanimous decision authored by Justice Charles E. Freeman, the Illinois Supreme Court held that a provision of the Sex Offender Registration Act survived First Amendment scrutiny because it bolsters the government’s interest in protecting the public without restricting more speech than necessary.

In an 18-page opinion issued this morning, the court critiqued a handful of federal district courts who have found similar statutes unconstitutional and wrote that although sex offender laws can have “a lasting and painful effect” on those they regulate, those consequences stem from the convictions rather than forced disclosure of their personal information.

The full ruling in Illinois v. Minnis, No. 119563 (Ill. Oct. 20, 2016), is available at this link, and it substantively starts and ends this way:

Section 3(a) of the Sex Offender Registration Act (Registration Act or Act) requires sex offenders to disclose and periodically update information regarding their Internet identities and websites. 730 ILCS 150/3(a) (West 2014). This information is subject to public inspection as provided by the Sex Offender Community Notification Law (Notification Law or Law) (730 ILCS 152/101 et seq. (West 2014)). The circuit court of McLean County entered an order finding that this Internet disclosure provision was overbroad in violation of the first amendment to the United States Constitution. U.S. Const., amend. I. The State appeals directly to this court. Ill. S. Ct. R. 603 (eff. Oct. 1, 2010). We now reverse the order of the circuit court and remand the cause to the circuit court for further proceedings....

We hold that the Internet disclosure provision survives intermediate scrutiny because it advances a substantial governmental interest without chilling more speech than necessary. Therefore, defendant has failed to establish that the Internet disclosure provision of section 3(a) of the Registration Act is facially unconstitutional because it is substantially overbroad in violation of the first amendment.

October 22, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (9)