Saturday, August 29, 2015

"Is It Ethical to Chemically Castrate a Child Sex Offender?"

The question in the title of this post is the headline of this RYOT piece discussing an alternative sentencing debate afoot in Australia.  Here is how the piece gets started (with links from the original):

When it comes to its convicted child sex offenders, Australia is considering nipping the problem in the bud, literally.  The country may soon require perpetrators to be chemically castrated instead of sent to prison, VICE News reports.

New South Wales’ justice minister, Troy Grant, would like the treatment to be made mandatory since the rate of recidivism for sex offenders is so high, according to the Australian Broadcasting Corporation.  About 17 percent are arrested for a similar crime within two years of being released from prison.  Currently, sex criminals can volunteer for treatment, but are not required to undergo it.

Child sexual abuse runs rampant in Australia.  Thirty percent of the population reports having fallen victim to it in their lifetime, 10 percent of whom say the abuse was “severe,” a report by the Australian Institute of Criminology found.

Anti-libidinal treatment is nothing new.  In fact, courts in Western Australia and Victoria can already mandate libido-reduction treatment to convicts who have been deemed dangerous by prison standards.

In the US, child sex offenders could potentially be sentenced to life in prison; many opt to undergo anti-libidinal treatment instead of extended prison stays, especially since even after sex-offending convicts are released, at least seven states mandate they remain in confinement.

Compared to other offenses, recidivism rates for sex criminals in America are not as high. Only about 5 percent are sent back to prison within three years for a similar crime. Yet states such as Iowa, Florida and California can require sex offenders to be administered libido-eliminating treatment.

Sex offenders may not be a particularly sympathetic group since they pose a serious threat to the most vulnerable members of society, children. Still, many feel chemical castration goes too far.  

Both Amnesty International and the American Civil Liberties Union in the US have condemned the practice, calling it inhumane.  “At first sight, forced chemical castration could be taken as a matter-of-course decision; however, it is incompatible with human rights, which are the foundation of any civilized democratic society,” read a statement by Amnesty International in March 2012.

In addition to the controversy around forcing people to take drugs they may not want in their bodies, the drugs used for chemical castration don’t come without their fair share of side effects, namely symptoms mimicking menopause in women.

August 29, 2015 in Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Technocorrections | Permalink | Comments (6)

Friday, August 28, 2015

Massachusetts SJC rules local sex offender restrictions preempted by state law

As reported in this Boston Globe article, "Massachusetts cities and towns cannot broadly restrict where sex offenders can live, the state’s highest court ruled Friday, declaring that measures in place in more than 40 municipalities were in conflict with state law."  Here is more on the ruling: 

The decision came as the Supreme Judicial Court upheld a lower court ruling on a Lynn ordinance that the judges said would have affected 95 percent of the city’s residential properties.  The court decried the measure, which it said conflicted with a 1999 state law that set up a system to keep track of sex offenders in communities.

“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst,” the ruling said.

Timothy Phelan, who sponsored the Lynn ordinance when was City Council president in 2011, called the decision discouraging and disappointing. SJC rules against sex offender zone laws in Mass.  “It seems like the rights of children are taking a back seat to what is politically correct,” Phelan said.

The ordinance placed strict limits on the ability of Level 2 and 3 sex offenders — those deemed by the state to have moderate and high risks of reoffending — from living within 1,000 feet of a park or school.

John Reinstein, the attorney who argued the case on behalf of three registered sex offenders, said the strong language in the ruling is “a shot across the bow to any attempt to provide the authority for broad-based restrictions to cities and towns.” Reinstein began work on the subject while he was legal director of the American Civil Liberties Union of Massachusetts and continued after his retirement in 2013.

He and his colleagues had urged the court to reject the law on constitutional grounds, arguing that it violated the fundamental rights of sex offenders to move freely within the state and choose where they live.

Friday’s decision instead followed a lower court ruling in deciding that the ordinance violated “home rule” provisions because it is a local measure in conflict with state law. The outcome leaves open the possibility that lawmakers could restore the ability of municipalities to create residency restrictions for sex offenders.

The full unanimous Massachusetts SJC ruling is available at this link.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1)

Do tough sex offender restrictions really hurt women and children more than keeping them safe?

The question in the title of this post is prompted by this lengthy new Al-Jazeera America article headlined "Collateral damage: Harsh sex offender laws may put whole families at risk: Research says that registries and residency bans leave children of sex offenders vulnerable to bullying, homelessness." Here are excerpts:

In 1996, Congress passed Megan’s Law, which allowed states to publicize the names of those convicted of sex offenses. A wave of federal and state laws followed that created online sex offender registries, broadened who is listed and restricted where registrants can live.

But today there’s a growing body of research and court opinions questioning those laws’ effectiveness and constitutionality. No studies have looked at what proportion of the country’s nearly 850,000 people on state registries are providing for families of their own. Activists say, however, that thousands of female partners and children are being hurt by laws that aim to protect kids....

Vicki Henry, who runs Women Against the Registry, a group trying to roll back registration and residency laws nationwide, [with] volunteers operate a hotline for family members of registrants seeking help in dealing with the consequences of those laws. They field about 100 calls a month, Henry says.

The only quantitative study to date suggests how serious those consequences may be. In the American Journal of Criminal Justice in January 2009, researchers Jill Levenson and Richard Tewksbury reported on their survey of nearly 600 immediate family members of registrants. More than 20 percent said they had to move out of a rental because their landlord found their relative’s name on the registry, and 40 percent said they found it hard to find an affordable place to live.

Respondents said that their kids didn’t fare well either. Two-thirds reported that their children felt left out of activities because of their parent’s status, more than three-quarters said their children were depressed, and almost half reported that their children were harassed....

Two new qualitative studies provide more backing for the 2009 study findings. From 2010 to 2012, a team of researchers from four universities surveyed almost 450 registrants about the consequences for their families of their being on the list. Their report on the study ran in the October 2014 Justice Policy Journal. Another by two University of Delaware researchers involved surveys last year of 36 family members and interviews with 16 of them; it’s still under review for publication. Both studies asked open-ended questions, so the researchers couldn’t crunch any numbers. But key themes run through the responses — children being shunned and harassed, families struggling to find a place to live, wives losing friends and jobs because a husband is on the list....

Those families may be the collateral damage in a war on sex crimes that’s been underway since passage of Megan’s Law. But it’s far from clear that the chief weapons politicians have employed — registries and residency bans — are helping to protect children or the public.

None of the six studies on sex offender registries conducted between 1995 and 2011 found that registries lowered recidivism, according to a meta-analysis of 20 years of research in the November 2012 Journal of Crime and Justice. “Over the last 15 years, sex offender registries have been established in all empirical forums not to reduce sexual offending behavior, violence, or the number of victims,” Kristen Zgoba, coauthor of that study, wrote in an email.

There’s an even broader consensus on residency restrictions. A U.S. Department of Justice brief released last month concluded that “research has demonstrated that residence restrictions do not decrease and are not a deterrent for sexual recidivism.” And a December 2013 study report in the journal Criminal Justice Policy Review noted that Florida’s residency laws likely play a “significant role” in homelessness and transience among sex offenders.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, August 20, 2015

Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?

The question in the title of this post is one that I first had when I initially heard of the basics facts and basic plea deal terms (reported here) surrounding the child sex crimes committed by former Subway pitchman Jared Fogle.  In addition, a number of blog commenters have in prior posts comments likewise wondered about the sentencing range Fogle would appear to be facing under the terms of the plea deal.  Along those lines, here are now some recent media coverage on this plea deal front:

As federal practitioners know, whatever plea deal that has been put together in this case by the parties could ultimately be rejected by the district judge. Such a plea deal rejection, in a typical federal criminal case, is quite rare. But the media attention already generated by this case makes it anything but typical, and that media attention might also end up influencing the judge who has to approve the deal before it becomes official.

Helpfully, this official press release from the U.S. Attorney’s Office for the Southern District of Indiana provides a bit more detail about what seem to be the sentencing elements of the proposed plea deal: 

According to Senior Litigation Counsel Steven D. DeBrota, who is prosecuting the case for the government, under the terms of the plea agreement, Fogle faces a mandatory minimum sentence of at least 5 years of imprisonment, a fine of up to $500,000, and supervised release after serving his prison sentence for at least 5 years and up to the remainder of his life. There is no agreed sentence in the case and the government may request of up to 151 months of imprisonment. However, Fogle may not request a sentence below 5 years of imprisonment.

The Plea Agreement also requires Fogle to pay a total of $1,400,000 in restitution to the 14 victims in the case, 8 of whom are still minors, and forfeit assets of $50,000. This is the largest amount of restitution ever ordered for a child pornography or sex trafficking case in the history of the Southern District of Indiana. The victims will be able to use these funds to pay for counseling and treatment to combat the debilitating life effects of these crimes.

Reading between the lines, it seems that the plea deal as described here may only limit the severity of the sentencing that prosecutors recommend, it may not formally limit what sentence the judge could acually impose. If this is accurate, then I would predict that the district judge would be inclined to accept even a seemingly "sweetheart" deal for Fogle safe in the knowledge that he could ultimately impose a sentence longer than the 12.5 years of imprisonment likely to be recommended by prosecutors when sentencing finally rolls around.

Prior related posts:

August 20, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Wednesday, August 19, 2015

Even with plea deal, Subway pitchman Jared likely facing at least a decade in federal prison for sex offenses

This Reuters article, headlined "Former Subway pitchman seeks to plead guilty to child pornography, sex charges," provides a lot more factual details concerning the multiple federal sex offenders committed by a renown TV figure.  Here are the ugly factual and legal specifics surrounding Jared Fogle:

Former Subway sandwich chain pitchman Jared Fogle asked a federal judge on Wednesday to accept his plea of guilty to charges of child pornography and traveling for illicit paid sex with minors.  Federal Judge Mark Dinsmore must now review the plea deal Fogle's attorneys reached with prosecutors and decide whether to accept it. In the meantime the court entered a technical plea of not guilty on Fogle's behalf.

Fogle, who became famous after losing a lot of weight on a diet that included Subway sandwiches, was placed on home detention and must wear an electronic monitoring device. No date has been set for his next appearance.

Under the deal, Fogle would serve between five and 12 years in prison, pay $1.4 million in restitution to 14 minor victims, register as a sex offender and meet other conditions....

According to the charges, Rusell Taylor, head of the Jared Foundation set up to combat child obesity, secretly taped 12 minors while they changed clothes and showered at his home, including two who were as young as 13 or 14. He shared the images with Fogle, who knew they showed minors, prosecutors said.

Prosecutors said Fogle also received commercial child pornography from Taylor, viewed it and failed to report it. He stored explicit images of children as young as six, prosecutors said.

Fogle traveled to New York City at least twice between 2010 and 2013 seeking sex with minors, and paid for sex acts with a girl he knew to be 17 years old and another girl younger than 18. He told the first girl he would "make it worth her while" if she could find him another minor to have sex with, "the younger the girl, the better," according to the indictment. Prosecutors said he repeatedly asked prostitutes and others to find him 14- and 15-year-olds for sex.

Police and prosecutors said in a news conference on Wednesday that the investigation of Taylor and Fogle started after a tip from a private citizen....

Immediately after the hearing Fogle's wife, Katie, said in a statement that she would seek an end to the marriage. "Obviously, I am extremely shocked and disappointed by the recent developments involving Jared. I am in the process of seeking a dissolution of the marriage," she said in the statement released by her lawyer.

Fogle's attorney Jeremy Margolis told reporters in a statement on the courthouse steps: "He expects to go to prison, he will do his time... He will continue to make amends to people whose lives he has affected, and at some point hopes to become again a productive member of society."

Authorities searched Fogle's home in the Zionsville suburb northwest of Indianapolis in July, two months after Taylor was arrested on federal child pornography charges. Assistant U.S. Attorney Steven DeBrota said at a news conference that Fogle continued to seek paid sex with minors even after Taylor's arrest, but was not successful.

I would need to see the text of any plea agreement in order to come up with any firm prediction as to Fogle's likely guideline sentencing range or as to what ultimate sentence he will receive. Nevertheless, the fact that Fogle's crimes included not only child porn offenses, but also repeated solicitation of under-age girls (even after he was under investigation) leads me to predict a double-digit prison sentence is already pretty likely.

Prior related post:

August 19, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (8)

Tuesday, August 18, 2015

What sort of child porn federal plea deal might be in works for Subway pitchman Jared Fogle?

The question in the title of this post is prompted by this (celebrity?) federal criminal justice news emerging from Indiana late today: "Jared Fogle, the former Subway spokesman, is expected to plead guilty to possession of child pornography charges."  Here are the details:

Sources say Fogle will accept a plea deal Wednesday. The U.S. Attorney’s Office will hold a press conference tomorrow afternoon to discuss the deal and charges against Fogle. Fogle’s attorney, Ron Elberger, had no comment in regards to the plea deal. He said any information regarding the charges would come from the attorney’s office. Elberger did say Fogle’s suspension with Subway continues....

The charges come after federal agents raided Fogle’s Zionsville home in early July. FBI sources confirmed to FOX59 state and federal investigators were serving warrants at his home in connection with a child pornography investigation. Several computers and DVDs were seized from Fogle’s home.

Earlier this year, Russell Taylor, the former director of the Jared Foundation started by Fogle, was arrested in a child pornography case. He was accused of possessing and producing child pornography. Investigators said a search of Taylor’s home turned up more than 500 videos with images of child pornography. In May, Taylor unsuccessfully tried to kill himself while in jail.

Fogle gained national fame after attributing massive weight loss to eating Subway sandwiches. He was a freshman at Indiana University at the time. He later became a visible presence in Subway ad campaigns, pitching the restaurant’s sandwiches and touting their health benefits.

Subway suspended their relationship with the spokesman shortly after the raid.

Prior related post:

August 18, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (3)

Sunday, August 16, 2015

"Sex Offenders Locked Up on a Hunch"

The title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:

The essence of the American criminal justice system is reactive, not predictive: You are punished for the crime you committed.  You can’t be punished simply because you might commit one someday.  You certainly can’t be held indefinitely to prevent that possibility.

And yet that is exactly what is happening to about 5,000 people convicted of sex crimes around the country.  This population, which nearly doubled in the last decade, has completed prison sentences but remains held in what is deceptively called civil commitment — the practice of keeping someone locked up in an institution for months, years or even decades for the purpose of preventing possible future offenses.

The authorities have the power to detain people with mental illnesses or disorders who cannot function independently, or who pose a danger to themselves or others.  But since the early 1990s, this power has been used increasingly to imprison one distinct group: sex offenders....

In a decision in June, a federal judge ruled that Minnesota’s civil-commitment law for sex offenders violates the Constitution.  Federal District Judge Donovan Frank said the law imposes “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”  For example, local prosecutors — not clinicians or mental health professionals — choose whether to seek continued detention based on a screening test that claims to predict a person’s likelihood of committing another sex offense, though there is no clear evidence such tests are accurate.

Yet based largely on those screening tests, more than 700 Minnesotans who have completed their prison sentences are locked up, at an annual cost of more than $120,000 per person — triple the cost of prison.  This civil commitment rate is by far the highest in the country. Some people have been held for more than 20 years.  During that time, not one person has been released from the program unconditionally.

A central flaw, Judge Frank said, is that Minnesota does not perform reassessments of risk, so the burden lies with the detainees to prove they no longer pose a danger.  On Aug. 12, Judge Frank ordered the state to come up with constitutionally valid reforms by the end of September, or he “may demand a more forceful solution.”

Despite the public perception that all sex offenders are recidivists — a belief that drove these laws in the first place — sexual re­offense rates are in fact lower than those for other crimes (though an unknown number of sex crimes go unreported).  In addition, while some states’ laws make it easier for detainees to earn their way out, 30 states have no civil­-commitment laws at all, and there is no evidence that a state’s sexual­-violence rate is affected by whether it has such a law....

Public safety would be better served if resources were directed toward community supervision and other services for those leaving prison, rather than toward skirting the edges of the Constitution to keep them locked away.

August 16, 2015 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12)

Thursday, August 06, 2015

Teen placed on sex offender registries after encounter with girl claiming to be 17 to be resentenced

According to this new CNN piece, there seems to be a notable new legal development in a notable case of a teen facing extreme sex offender restrictions after a seemingly not-so-extreme sex offense.  The piece is headlined "Judge reconsidering case of teen on sex offender registry," and here are the details:

A 19-year-old Indiana man convicted of a sex offense after a teenaged girl lied about her age on a hookup app may get a new sentence. The judge in the case, Dennis Wiley, did not make a decision Wednesday, but he agreed to consider Zach Anderson's request to be resentenced, meaning that Anderson could potentially be taken off the sex offender registry.

Anderson met the girl on the dating app "Hot Or Not." The 14-year-old girl lied about her age, claiming she was 17, which made having sex with her a crime.  She lived in southern Michigan, close to Anderson's parents' home in Elkhart, Indiana.  Anderson was given a 90-day jail sentence, five years probation and placed on both Indiana's and Michigan's sex offender registry for the next 25 years -- the same registry as child rapists, pedophiles and predators.

Anderson and his lawyer, Scott Grabel, had asked a court in Niles, Michigan, to vacate Anderson's sentence, alleging that prosecutors broke the plea agreement, the defense attorney said.  Grabel, who accuses the prosecution of not staying neutral during the sentencing of Anderson as required under the agreement, described the judge's decision Wednesday as a "significant step."  Wiley is expected to make a further ruling in about a week.

"In the long run, I'm confident we're gonna get this thing fixed," the attorney told CNN. Both the girl's mother and the girl herself had earlier appeared in court, to say they didn't believe Anderson belonged on the sex offender registry....

"Our goal is to get this case resentenced in front of a different judge, because the law mandates if the prosecutor violates their plea agreement, then it should be sent to a different judge for possible resentencing, or if we want to withdraw the plea and go to retrial that may be an option, as well," Grabel told CNN before the court action Wednesday.

Anderson's attorney is also striving to get the entire case dismissed. "I don't certainly speak for the public in general, but the comments I've read nationally think that his whole life shouldn't be ruined by his decision to go on a date and obviously have sexual relations with that person, especially when that person in all honesty misrepresented their true age," Grabel said.

As a registered sex offender, Anderson can't access the Internet, go to a mall or linger near a school or playground. His parents say because he has a 15-year-old brother, he can't even live at home any longer....

Anderson's case has stirred much debate about the one-size-fits-all sex offender laws that treat all offenders the same whether they are serial child predators or teens who've had sex with a girlfriend. His family has started a Facebook page, called "Justice 4 Zach," and has been very vocal about what they call the injustice of the sex offender registry. "He's obviously not a sex offender," Anderson's father told CNN, "I mean when there's a consensual act, to have one person labeled as the offender and the other person as a victim ... It's hard to swallow."

A former judge in a nearby town said the sex offender registry has to be changed. "If we caught every teenager that violated our current law," said former Judge William Buhl, "we'd lock up 30 or 40% of the high school. We're kidding ourselves."

According to The National Center for Missing & Exploited Children, there are 850,000 people on the sex offender list and about a quarter of them were juveniles when they were sentenced, but the records are not broken down by the severity of the crimes they committed.

Some recent related posts:

August 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8)

Friday, July 31, 2015

ABA Journal spotlights continued child porn federal sentencing challenges

This article in the August 2015 issue of the ABA Journal, headlined "Minors Sentence: Courts are giving reduced terms to many child-porn defendants," provides an review of the enduring difficulties federal courts face when sentencing certain offenders convicted of using new technologies to download illegal dirty pictures.  Here is an excerpt:

Courts’ reaction to child pornography sentencing is part of a pushback against sentencing guidelines after U.S. v. Booker and U.S. v. Kimbrough, two Supreme Court opinions filed in 2005 and 2007 that found the federal sentencing guidelines advisory, not mandatory. As a result, courts have undercut child pornography sentencing guidelines when the images are taken from P2P programs.

According to one study cited in a 2012 U.S. Sentencing Commission report, 85.3 percent of child pornography distribution convictions in the first quarter of fiscal year 2012 involved P2P programs. Of offenders who used the programs, 55.6 percent distributed images solely with an open P2P program.

The study also found that the rate of known sexual recidivism for nonproduction offenders was 7.4 percent. The agency suggested that Congress revise the nonproduction child pornography sentencing scheme, because crimes stemming from downloads involve less culpability.

If prosecutors think that a child pornography defendant’s mental health contributed to the crime, and that the individual is sincere about rehabilitation and is not a child predator, they will agree to diminished incarceration plea agreements, says Raymond Cassar, a Farmington Hills, Michigan, defense lawyer....

One such case involved Nicholas Dubin, who has Asperger’s syndrome. According to a government sentencing memo, the FBI logged on to a P2P network in 2010 and identified 12 files on Dubin’s computer. More than half contained child pornography. The government obtained a search warrant for his home and found “several hundred to 1,000 images” of child pornography on his computer....

At the time of his arrest Dubin was the dean of students at a high school. In 2013, he pleaded guilty to one count of child pornography possession, and his sentencing range under the guidelines was between 97 and 120 months. The government, however, agreed to sentence Dubin to one day in federal custody, with credit for time served, and five years of supervised release. A 2013 sentencing memo submitted by the Eastern District of Michigan’s U.S. attorney’s office notes that people with autism spectrum disorders often have limited intimate relationships. The document also asserts that Dubin, who had no prior criminal record, was remorseful about his actions and had focused his therapy to understand why his crime was harmful.

“A sentence of one day time served does not, in any way, adequately reflect the seriousness associated with the possession of child pornography,” the government wrote. “However, in this exceptional case, a noncustodial sentence will effectively promote respect for the law and provide just punishment.”

To some, child pornography offenders may not seem as dangerous anymore, because their profile has changed, says Melissa Hamilton.  A visiting criminal law scholar at the University of Houston Law Center, her research focuses on violence, sex crimes and sentencing. “Going to a physical location and buying child pornography off the shelf or sending away money to get it by mail,” she says, involves more culpability than searching for it online.  The sentencing guidelines, she adds, were written before the uptick in prosecutions involving child pornography from P2P programs, and it’s unlikely that they’ll change in the near future.

“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says. “I have noticed some instances where very senior judges, who are reflecting [on the defendants they sentence] sometimes write long opinions saying that the child pornography downloaders don’t look as scary and risky, in terms of other violent offenders before them.”

July 31, 2015 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (8)

Wednesday, July 29, 2015

"Should Therapists Have to Report Patients Who Viewed Child Pornography?"

The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California.  The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:

Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities.  The requirement applies to adults who admit to having viewed explicit images of children.  And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.

Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”

Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”

Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation.  “If we don't know about it,” he said, “we can't prosecute it."  The effect would ostensibly be fewer victims of an abhorrent industry.

But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.

July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)

Tuesday, July 21, 2015

Intriguing federal civil rights case assailing New York sex offender family restrictions

A helpful reader altered me to this fascinating story, headlined "Bronx Dad's Case Tests Restrictions on Sex Offenders," concerning a fascinating federal court case being litigating in New York. Here are the basic details via the press account (with links):

With a name resembling a kindergartner's alphabet primer, the lawsuit ABC v. DEF takes on far more insidious themes -- namely the parental rights of a Bronx man who spent eight years in prison for raping his ex's teenage niece.     

A federal judge issued an order in the case last week that could earn that man unspecified financial compensation from New York state.  Three law professors interviewed by Courthouse News say they have never heard a sex offender case quite like it.

Though the case was unsealed last year, a pseudonym still shields the name of the 50-year-old plaintiff.  The docket meanwhile evinces a powerful support network for his cause, including dozens of family members and friends who wrote to the court on his behalf.  Doe's attorney, Debevoise & Plimpton partner Michael Mukasey, is a former U.S. attorney general.

It's been 10 years since a jury found that Doe committed second-degree rape and other offenses against his ex-wife's niece, who accused him of assaulting her when she lived with the family between the ages of 13 and 14.  The jury acquitted Doe of the first-degree charges, and he is appealing the counts for which he was convicted, maintaining that he is innocent.

While still behind bars, Doe and his wife divorced, and he remarried another woman he had known for 25 years.  They had a child, "M.S.," shortly before Doe successfully completed his sex-offender and substance-abuse rehabilitation programs in the fall of 2012.  Since Doe requires permission to contact anyone under the age of 18, parole officers ordered him away from his new home -- and into a homeless shelter -- when his son turned 1 month old.

A Bronx Family Court already allowed the father of six to have unsupervised visits with his teenage daughter, and social workers saw no danger with his raising a newborn son.

Doe's accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life. "Why should he live happy and comfortable when he took something from [me] that [I] can't get back?" she asked them, according to court papers.

After this conversation, a Manhattan bureau chief of New York State's parole division ordered Doe away from his new family in a one-paragraph directive stating that the "victim's perspective is always important." Bureau Chief Joseph Lima officer noted in his decision that Doe's crimes "occurred within the family constellation and in some instances while other family members were present in the residence."

Doe's attorney Mukasey noted in a legal brief that all four of their client's adult children wrote letters to the court on behalf of their father. "He has a close relationship with his five oldest children, who range in age from 14 to 27," the brief states. "Mr. Doe has never been accused of neglecting or abusing any of these children; to the contrary, they speak fondly of their relationship with him and his importance in their lives. Mr. Doe desperately wants to establish an equally loving bond with his one-year-old son, plaintiff M.S."...

Neither Mukasey nor his co-counsel would respond to press inquiries. Their amended complaint sought a court order reuniting the family, plus unspecified monetary damages for deprivation of Doe's rights to due process and intimate association. U.S. District Judge Paul Engelmeyer pushed the case forward to discovery Wednesday, in a 36-page opinion and order.

Since parole officers can impose "several dozens" of conditions on the lives of registered sex offenders, Engelmeyer said their expansive powers must face a check. "In addition to the power to decide whether Doe may have contact with any person under age 18, a parole officer has the authority to grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess 'any children's products' or photos of minors; rent a post office box; obtain a driver's license; 'rent, operate or be a passenger in any vehicle'; travel outside of New York City; visit an arcade, bowling alley, beach, or swimming pool; or have visitors at his approved residence," the opinion notes.

Refusing to grant immunity, Engelmeyer wrote "there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court action, over so many aspects of a parolee's life." His ruling allows Doe's claims against six DOCCS officials to advance to discovery. In a phone interview, Georgetown University Law professor Abbe Smith called the decision a "terrific development."

"If you commit a crime, and you're punished, you should be allowed to serve your debt to society and then move on," said Smith, who co-directs the university's Criminal Defense and Prisoner Advocacy Clinic. "[The Bronx father] has a newborn son. I can't imagine on what basis he could be deprived from having contact from his own child."  Smith added that she never heard of a case like this before because, "typically, parole officers have immunity," and the ruling emphasizes that they cannot have "limitless discretion."

David Rudovsky, a Penn Law School professor and founding partner of the Philadelphia-based firm Kairys, Rudovsky, Messing & Feinberg, LLP, called the case "significant" because it expands upon a Second Circuit case striking down restrictive probation terms involving relationships with close family members.  Unlike that case, however, the ruling in Doe's lawsuit "extended that doctrine to a damages claim against a parole officer," Rudovsky said in an email....

Florida State University professor Wayne Logan, an expert on sex-offender registries, said he had not heard of such a case either....  Smith, the Georgetown professor, said that she felt sympathy for the Doe's victim, but she said that criminal justice must "root for people to rebuild their lives."

"Marriage and making a family, becoming gainfully employed, those are all signs that a person has abandoned their lawless ways," she said.

July 21, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, July 07, 2015

Subway pitchman and his "Jared Foundation" subject to serious child porn investigation

At the risk of encouraging some poor-taste puns (such as that one), I could not resist reporting here on this remarkable unfolding story of an on-going FBI investigation in Indiana which, if I had to guess, could well result in a very high-profile federal child pornography sentencing.  This latest press report is headlined "Attorney for Jared Fogle says Subway pitchman is cooperating in probe," and here are some of the unsavory details:

An attorney for Jared Fogle says the Subway pitchman has not been arrested on any crime and is cooperating with investigators as they look into items authorities took out of his Zionsville home. "Jared has been cooperating, and continues to cooperate, with law enforcement in their investigation of unspecified charges and looks forward to its conclusion," attorney Ron Elberger said in an email. "He has not been detained, arrested or charged with any crime or offense."

Fogle was driven away from his Zionsville home by an attorney in a black Lexus Tuesday afternoon amid an hours-long police investigation conducted by federal and state officials. The Subway chain said it believes the investigation is related to the prior arrest of a former Jared Foundation executive on child pornography charges.

Investigators from the FBI, Indiana State Police and Postal Service arrived at Fogle's large, brick home in the 4500 block of Woods Edge Drive early Tuesday and parked an evidence truck in the driveway.  In the early hours of the probe, Fogle was seen leaving the truck, and investigators carried electronics and other items out of Fogle's home.

It could not be confirmed why police were at the residence, but the raid comes just two months after 43-year-old Russell Taylor, the executive director of The Jared Foundation, was arrested in Indianapolis on federal child pornography charges.  A detective's affidavit filed in May to obtain search warrants for Taylor's residence details allegations against the former head of Fogle's foundation, including claims he produced and possessed child pornography involving children — both boys and girls — as young as 9 years old.

One item police recovered from Taylor's home office, according to court records, did appear to have a link to Fogle or his foundation. The officers who searched Taylor's home reported recovering a thumb drive that contained multiple videos of child pornography, including what police described as "commercially made child pornography from Eastern Europe similar to that seized on other investigations," court records said. The detective leading the probe noted an examination of that thumb drive "revealed a document file with Taylor's employer listed in the file name." It is unclear, however, if that referred to Fogle or the foundation. It also is unclear from the court document if that specific file contained pornographic images. Federal officials wouldn't comment on either case today....

FBI spokeswoman Wendy Osborne this morning confirmed that the agency was conducting a criminal investigation in Zionsville, but she would not comment on the nature of the probe. She referred questions to officials from the U.S. attorney's office, who declined to comment, citing a Department of Justice policy that prohibits them from confirming or denying the existence of an investigation.

Fogle rose to fame in television commercials for the Subway sandwich chain after losing 235 pounds by eating Subway sandwiches and exercising. Fogle was a 425-pound freshman at Indiana University when he embarked on the unusual diet of turkey and veggie subs in 1998. Fogle founded the Jared Foundation to encourage children to develop habits of healthy eating and exercise.

Two days after he was formally charged, Taylor attempted suicide on May 6 at the Marion County Jail and was placed on life support. Tim Horty, a spokesman for the U.S. attorney's office, said Tuesday that Taylor's health is improving and he is in the custody of the U.S. Marshals Service. He faces seven counts of production of child pornography and one count of possession of child pornography.

Court documents said officers initially searched Taylor's home in the 1300 block of Salem Creek Boulevard on April 29 looking for "evidence of bestiality, including images or videos," but found several digital media cards and thumb drives that included "multiple video files of nude or partially nude minor children." Over 400 videos of child pornography were found on computers and storage media.

It added many of those images appeared to have been made in bedrooms and bathrooms at Taylor's former and current homes. "Many of these videos showed the exposed genitals or pubic area of the children" – both boys and girls – and that the "minors did not appear to be aware that they were being filmed," according to the court record. The court documents also said Taylor had an interest in bestiality and shared images with an unnamed person involving a "dog licking the nude genital area of an adult female." Taylor has not been charged with any crimes related to that video or alleged bestiality.

After Taylor's arrest, Fogle issued a statement that said he was "shocked" over the allegations and that the foundation was "severing all ties" with Taylor.

July 7, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (3)

"Sex Offender Registries And Calls For Reform"

The title of this post is the title of this recent extended segment on NPR's Diane Rehm Show. Here is how the program is previewed and the guests on the program:

Sex offender registries are designed to protect the public from pedophiles and others who have committed sexual crimes. But some say those guilty of much lesser offenses don’t belong on the list. We look at sex offender registries and calls for reform.

Guests

  • Abbe Smith, professor of law and co-director of the Criminal Justice Clinic and E. Barrett Prettyman Fellowship program at Georgetown University; author of "Case of a Lifetime."

  • Jill Levenson, associate professor, social work, Barry University and clinical social worker

  • Brenda V. Jones, executive director, Reform Sex Offender Laws, Inc.

  • Victor Vieth, founder and senior director, Gundersen National Child Protection Training Center

July 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, July 06, 2015

ACLU argues Indiana's new religious freedom law protects sex offenders seeking church access

ReligiousLibertyAs reported in this interesting local article, headlined "ACLU: RFRA must let sex offenders worship at churches with schools," a new lawsuit in Indiana is creating a new stir surrounding the state's controversial new state religious liberty law. Here are the details:

The American Civil Liberties Union of Indiana filed Wednesday what appears to be the first lawsuit that invokes the state's new new Religious Freedom Restoration Act. Their clients? Registered sex offenders who believe their religious freedom is being denied by another new law that bans them from attending any church located on the same property as a school.

"This is a prime example as a place where people's religious rights are being burdened, and therefore under RFRA the state has to justify that," said ACLU of Indiana legal director Ken Falk. "It makes no sense to ban people on a Sunday if there are kids there on a Thursday." For example, that would be the case with church preschools or parochial schools with adjacent churches....

The lawsuit was filed in Elkhart Superior Court, on behalf of two unnamed sex offenders, against the prosecutors and sheriffs of Allen and Elkhart counties. When reached by The Indianapolis Star, the sheriff's departments declined to comment.

Indiana's new religious freedom law, which went into effect Wednesday, says if the government imposes an undue burden on the religious rights of individuals, businesses or religious organizations, it must prove a compelling interest and that it is using the least restrictive means possible.

"I think this is exactly the kind of case RFRA was about," said Indiana University law professor David Orentlicher. "You've got this sex offender law that's designed to protect children. It wasn't passed with the intent to interfere with religious practice, but it turns out there are a fair number of schools on church grounds. These people now can't go to pray without running afoul of the law."

Some in Indiana — including the ACLU — opposed the state RFRA, arguing that the law would allow discrimination against lesbians, gays, bisexuals and transgender individuals. That led to a "fix" to the law to clarify that an RFRA defense could not be used to trump local and state civil rights laws.

But with the heated debate over how RFRA would apply in wedding services for same-sex couples, "what got lost was there are a lot of good reasons for these statutes," Orentlicher said. "That's what this case should remind us — that RFRAs can be misused, but we don't want to throw the baby out with the bathwater," he added.

Falk of the ACLU said the lawsuit uses RFRA "as it was originally contemplated" to protect religious freedoms. "We're not going to pretend it doesn't exist now," Falk said. "It does exist. The legislature said it wants to protect religious liberties, and that's exactly what we're trying to do."

Still, state Senate President Pro Tempore David Long, a Fort Wayne Republican, criticized the ACLU for the lawsuit. "The ACLU used to be a staunch supporter of religious liberty," he said in a statement. "Now they've reduced themselves to making a mockery of it. On top of this, they also support endangering our children while championing the rights of sex offenders. It's a sad day for the ACLU."

State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds and reacted to the ACLU lawsuit by slamming the religious freedom law: "Clearly nobody had thought through what all the negative ramifications might be for people."

"I think that we have to keep in mind that Indiana is one of the very worst states in the nation when it comes to protecting our children from sexual violence," she added, citing national health statistics and recidivism rates. "We're second only to Wyoming. And we have to do whatever it takes to protect our kids. ... Any time we can keep a sexual predator away from a child, that's a small victory."

But Orentlicher made the point that the case may not be so simple. For sex offenders who have served their time, religion may be instrumental to their rehabilitation, he said: "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."...

In addition, the ACLU argues for sex offenders to have access to the worship services when schools aren't in session. And the lawsuit says it's "not rational" that serious sex offenders can still go to church services where children are present if there's no school attached. Orentlicher said other states, such as Missouri, have carved out religious exemptions to allow sex offenders to attend church when school is not in session. "They're just saying, 'Let us pray when the kids aren't there,' " Orentlicher said.

July 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Religion, Sex Offender Sentencing | Permalink | Comments (4)

Florida prosecutors (for suspect reasons?) seeking 2.5 years in prison for sex-on-beach guy

As previously discussed in prior posts linked below (starting with this one), a couple engaged in some consentual, but seemingly inappropriate, behavior on a public beach lead to a state criminal conviction and a seemingly extreme potentially mandatory imprisonment term for the fellow involved who had a criminal record.  This local article, headlined "Man convicted of sex on the beach in Bradenton Beach learns his punishment Monday," reports on where matters stand today on the morning of the (gentle?)man's scheduled sentencing:

The notorious Bradenton Beach sex-on-the-beach case is back in court Monday.

In a case that drew national and international attention, Jose Caballero, the man caught video having sex with a woman on Cortez Beach last July, will learn his punishment, after a jury found him and Elissa Alvarez guilty of two counts of two counts each of lewd and lascivious behavior. Prosecutors said soon after the verdicts were announced that they would not seek the maximum possible punishment: 15 years.

Alvarez, who didn't have a prior criminal record, in May was sentenced to time served since her arrest July 20, and required to register as a sex offender.

Prosecutors said last month they will recommend that Caballero, who previously served 8 years in prison for cocaine trafficking, be sentenced to 2 1/2 years in prison. He is currently in the Manatee County jail awaiting sentencing.

The tougher punishment, they said, is warranted because of Caballero's behavior before he was arrested on the beach. "We had a real good tone of what to give Ms. Alvarez after the case was over in terms of the testimony that came out, which created a vast difference in the demeanor that Mr. Caballero reacted to the fellow beachgoers versus the demeanor of Ms. Alvarez and how she reacted," said Assistant State Attorney Anthony DaFonseca, after Alvarez was sentenced.

Though I can understand, somewhat, why Caballero's criminal history might prompt prosecutors to seek a somewhat tougher sentence than his co-defendant received, I do not quite understand how the female defendant's "good tone" and distinct reaction justifies such an extreme different in recommended sentences. Ultimately, because I know very little about Florida sentencing law, I am unable to say with certainty that there is something problematic about the Florida prosecutors' recommended sentence here. But I do know 30 months is prison would be a pretty steep price to pay for some sandy sex.

July 6, 2015 in Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Sunday, July 05, 2015

New York Times reviews juve problems with modern sex-offender laws

The front-page of today's New York Times has this lengthy article, headlined "Teenager’s Jailing Brings a Call to Fix Sex Offender Registries." Here are excerpts:

Until one day in December, Zachery Anderson was a typical 19­-year-­old in a small Midwestern city.... And he dated in the way that so many American teenagers do today: digitally and semi­anonymously, through apps where prospects emerge with the swipe of a finger and meetings are arranged after the exchanges of photos and texts.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line.  They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14....  He was [later] arrested and charged and, after pleading guilty to fourth­-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.

As an Indiana resident, Mr. Anderson will most likely be listed on a sex offender registry for life, a sanction that requires him to be in regular contact with the authorities, to allow searches of his home every 90 days and to live far from schools, parks and other public places. His probation will also require him to stay off the Internet, though he needs it to study computer science.

Some advocates and legal authorities are holding up Mr. Anderson’s case as the latest example of the overreach of sex offender registries, which gained favor in the 1990s as a tool for monitoring pedophiles and other people who committed sexual crimes.  In the decades since, the registries have grown in number and scope; the nearly 800,000 people on registries in the United States go beyond adults who have sexually assaulted other adults or minors.  Also listed are people found guilty of lesser offenses that run the gamut from urinating publicly to swapping lewd texts.

As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries. “The whole registry is a horrible mistake,” said William Buhl, a former judge in Michigan who has publicly argued that laws governing registries ought to be relaxed. “I think it’s utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile.”...

There are fledgling efforts in some states to change sex offender registries so that they do not include juveniles or those guilty of minor offenses.  In California, the corrections department announced in March that the state would ease residency requirements for many sex offenders, allowing certain low­risk individuals to live in areas closer to schools and parks that were previously off limits.  Many sex offenders have ended up broke and homeless, living in clusters under freeways because they are routinely rejected by employers and landlords, and because they are banned from living in so many neighborhoods that contain public places like parks.

Brenda V. Jones, the executive director of Reform Sex Offender Laws, an advocacy group, said cases like Mr. Anderson’s are common in many states. Frequently, a judge will give the lightest possible sentence, but cannot change the restrictions involving the offender registry. “It’s like a conviction on steroids,” Ms. Jones said. “Being on a registry becomes a liability for employers, no matter how minor the offense was. Other people will say: ‘I saw your employee on the Internet. He’s a sex offender, and I will not come to your establishment.’ ”

Changing the laws has been a slow fight. “People talk about it, but when you actually try to introduce legislation, lawmakers start to get really nervous,” Ms. Jones said. “Because, oh, my God, we’re going to be soft on sex offenders.”

Prior related post:

July 5, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Monday, June 29, 2015

"A Place to Call Home: Courts are reconsidering residency restrictions for sex offender"

The title of this post is the headline of this notable article from the July 2015 issue of the ABA Journal.  Here are excerpts:

[T]he California Supreme Court struck down the blanket application of [the state's] Jessica’s Law in March’s In re Taylor (PDF).  The justices noted that parole officers may impose residency restrictions on a case-by-case basis.  But they unanimously agreed that universal application of the law violates offenders’ constitutional rights — and doesn’t keep children safe.

The law “has hampered efforts to monitor, supervise and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators,” now-retired Justice Marvin Baxter wrote.  Though the decision applied only to parolees in San Diego County, the California Department of Corrections and Rehabilitation soon extended it to parolees statewide. CDCR spokesman Luis Patino says the state attorney general’s office believes courts would apply Taylor to every county.

California is not the only such state.  Later in March, a Michigan federal court struck down application of that state’s “geographic exclusion zones” to six plaintiffs, saying the law is unconstitutionally vague.  And in February, the New York Court of Appeals ruled that all local sex offender residency laws are pre-empted by state law, which does not include residency restrictions.

Courts weren’t always so friendly to these challenges. The highest court to rule on residency restrictions, the 8th U.S. Circuit Court of Appeals at St. Louis, ruled in 2005’s Doe v. Miller (PDF) that Iowa’s residency restrictions did not violate offenders’ constitutional rights.  That’s an important case, says professor Wayne Logan of Florida State University College of Law.  Most courts considering federal challenges on the issue have followed it.

But there are signs that things are changing.  Responding to compelling personal stories and mounting evidence that residency restrictions don’t work — and might even hurt public safety — courts are casting a more critical eye on these laws.  “There’s a public appetite for [sex offender laws], but there’s no evidentiary support that either registries or exclusion zones work,” says Miriam Aukerman, a lawyer for the American Civil Liberties Union of Michigan who represented the plaintiffs in the Michigan case. “And as a result, you’re seeing judges starting to rethink this.”

The facts of Taylor point to one of the biggest criticisms of residency restrictions: They often eliminate so much housing that they force ex-offenders into homelessness.  A 2011 report from the California Sex Offender Management Board expressly noted that “nearly 32 percent of sex offenders on parole are homeless due to Jessica’s Law.”...

And perhaps most damning, Levenson says the consensus among social science researchers is that residency laws don’t reduce recidivism. “We know from decades of research that most child sex abuse victims are well-known to their perpetrators,” she says. “So a person’s residential proximity … is really irrelevant.”

June 29, 2015 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, June 17, 2015

Federal district judge declares unconstitutional Minnesota sex offender civil commitment program

As reported in this AP piece, today brought a big (but not entirely unexpected) federal court ruling concerning constitutional challenges to Minnesota's civil commitment program for sex offenders. Here are the basics:

A federal judge has ruled that Minnesota's sex offender treatment program is unconstitutional, but has deferred any immediate action to await further proceedings on a remedy.  U.S. District Judge Donovan Frank largely sided with the more than 700 residents who were civilly committed to the Minnesota Sex Offender Program after they completed their prison sentences.

Their lawyers argued during a nearly six-week bench trial in February and March that the program is unconstitutional because nobody has ever been fully discharged from it, even those thought to be at low risk of committing new crimes. The state says it has improved the program, including moving more patients through treatment and perhaps toward provisional release.

Frank is calling on Minnesota government's top leaders to personally appear in court to help come up with an alternative structure to a sex offender confinement program. Frank listed Gov. Mark Dayton, House Speaker Kurt Daudt and Senate Majority Leader Tom Bakk among those he wants to take part in a remedies phase that will start on Aug. 10. Frank says stakeholders must fashion a suitable remedy to avoid having the entire program be eliminated and resulting in the release of civilly committed offenders currently in secure facilities.

In Wednesday's ruling, the judge lays out more than a dozen conditions for a restructured program, including that less-restrictive alternatives be implemented and new evaluation and discharge procedures be developed. Throughout his 76-page ruling, Frank says elected officials have been reluctant to modify the indefinite confinement of more than 700 sex offenders out of political fear. But Frank says "politics or political pressures cannot trump the fundamental rights" of those in the program. He stressed that the U.S. Constitution "protects individual rights even when they are unpopular."

Gov. Mark Dayton says there won't be immediate changes to the Minnesota Sex Offender Program in response to a federal judge's ruling that it's unconstitutional. In a statement that was released Dayton said, "We will work with the Attorney General to defend Minnesota's law."

Dan Gustafson, the attorney who brought the class action suit on behalf of the Minnesota Sex Offender Program clients said he is not surprised by the judge's ruling. He said that he advised his clients to be patient because the remedies will take time to create and not all of the clients will be getting out.

The full 76-page ruling, in a case that still clearly is nowhere close to finished, is now available at this link.

June 17, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, June 12, 2015

"'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics"

The title of this post is the title of this notable new paper authored by Ira Mark Ellman and Tara Ellman recently posted on SSRN. Here is the abstract:

This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case.

The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies.  Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.

June 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Tuesday, June 09, 2015

Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions

DownloadThis lengthy local story, headlined "'Old-fashioned scarlet letter': Elkhart 19-year-old fights sex offender status after encounter with Michigan teen," reviews a notable case highlighting problems with overly broad sex offender registry laws. The piece is subheadlined "During his five years of probation, he can’t have a smart phone or any other device that connects to the Internet, and he can’t live anywhere with Internet access," and here are excerpts:

As Zach Anderson sits in the Berrien County Jail in St. Joseph, Mich., his parents worry. And plead. And fight.

The young man from Elkhart, 19, pleaded guilty in Berrien County, Mich., Trial Court in March to a misdemeanor count of criminal sexual conduct for having sex — consensual sex — on Dec. 19, 2014, with a Niles, Mich., teen. She said she was 17, and met him in person after a whirlwind courtship in cyberspace that started with a meeting via the social app Hot or Not.

It turns out she was only 14, though, two years under the age of consent in Michigan. And now, Anderson finds himself sitting out a 90-day jail sentence, with another five years probation and, of particular concern to his parents, 25 years on Michigan’s sex offender registry. Worse yet, Les and Amanda Anderson, who run a small Elkhart media and printing company, fear their son could face a lifetime on Indiana’s sex offender registry on returning to the Elkhart area after his jail sentence is up.

“Here’s the thing: This mistake should not haunt him the rest of his life,” Les Anderson says from the family home in east Elkhart. That’s where his son — a 2014 Concord High School grad and Ivy Tech Community College student until his jailing — lived before Judge Dennis Wiley handed down the sentence on April 27.

In light of Zach Anderson’s age and clean criminal record, Wiley could have offered him leniency under Michigan’s Holmes Youthful Training Act, as his lawyer sought in sentencing. The Niles girl and her mom — whom the Elkhart Truth won’t name because the teen is a victim — even asked for leniency, asked that the case be dropped altogether.

“What do I say? I feel that nothing should happen to Zach,” the girl said at the first of his two sentencing hearings April 13, accompanied by her mother. “I, I mean I, I don’t know. I just ... if you feel like something should, I feel like the lowest thing possible.”

Her mom followed her daughter at the hearing. “I don’t want him to be a sex offender because he really is not and I know that there’s an age difference and I realize that (name deleted) was inappropriate that night, we didn’t know,” the mother said. She continued: “I’m very sorry and I hope you’ll really consider the fact of just dropping the case. I can’t say anything more than that. I hope you really will for all of our families.”

Wiley didn’t drop the case and ultimately denied Zach Anderson HYTA status, told him he’s “darn lucky” he got the deal he did. HYTA, geared to first-time offenders ages 17 to 21, allows eligible participants to expunge criminal convictions on complying with sentencing conditions, thus avoiding the stigma of a criminal record as they enter their adult years.

The criminal sexual conduct conviction and having to put his name on the list of sex offenders could have dramatic and far-reaching implications for Anderson, his dad says. Lost job and educational opportunities. Social stigmatization. Discrimination. Accordingly, the Andersons will fight the sentencing in court. They plan to argue for HYTA status based on what they and their backers believe to be discrepancies in the sentencing process.

“That is our goal: to get him off the list and be able to function as a normal person in society, be able to live his life like any other person. Because at the end of the day, this is the old-fashioned scarlet letter,” Les Anderson says. He went on: “My son, he’s not a danger to anybody. He’s not dangerous to society. … He’s not going to hurt a little girl. That’s not going to happen.” Even under HYTA guidelines, Zach Anderson would face punishment and repercussions. “It’s not a cake walk. There’s still classes and counseling and restrictions that go along with that. ... That is just much more reasonable than the extreme that he got,” says Amanda Anderson....

Per Hot or Not rules, those ages 13 to 17 are kept separate from users 18 and older. However, in creating a Hot or Not account, the 14-year-old Niles girl identified herself as 18 or over, John Gardiner, Zach Anderson’s first attorney, said in sentencing. After connecting on Hot or Not, the two texted back and forth and, along the way, the girl told Zach Anderson she was 17. He asked her for pictures “of intimate body parts,” Jerry Vigansky, an assistant Berrien County prosecutor, said at sentencing.

Two days after the initial contact, on Dec. 19, they met, according to the girl’s account to the Berrien County Sheriff’s Department responding officer, or R/O, who interviewed her. Authorities got involved, ultimately resulting in the criminal charges, after the girl’s mother called for help the evening of Dec. 19, wondering where her daughter was as she met with Zach Anderson. She worried the girl would miss a dose of medicine....

Call their social app-enabled rendezvous a cautionary tale of the times, one of the consequences of the high-tech, always-connected, Internet-everywhere age we live in. That’s how Wiley, the judge, seemed to view it, as did Vigansky, the prosecuting attorney, and even Gardiner, Zach Anderson’s original lawyer....

Vigansky said there had been “a little rash” of encounters in Berrien County of late like the one between Zach Anderson and the 14-year-old girl. There had been two of them, anyway. He took a dim view, sarcastically alluding to “this great website called Hot or Not.”

“You went online, to use a fisherman’s expression, trolling for women, to meet and have sex with,” scolded Wiley. “That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this.”...

Per Wiley’s sentence, Zach Anderson faces a long list of restrictions during the five years of probation. He can’t have a computer, except for schooling. Can’t have a smart phone or any other device that connects to the Internet. Can’t live anywhere with Internet access. Can’t have an account with Facebook or any other online social network.

He can’t have contact with anyone 17 or younger, his siblings excepted. Can’t live within 1,000 feet of a school. He faces a daily 8 p.m. to 6 a.m. home curfew. He’s to continue his studies, in consultation with his field agent, but can’t take any computer or computer science classes, which had been the planned focus of his Ivy Tech education. “This is what got him in trouble in the first place,” the judge said in sentencing.

To Les Anderson, the restrictions are extreme, the requirement to get on the sexual offender registry unnecessary. “Instead of trying to rehabilitate people, they set them up to fail because there are so many restrictions on them,” he said. That’s why he, his wife and the rest of the family are fighting. They’ve hired Grabel to investigate the legal recourses potentially at Zach Anderson’s disposal, especially to ease the registry requirement. They’ve created a Facebook page, “Justice 4 Zach Anderson, Elkhart.” They seek donations to help offset legal and other costs, $30,900 and counting. They’re selling yellow “Justice 4 Zach” T-shirts.

“Anybody that’s got common sense looks at this and they’re just blown away,” says Les Anderson. “It comes back to the punishment does not fit the crime. Regardless of how you feel about this, the punishment is way too harsh.”

June 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)

Friday, June 05, 2015

"Sex Offender Law and the Geography of Victimization"

The title of this post is the title of this notable paper with important (and suprising) empirical research now available via SSRN.  The piece is authored by Amanda Agan and J.J. Prescott, and here is the abstract (with my emphasis):

Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised — at least in part — on the idea that sex offender proximity and victimization risk are positively correlated.  We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs.

Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live.  To further probe the relationship between where RSOs live and where sex crime occurs, we consider whether public knowledge of the identity and proximity of RSOs may make offending in those areas more difficult for (or less attractive to) all potential sex offenders.  We exploit the fact that Maryland’s registry became searchable via the Internet during our sample period to investigate how laws that publicly identify RSOs may change the relationship between the residential concentration of RSOs and neighborhood victimization risk.  Surprisingly, for some categories of sex crime, notification appears to increase the relative risk of victimization in neighborhoods with greater concentrations of RSOs

Though I cannot readily assess the underlying empirical research in this paper, I can find remarkable the apparent findings that one is generally safer, at least statistically speaking, living in a neighborhood with more registered sex offender without having notification of that fact. In other words, the empirical work in this paper seems to truly support the aphorism "ignorance is bliss."

June 5, 2015 in Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4)

Friday, May 29, 2015

"For Juvenile Sex Offenders, State Registries Create Lifetime Of Problems"

The title of this post is the headline of this NPR piece.  Here are excerpts:

Forrest Hampton is about to become a family man and he couldn't be happier. He's 25 and he lives in a suburb of Dallas with his fiancée, who's due to have their baby practically any minute. They've already picked out a name: Raven.

In most ways they are a normal family. Except for one thing. Until last year, Hampton was a registered sex offender. "I honestly don't believe I was supposed to be registered in the first place," he says, "but I wasn't in the position to fight my case." That's because Hampton was found guilty at age 13 of having sexual contact with a 9-year-old girl. He says he was a troubled kid, but not a pedophile.

Texas is one of about 40 states that will put children on sex offender registries; half make those registries public. Hampton went through an adolescent sex offender therapy program, and, by the time he was 18, was ready to start fresh. But he says being registered made that impossible....

Hampton's situation is fairly common. That's why, in the last few years, courts and legislatures in states such as Pennsylvania, Michigan and Wyoming, have started to question the practice of registering juveniles.

Bruce Burkland is the director of Teton Youth and Family Services near Jackson Hole, Wyo. Counselors work with kids who were victims of sex crimes as well as juvenile sex offenders. Burkland says a lot of those offenders are technically in their mid-teens, but "developmentally and emotionally their age is much more around eight or nine."

Juvenile sex offenders also re-offend at a much lower rate than adult offenders, according to the Justice Department. Burkland says his therapy is designed to help them build healthy relationships with their peers. But he's not advocating for the registries to go away: some minors are a real threat. "The juvenile who is looking for multiple opportunities and just prefers and likes to have contact with younger children would be a high risk to re-offend, and should be on the registry," he says.

Instead Burkland says prosecutors and judges should have more discretion to figure out who needs to be registered and who doesn't. One of the few people working to change this practice is Nicole Pittman, a director at the advocacy group Impact Justice. "We are criminalizing normative child sexual behavior in large fashion," she says.

Pittman adds that the practice of registering juveniles developed in the '90s, when a series of federal and state laws establishing registries ran head-on into the child super predator scare. In 2006, a federal law started to hold back funding to states that didn't register kids for certain sex crimes. Pittman says the result is that kids are labelled as sex offenders for acting like kids.

May 29, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, May 27, 2015

"Will Mike Huckabee's Forgiveness of Joshua Duggar Extend to Other Youthful Offenders?"

The question in the title of this post is the headline of this provocative Huffington Post commentary authored by Steve Drizin. Here are excerpts: 

I confess that I had never heard of Josh Duggar before Friday. I never watched TLC's 19 Kids and Counting show, never knew that Duggar was the eldest son of the Duggar family clan which includes ten boys and nine girls, never knew that Duggar worked for the Family Resource Council, the influential conservative Christian lobbying group. Mr. Duggar's name didn't register with me until the news broke this week that he had molested young girls, including several of his sisters, when he was a 14-year-old.

Now he matters to me.  Not because of who he is or what he has done, but because Republican Presidential candidate Mike Huckabee came to Mr. Duggar's defense. While other potential Republican conservative candidates, many of whom have been pictured with Duggar over the years or have publicly supported his family's values, stayed silent on the sidelines, Mr. Huckabee moved quickly to call for forgiveness for Mr. Duggar....

Mr. Huckabee's statements have aroused the ire of many of his supporters.  His Facebook page lit up with angry comments from fans.  But I am not writing to join those who want to bury Mr. Huckabee.  As someone who has represented many teenage offenders, I want to praise him.

Mr. Huckabee's call for mercy in this age of retribution is an act of political courage. Although his recognition that youthful offenders are less culpable for their crimes due to their immature judgment and more amenable to rehabilitation is, in the words of the United States Supreme Court, something that "every parent knows" and a matter of "common sense," few politicians -- conservatives, moderates, or liberals -- have echoed his words.  In my book, he gets points for being willing to take a risk, even if he is simply stating the obvious when talking about young people who commit crimes.

But the book is not yet closed on Mr. Huckabee with regard to the Duggar affair.  Will Mr. Huckabee stand silent on these issues in his run for the Presidency? O r will he use this case as a "teachable moment" and engage other conservatives (and moderates, liberals and progressives) in a debate about juvenile justice reform?

Will Mr. Huckabee's endorsement of forgiveness and privacy for Mr. Duggar, extend to the thousands of other adolescent sex offenders, who unlike Mr. Duggar, were convicted of sex offenses and are paying the price by being required to register as sex offenders. Will he call for mercy for these young men and women as well?  Will he support efforts to allow them to prove that they are no longer a danger and no longer need to register? ...

Will Mr. Huckabee's recognition that "being a minor means that one's judgment is not mature" lead him to oppose prosecuting juveniles as adults, housing them in adult jails and prisons, or sentencing them to mandatory prison sentences?  If he truly believes that young people are capable of rehabilitation, will he oppose life without parole and other draconian sentences for juveniles? Will he support greater funding for programs aimed at rehabilitating them? ...

Just how far will Mr. Huckabee's grace extend? Does he believe in second chances only for wealthy, white, or religious teenagers who use their influence and connections to get diverted from our juvenile and criminal justice systems or will he support the same second chances for the poor, mostly black and brown teenagers who fill our juvenile and criminal jails and prisons?

Is this true political courage or one-off favor for a politically connected friend and his family?  Only time will tell.

May 27, 2015 in Campaign 2016 and sentencing issues, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 26, 2015

SCOTUS grants cert on a federal sentencing case and state capital case

This morning's Supreme Court order list, available here, includes two grants of certiorari.  Both cases are criminal cases, Lockhart v. US and Foster v. Humphrey, and here are the links to casepages and the issues via SCOTUSblog:

Lockhart v. US:  Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.

Foster v. Humphrey: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

May 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, May 23, 2015

You be the prosecutor: what sentence will you recommend for convicted "sex on beach" couple?

Regular readers may recall this post from earlier this month, titled "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," which covered the possibility of one member of an indecent couple in Florida facing a mandatory 15-year prison sentence for shoreline dirty dancing with his girlfriend.  But this follow-up post reported that State Attorney Ed Brodsky indicated that "he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach."  Now this news update on the notable case indicates that sentencing is likely to be scheduled in the coming weeks and includes this partial preview:

Jose Caballero, 40, and Elissa Alvarez, 20, were convicted May 4 on two counts each of lewd and lascivious behavior for having sex on Cortez Beach on July 20, 2014. The convictions carry a maximum sentence of 15 years in prison and require both to register as sex offenders....

The State Attorney's Office has said it will not seek the maximum penalty for either defendant, but is looking into jail time for both of them. [Assistant state attorney prosecutor Anthony] Dafonseca said they'd seek a harsher punishment against Caballero, who has served prison time for cocaine trafficking.

The defendants were represented by attorney Ronald Kurpiers, but Alvarez will be represented at sentencing by Greg Hagopian, according to Dafonseca. Hagopian said he didn't want to discuss the reason for Alvarez's switch. She had no criminal record before her conviction.

A few people filed letters on behalf of the defendants, saying the judge should take it easy on Alvarez and Caballero and not make them register as sex offenders. "You are likening these two individuals to deplorable people who have actually taken advantage of or violated children," read a letter signed by Femi Olukoya. "This state needs to grow up and that can start with you," read another letter.

The jury found the couple guilty after a 1 1/2 day trial and only 15 minutes deliberation. One of the witnesses took video of the two in July, showing Alvarez moving on Caballero in a sexual manner in broad daylight.

Unsuprisingly, prior posts about this case generated a lot of notable commentary, and now I am eager to focus discussion on how folks think the state prosecutors here ought to exercise their sentencing discretion. Specifically, I would really like folks to put themselves in the shoes of the Florida prosecutors and state, with some specificity, exactly what sentence they think should be recommended to the sentencing judge in this unusual criminal case.

Prior related post:

May 23, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

Friday, May 22, 2015

"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"

The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:

For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.

I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.

Here is some of what she goes on to say about this very interesting topic:

While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established).  There is a trend toward sexual contact with teenage males.  Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.

In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.

Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped.  Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty.  Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.

Of course, I don’t condone this behavior in the least.  I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.

Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men.  Treatment providers aren’t given special instruction in dealing with women.  The treatment programs are written for men, using statistics about male offenders and past treatment models of men.  Imagine!  Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.

At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders.  This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work.  But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.

A lack of evidence should never be the reason for poor rehabilitation.  It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future.  When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon.  By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.

Research about recidivism rates is also based primarily on male populations and varies drastically.  Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all.  But since the law doesn’t differentiate among sex offenders, these studies are nearly useless.  A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child.  The lumping-together of sex offenses creates confusion even while it feeds public hysteria....

Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment.  It does nothing to address the complex emotional choices that led people to their crimes.  Rather, the justice system beats down already hurting women.

May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Monday, May 18, 2015

DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)

I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire.  Thus, when reading the DC Circuit's recent  opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest.  Here is how the per curiam opinion gets started:

Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation.  See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995).  But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.

Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:

“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008).  I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance.  But the burden of providing a brief explanation is small and the advantages great.  “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”).  It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.

Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:

When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.

In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement.  Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.

May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, May 17, 2015

"Does Michigan's sex offender registry keep us safer?"

B9317136721Z.1_20150516190456_000_G8HANTDOK.1-0The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:

It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies.  Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.

Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons.  It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031.  "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.

Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police.  Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names.  The registries are widely monitored by parents, potential employers and cautious neighbors.

To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online.  But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional.  For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.

Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....

Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors.  No one was charged.

At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law.  But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life.  "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."

But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people.  The supporters also dismiss the research, saying it's impossible to determine who might re-offend.  They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.

"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."

Many parents say the registries makes them feel safer.  Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know."  Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."

Sex offender registry laws were first passed in the 1990s following a string of horrific child murders.  The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.

Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives.  In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....

Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective.  And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law.  For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.

Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes.  A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....

Nationally, there are about 800,000 people registered as sex offenders across the 50 states.  Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens.  It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....

Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant.  Some, though, think tougher laws are in order.  And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.

Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."

A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."

J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees.  He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....

While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.

May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Friday, May 15, 2015

Spectacular work on sex offender registration rules and other "collateral" stories at CCRC

Regular readers surely recall me highlighting all the great work still being done regularly over at the Collateral Consequences Resource Center.  The newest post by Margy Love there, "50-state survey of relief from sex offender registration," demostrates why CCRC must be a regular read for all would-be criminal justice fans.  Here is how it gets going:

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,”discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.

We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals.

It is risky to try to generalize about the results of our study,  However, we found that registration laws seem to fall into three general categories:

  • 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal;
  • 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years;
  • 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years. 

And these other new posts from CCRC recently highlight the critical work being done at CCRC on topics beyond sex offender registration realities:

May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

You be the judge: what sentence for Georgetown's video voyeur Rabbi?

This Washington Post article provides background on a notable sentencing in a DC local court today in which, as highlighted below, the prosecution and defense have radically different sentencing recommendations.  Here are the details:

Sentencing for Barry Freundel, the once-influential Orthodox rabbi who pleaded guilty to secretly videotaping dozens of women as they prepared for a ritual bath, is scheduled for Friday in D.C. Superior Court. The hearing is expected to be an emotional one as many of the victims are expected to speak to Senior Judge Geoffrey Alprin on the impact of Freundel's crime on their lives.

Freundel, 64, was arrested in October on charges that he videotaped six women in the nude while he was at Kesher Israel synagogue in Georgetown.  Prosecutors said a review of his computer equipment revealed that many more women had been recorded by Freundel as they prepared for the bath known as a mikvah — used as part of a purification ritual.

Freundel ultimately pleaded guilty to videotaping 52 women, and the punishment proposed by prosecutors would translate to four months for each victim.  The longtime rabbi had recorded about 100 additional women, prosecutors have said, but those alleged crimes occurred outside the three-year statute of limitations.  The videotaping occurred between 2009 and 2014....

On Thursday, the judge sent out a procedures memo in which he said alerted prosecutors, Freundel and his attorney and victims, as to how the hearing will be conducted.  Each victim who wishes to speak will be allowed only five minutes.  To ensure anonymity for the victims, each woman will be identified by an alphabetical or numerical identifier. Some victims are scheduled to fly in from Israel to speak.

Prosecutors have asked the judge to sentence Freundel to 17 years in prison. Freundel’s attorney, Jeffrey Harris, urged against prison and instead asked the judge to sentence Freundel to community service.  Alprin can adopt either recommendation, or craft another punishment.

Freundel has not spoken publicly about the charges.  He is also likely to speak and because he pleaded guilty, he waived his chance to appeal.  In the memo his attorney wrote to the judge, Harris said Freundel “recognizes and regrets” his actions.  “His conduct has brought shame upon Judaism, the synagogue he once served, his family, and himself,” Harris wrote.

Among the many interesting aspect of this sentencing is whether and how a judge ought to consider the impact of this Rabbi's crimes on those whom he served over many years as a religious leader. This prior Washington Post article, headlined "For those who revered him, D.C. rabbi’s sentencing for voyeurism will not bring closure," highlights their stories. It starts this way:

This week, a D.C. Superior Court judge is scheduled to hand down a penalty for Barry Freundel, a powerful Orthodox rabbi who for years secretly videotaped his female followers as they prepared to submerge in the mikvah, a ritual bath.  But in the Orthodox world where Freundel was once a giant, the fallout of his crimes will continue unspooling.

Some of the hundreds who studied or worshiped with Freundel have stopped going to the mikvah, a ritual that is considered so important in Judaism that women are commanded to use it monthly before sharing any physical intimacy with their husbands.  Others who converted with Freundel are terrified that their status as Jews will forever be in question in their law-focused communities.  Some people have stopped going to synagogue.  Others suffer nightmares in which they are spied upon — and feel complicit.

May 15, 2015 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Wednesday, May 06, 2015

Imprisonment for 15 years for sex on the beach?!?! Really?!?!

ImagesI had heard earlier this week about the Florida couple getting into criminal trouble for having sex in public on a beach, but only this morning have I focused on the reality that, thanks to Florida's severe recidivist sentencing laws, it appears that one of the defendants may have to serve 15 years(!!) in state prison for this crime.  This local story, headlined "Couple found guilty of having sex on Florida beach," explains:

A jury Monday found a couple guilty of having sex on Bradenton Beach after only 15 minutes of deliberation. The convictions carry a maximum prison sentence of 15 years.

Jose Caballero, 40, and Elissa Alvarez, 20, were charged with two counts each of lewd and lascivious behavior for having sex on a public beach on July 20, 2014. Video played in the courtroom during the 1- 1/2-day-long trial showed Alvarez moving on top of Caballero in a sexual manner in broad daylight. Witnesses testified that a 3-year-old girl saw them.

Both Caballero and Alvarez will now have to register as sex offenders.

A sentencing date was not announced, but Assistant State Attorney Anthony Dafonseca said they will pursue a harsher sentence for Caballero than Alvarez, since Alvarez has no prior record and Caballero has been to prison for almost eight years for a cocaine trafficking conviction.

The state will ask for jail time for Alvarez and prison time for Caballero. Dafonseca said due to Caballero being out of prison less than three years before committing another felony, he's looking at serving the maximum time of 15 years. "We gave them a reasonable offer, what we felt was reasonable, and they decided it wasn't something they wanted to accept responsibility for," Dafonseca said. "Despite the video, despite all the witnesses."

Ronald Kurpiers, defense attorney for the couple, said his clients were "devastated," by the verdict. Though Dafonseca hinted that they'd be speaking with the judge about whether or not 15 years was appropriate for Caballero, Kurpiers said the judge would have no discretion. "That's what he'll get," Kurpiers said.

Ed Brodsky, elected state attorney for the 16th judicial district, joined Defonseca in prosecuting the case. When asked why the case was an important one to the state attorney, Dafonseca said it was important that the community knew what wouldn't be tolerated on public beaches. "We're dealing with basically tourists, that came from Brandon and Riverview and West Virginia, and they're here on the beaches of Manatee County, our public beaches," Dafonseca said, referring to the witnesses. "So you want to make sure that this isn't something that just goes by the wayside. And that it is well known to the community, what will be tolerated and what won't be."

Family members who witnessed the act and a Bradenton Beach police officer, as well as Caballero, testified in the case. The defense argued that the two weren't actually having sex, but that Alvarez had been dancing on Caballero or "nudging" him to wake him up. "She wasn't dancing," Dafonseca said during closing arguments. "It's insulting your intelligence to say that she was dancing."

Kurpiers said since the witnesses had not seen genitals or penetration, and neither was visible in the video, either, that saying the two had sex was speculation. "You folks cannot speculate," Kurpiers told the jury. "And in order to say they had intercourse, you would have to speculate."

Brodsky said they weren't calling it the crime of the century, but it was still a violation of Florida law. "Did they try to cuddle, or do it discreetly? Did they go in the water, where people couldn't see?" Brodsky asked the jury. "Did Ms. Alvarez try to drape a towel over herself, or anything? They didn't care."

I do not know Florida sentencing law well enough to know if defendant Caballero is in fact going to have to be sentenced and actually going to have to serve a decade or more in state prison for his misguided dirty dancing on a public beach. This press report makes it sound as though perhaps there may be some means for the sentencing judge to impose a lesser sentencing term, and I think a constitutional challenge based on the Eighth Amendment might also be viable here if state law really does mandate such a severe term in this case.

In addition to wondering whether and how Florida sentencing law may provide the judge with some sentencing discretion in this setting, I especially wonder about the terms of the "reasonable offer" that prosecutors offers to resolve this case via a plea deal. Specifically, I wonder if the offer required either or both defendants to serve significant time incarcerated and required sex offender registration. Especially given all the housing restrictions on registered sex offenders in Florida, that component of any conviction may have led to the defendants being especially eager to try to fight the charges.

May 6, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Sunday, May 03, 2015

“Catching American Sex Offenders Overseas: A proposal for a federal international mandated reporting law”

The title of this post is the title of this notable new law review article authored by Basyle Tchividjian, which I just came across.  Here is an excerpt from the end of the piece's introduction:

In Asia alone, over 62,000 Americans visit each year for the purpose of sexually victimizing children.4 These numbers do not include other parts of the world, nor the United States citizens who reside overseas and sexually abuse children. This considerable problem requires a bold and practical response that has proven to be effective in the United States. It is time that federal law catch up to the states and mandate its citizens who are overseas to report Americans who are suspected of sexually abusing children in foreign countries.

Section II of this Article provides a brief foundational history of mandated reporting laws in the United States.  Section III outlines the increased involvement of the federal government in promoting mandated reporting laws.  Section IV summarizes the modern state of mandated reporting, and Section V analyzes the effectiveness of the current law. Section VI shifts the focus to the growing problem of United States citizens sexually victimizing children in foreign countries.  Section VII introduces and analyzes the PROTECT Act, exposing a significant gap in the ability to enforce this federal law.  Section VIII proposes a federal international mandated reporting law that will help close the gap and allow the PROTECT Act to achieve its objective of identifying and prosecuting United States citizens who sexually abuse children overseas. 

May 3, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, April 26, 2015

"Should former sex offenders be allowed on college campuses?"

The question in the title of this post is the first part of the headline given to this op-ed authored by Stephen JohnsonGrove, deputy director of the Ohio Justice & Policy Center. The rest of the headline, "Blanket policy doesn't work," suggests the author thinks the proper answer to this question is "no." And here are excerpts from the commentary:  

Having a sensible safety conversation about living, working, and learning alongside people with sex-related convictions is fairly rare in Ohio, as it is in the rest of the U.S. Politically expedient fear-mongering and knee-jerk policy-making tend to be the norm, sometimes even creating a social environment where sexual offending is more likely, not less. The Ohio Justice & Policy Center has long been a voice in this state for laws and policies that are firmly rooted in evidence and a long-range commitment to safety.

A recent editorial in the Tri-C student newspaper ("Sex Offenders Mingling with Minors," March 10) raised the possibility of a sensible conversation in the community college context — though not without a little fear-mongering. The scenario painted in that editorial started with a "39-year-old registered sex-offender on parole for two separate cases of gross sexual imposition with both victims being under the age of 13." This may be a good place to start, and perhaps an easier case that we could all agree upon — this person ought not be put in an environment where he could so readily form potentially manipulative relationships with minors again.

There are harder cases, however.  What about OJPC's client who, when a 19-year-old Marine home on leave, attended a party at Ohio State?  While there, he met a young woman who said she was 18 and who certainly looked 18.  After an evening of consensual sex, he was later confronted by her parents — by way of the local prosecutor — for statutory rape of a 16-year-old.  Now in his 40s with children of his own, this man is on the public registry for life and has endured vigilante threats from neighbors who know nothing of the nature of his one and only sex offense, other than what the state-mandated postcard says: "Gross Sexual Imposition, Minor Victim."...

People with sex offenses are — despite any instinctive revulsion we may have to the label "sex offender" — still people.  For some people with certain criminal records with a certain recency, perhaps online learning away from campus is the best alternative.  For others with solid records of rehabilitation, we can and should welcome them into all aspects of our community — colleges included.

April 26, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Sunday, April 19, 2015

After mistrial and plea deal, prominent accused child molestor in Delaware gets probation sentence

As noted in this recent post, there has been considerable controversy in California over a state judge earlier this month sentencing a teenager who pleaded guilty to a single child sex offense to "only" 10 years of imprisonment, a term well below the applicable 25-year mandatory minimum statutory sentencing term.  (Bill Otis here at Crime & Consequences also complained about the judge's sentencing decision California case).  With that recent case in mind, a notable contrast in context and outcomes emerges from this child sex offense story from Delaware.  Here are the dynamic details (with a few bits of the story highlighted for subsequent comment):

Eric Bodenweiser — once a standardbearer of the Sussex County tea party, described by voter after voter in 2012 as a trustworthy Christian man — was sentenced to one year of probation Friday for committing two acts of unlawful sexual contact against a young boy in the 1980s.  A judge sentenced Bodenweiser to a year in prison, but suspended it in lieu of the probation term.  If Bodenweiser obeys the conditions of probation, he will not return to confinement. He must also register as a Tier 1 sex offender....

The sentence for Bodenweiser, 56, of Georgetown closes a scandalous chapter in Sussex politics.  But for his indictment on more than 100 sex offenses in October 2012, Bodenweiser would likely be a state senator today, and not a sex offender.  He had handily beaten an incumbent Republican senator in the September 2012 GOP primary in a district Democrats weren't likely to win.  Days before his arrest, he abandoned his campaign.

Bodenweiser pleaded not guilty, and after a weeks-long trial in 2014, a jury was unable to reach a unanimous verdict on any one of 15 counts prosecutors brought in front of them.  After the mistrial, Bodenweiser convinced Bradley any fair retrial would have to happen outside Sussex County because of the case's intense publicity and news coverage.

Prosecutors struggled, meanwhile, to keep the victim out of trouble.  The man, who was in middle school when Bodenweiser was in his early 20s, lost his temper more than once on the stand under caustic questioning from Bodenweiser's attorney, Joe Hurley.  And after the first trial ended, he was charged by Delaware State Police with a gun offense.

But before a second trial began, Bodenweiser accepted a plea offer from prosecutors on March 18, pleading no contest to two less serious crimes with the knowledge it meant a guilty verdict.

The victim, now in his late 30s, testified that repeated sexual advances and assaults by Bodenweiser affected him deeply.  "I couldn't understand why it kept happening and why he wanted me to do these things," the man said last year in court.  "I thought something was wrong with me." He came forward after years of silence, he testified, because he was alarmed Bodenweiser was about to win the election.

At his trial, Bodenweiser was charged with but ultimately not convicted of raping the victim, forcing him to take part in complete sex acts.  That, though, is not what he pleaded no contest to in March; his pleas were for the lesser offenses of unlawful sexual contact, of "touching the genitalia" of the boy, as prosecutor John Donahue said in court.

Bodenweiser took the stand at trial to deny exposing the boy to anything more salacious than an occasional glimpse of pornography.  His pastor, though, testified that in the fall of 2012, Bodenweiser told him "there's something there, there," in the context of discussing the accusations. Hurley fought hard, court records show, to have the pastor's testimony excluded from trial.

In my discussion of the California sex offense sentencing case over at Crime & Consequences, I stressed that I am generally more concerned about prosecutorial discretion than judicial discretion because of how opaque and consequential prosecutorial discretion can be.  In this case, I cannot help but wonder if politics played a role in the timing of the prosecutorial decision to indict a up-and-coming outsider politician for over 100 sex offenses that allegedly took place 25 years earlier.  Notably, the defendant had his political career ruined just by the prosecutorial decision to indict on so many salacious charges.

Despite his career being ruined just by the charges, the defendant here exercised his right to require the prosecution to prove up its case in a public trial.  Once a public open trial was required, prosecutors apparently decided only to seek to prove up 15 of the 100+ alleged offenses, which makes me further question the evidentiary basis for the 100+ charges in the initial indictment.  And even with only its 15 strongest charges now in play, the prosecutors could not convince a jury that the defendant as guilty of a single charged offense.

Thereafter, perhaps because prosecutors finally realized how weak their case was now that it was subject to public review and scrutiny, prosecutors decided they could be content with the defendant getting sentenced to probation for what they previously alleged was 100+ sex offenders.  But still eager to have this defendant forever officially branded a sex offender, the prosecutors sought to cut the defendant a deal he could apparently thought unwise to refuse.

I am not asserting that state prosecutors here did anything wrong in the way they handled this notable child sex offense case. What I am saying is that I would like a whole lot more information about how and why state prosecutors did what they did.  But, to my knowledge, there are no ready means for me or anyone else in the general public to get more information or understanding about what may have (and have not) influences prosecutorial decision-making in this matter.

April 19, 2015 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, April 16, 2015

Effective review of on-going reviews of sex offender residency restrictions

This new reporting by Steven Yoder via The Crime Report provides an effective update on what is going on lately with state-level sex offender residency restrictions and other sex offender laws and policies. The extended piece has this extended headline: "You Can’t Live Here: Do residency bans and other tough measures on sex offenders work?  The evidence suggests they are counterproductive — and some states are already shifting policies."  Here are excerpts:

Last month, the California Supreme Court ruled such blanket residency bans [on sex offenders] unconstitutional. It based the decision in part on evidence that residency laws drive up homelessness among offenders and make it harder for state authorities to monitor and rehabilitate them.  It’s the latest sign that science has begun to trump passion on what is one of the most sensitive areas of criminal justice.

During the 1990s, at least 30 states enacted residency restrictions on convicted sex offenders who were released into their communities, as part of what appeared to be an increasingly harsh crackdown across the nation.  Congress passed six new federal laws that ratcheted up penalties on those convicted of sex crimes.  In some towns, the crackdown has extended to ordinances prohibiting those with a sex offense on their record from putting up Halloween decorations....

Today more than 20 states have sex offender policy boards, says Chris Lobanov-Rostovsky program manager for Colorado’s Sex Offender Management Board. That number is down slightly since 2010 — that year, 24 states had boards, according to a 2010 report by the Center for Sex Offender Management, funded by the Department of Justice.

A few of these groups last just a year or two and tackle discrete issues like how to certify sex offender treatment providers. Others take on broader offender management policies, weighing in on the likely impact of proposed bills.

Colorado’s board has run for more than 20 years, and Lobanov-Rostovsky gets about half a dozen calls a year from other states asking for advice on setting up their own boards. He travels to about one state a year to offer hands-on help, though he’s not aware of any states that have set up new boards in the last two years.

Boards normally pull in the groups that matter on the issue, typically including representatives of state law enforcement and other agencies, prosecutors, defense attorneys, judges or their representatives, sex offender treatment professionals, and victim advocates.  Some boards have full or part-time salaried staff, as in Colorado’s case. Not surprisingly, boards with staff are more productive than those without, Lobanov-Rostovsky says.

April 16, 2015 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, April 15, 2015

"Database Infamia: Exit from the Sex Offender Registries"

The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:

Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means.  Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.

This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.

April 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, April 10, 2015

Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term

As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:

Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.

At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.

"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.

"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."

Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...

Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."

But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...

Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...

The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....

"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.

During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."

The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.

The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."

Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.

"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.

Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.

April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction

Long-time readers may recall the remarkable state sentencing story, covered here and here,  involving Daniel Enrique Guevara Vilca.  In 2011, a Florida circuit court judge sentenced Vilca, then aged 26 and without any criminal record, to LWOP based on a laptop containing hundreds of pornographic images of children.  On appeal, Vilca challenged his trial and his severe sentence, and he prevailed in an opinion released just today.  Here are part of the opinion in Guevara-Vilca v. Florida, No. 2D11-5805 (Fla. App. 2d Dist. Apr. 10, 2015) (available here), with a few cites omitted):

Daniel Guevara-Vilca appeals his convictions for possession of child pornography.  Owing to a discovery violation by the State, we reverse and remand for a new trial....

During the trial, the State introduced 206 photographs and 248 videos containing child pornography, each of which was charged in a separate count.  The file names generally contained descriptive terms.  All of the material had been downloaded to the laptop from January 2009 to January 2010 using LimeWire, a file-sharing program.  The files were found in thirteen different folders on the computer, including the recycle bin....

The jury returned guilty verdicts on all 454 counts.  Although Guevara-Vilca had no prior criminal record, under his sentencing scoresheet the minimum permissible sentence was 152.88 years in prison; the scoresheet contained enough points to permit a sentence as severe as life imprisonment.  The trial court sentenced Guevara-Vilca to 454 concurrent life terms....

Guevara-Vilca raises multiple issues on appeal.  We agree with his assertion that the trial court erred in its handling of the State's discovery violation.  The State was required to disclose Guevara-Vilca's pre-Miranda response to the detective's question, see Fla. R. Crim. P. 3.220(b)(1)(C), and it admittedly did not do so.... The record cannot be said to affirmatively reflect that the discovery violation caused no prejudice to the defense; to the contrary, the record strongly supports the opposite conclusion....

We reverse Guevara-Vilca's convictions and remand for a new trial.  This renders moot, for now, the sentencing issue raised on appeal.  Guevara-Vilca argued, below and on appeal, that a life sentence violated the constitutional prohibition against cruel and unusual punishment.  Our analysis of the sentence at this point would be dicta, and it is not our intention to prejudge an issue that may be raised in a subsequent appeal if Guevara-Vilca is convicted on remand.  But the issue, if raised, deserves serious consideration by the sentencing court.  Indeed, it is noteworthy that if Guevara-Vilca had been charged with possession of child pornography with intent to promote, he could have been convicted and sentenced for only one second-degree felony count rather than 454 third-degree felony counts.

Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure. Guevara-Vilca's mother testified at sentencing that her son was born prematurely and that, at ages five and around thirteen, he had surgeries to remove brain tumors.  Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he graduated from high school, his grades were "D's and E's."  Cf., e.g., § 921.0026(c), (d), Fla. Stat. (2008) (providing for downward departures when defendant's capacity to appreciate criminal nature of conduct or conform to law was substantially impaired; or when defendant requires, and is amenable to, treatment for mental disorder unrelated to substance addiction).

Prior related posts:

April 10, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Thursday, April 09, 2015

"Reality check: Is sex crime genetic?"

ImagesThe question in the title of this post is the headline of this interesting new Science piece that a helpful reader sent my way.  Here are excerpts:

A splashy headline appeared on the websites of many U.K. newspapers this morning, claiming that men whose brothers or fathers have been convicted of a sex offense are “five times more likely to commit sex crimes than the average male” and that this increased risk of committing rape or molesting a child “may run in a family’s male genes.”  The study, published online today in the International Journal of Epidemiology, analyzed data from 21,566 male sex offenders convicted in Sweden between 1973 and 2009 and concluded that genetics may account for at least 40% of the likelihood of committing a sex crime. (Women, who commit less than 1% of Sweden’s sexual offenses, were omitted from the analysis.) The scientists have suggested that the new research could be used to help identify potential offenders and target high-risk families for early intervention efforts.

But independent experts — and even the researchers who led the work, to a certain degree — warn that the study has some serious limitations. Here are a few reasons to take its conclusions, and the headlines, with a generous dash of salt.

Alternate explanations: Most studies point to early life experiences, such as childhood abuse, as the most important risk factor for becoming a perpetrator of abuse in adulthood. The new study, however, did not include any detail about the convicted sex criminals’ early life exposure to abuse.  Instead, by comparing fathers with sons, and full brothers and half-brothers reared together or apart, the scientists attempted to tease out the relative contributions of shared environment and shared genes to the risk of sexual offending....

Data on sexual crimes are tricky to obtain and parse: It’s extremely difficult to collect sufficient data about sexual offenders and their families to detect statistically robust patterns.  Sweden is unusual because its nationwide Multi-Generation Register allows researchers to mine not only anonymized criminal records, but also to link them with offenders’ family records as well.  Even with access to a nationwide database, Seena Fazel, of the University of Oxford in the United Kingdom, and colleagues had to include a very diverse range of offenses, from rape to possession of child pornography and indecent exposure, to maintain a large sample size.

The team did do some analysis by type of offense, separating rape from child molestation, for example.  But some researchers worry that attributing a genetic basis to such a wide swath of behaviors is premature.  There are also problems with relying on conviction records: Many more sexual crimes are committed than reported, and the proportion of those that go to trial is even smaller.

In addition, families with one member who has been convicted of a sexual offense are likely to be under much higher scrutiny by social services and law enforcement, leading to potential detection bias that artificially enhances the perception that sex crimes run in families, says Cathy Spatz Widom, a psychologist at the City University of New York who studies the intergenerational transmission of physical and sexual abuse.  In a recent study, for example, Widom found that parents with a formal record of being abused as children were 2.5 times more likely to be reported to Child Protective Services for abusing their own children than parents in a control group who admitted to abusing their children, or whose kids said they had been mistreated.

The absolute risk of becoming a sex offender is very low: One of the study’s more dramatic-sounding findings is that brothers and fathers of sex offenders are four to five times as likely as men in the general population to commit sex crimes themselves. That statistic seems pretty striking until you look at the low prevalence of sex offense convictions in Sweden overall....

In summary, there’s no doubt that some families are at a higher risk for abuse and criminal behaviors, including sexual offenses.  But we’re a long way from pinning down genes that can explain why a person commits rape or any other sex crime.

April 9, 2015 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Wednesday, April 08, 2015

Federal judge finds unconstitutional "geographic exclusion zones" for sex offenders in Michigan

Thanks to a helpful reader, I did not miss this notable new story from the state up north headlined "Sex offenders can be within 1,000 feet of schools after federal judge strikes down parts of law." Here are the details:

A federal judge struck down some portions of Michigan's Sex Offender Registry Act in a court decision handed down last week.  U.S. District Court Judge Robert Cleland issued a ruling March 31, striking down four portions of Michigan's Sex Offender Registry Act, calling them unconstitutional.  The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of five John Does and one Jane Doe against Michigan Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue.

Cleland's ruling stated the "geographic exclusion zones" in the Sex Offender Registry Act, such as student safety areas that stretch for 1,000 feet around schools, are unconstitutional, according to court documents.  

The law is too vague on whether the 1,000 feet barrier should be as the crow flies or how people actually travel, and if it goes from building-to-building or property-line-to-property-line, Cleland said in his ruling.  "While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are susceptible to vagueness concerns," he wrote.

Cleland also stated law enforcement doesn't have strong enough guidelines to know how to measure the 1,000-foot exclusion zone around schools. Neither sex offenders or law enforcement have the tools or data to determine the zones, even if the guidelines on how to measure the zones were stronger, he said. "Accordingly, due to (the Sex Offender Registry Act's) vagueness, registrants are forced to choose between limiting where the reside, work and loiter to a greater extent than is required by law or risk violating SORA," he wrote.

Cleland struck down other portions of the law as well, but ruled in favor of the government on the rest of the lawsuit. Other portions of the law ruled unconstitutional were: a requirement to report in person to the "registering authority" when an offender begins to drive a vehicle regularly or begins to use a new e-mail or instant messaging address; a requirement for an offender to report all telephone numbers routinely used by an offender; a requirement to report all e-mail and instant messaging addresses; a requirement to report the license plate number, registration number and description of any motor vehicle, aircraft or vessel used by an offender....

The ruling drew an immediate reaction from State Sen. Rick Jones, R-Grand Ledge. In a statement released Tuesday morning, Jones, a former sheriff, said he plans to help rewrite the law to make up for the judge's ruling. "I warn sex offenders to stay away from schools. This is one judge's ruling, and the law will soon be changed to clarify it," said Jones, the chair of the Senate Judiciary Committee. "I'm working to make sure there is no vagueness in Michigan's Sex Offender Registry law. Child molesters must stay away from our schools. Law enforcement will be watching."

The full ruling, which runs 70+ pages, is available at this link.

April 8, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Friday, April 03, 2015

Should age matter at sentencing of elderly child molester?

The question in the title of this post is prompted by this local article headlined "Sentencing delayed for 89-year-old child molester in Santa Cruz County." Here are excerpts:

An 89-year-old Felton man is expected to be sentenced in May for molesting a girl younger than 9, but her supporters fear that his advanced age might play a role in a reduced sentence.

Thursday, Santa Cruz County Superior Judge Stephen Siegel delayed a sentencing for Eric Frank Greene, who already pleaded no contest to a felony charge of lewd acts with a minor. The crimes took place in 2004....  Prosecutor Rafael Vazquez said he does not believe there are other victims.  

Greene faces a wide range of sentences, from probation to up to eight years in prison. “I haven’t made an ultimate decision, but I am contemplating probation,” Siegel said in court Thursday.

More than 15 supporters of the victim attended the hearing, and Siegel said he received a folder full of letters about the case from many of them Wednesday that he needed to review. Because probation is his indicated sentence, the law requires Greene to be evaluated by a psychologist and by County Probation leaders to see if he would benefit from probation....

Greene, who has no criminal record in Santa Cruz County, remained out of jail. He said in court that he has severe hearing problems, but he walked without a cane or other aid and appeared in good health.

Vazquez said outside court that Greene caused ongoing psychological harm to the victim. “It doesn’t matter that he’s that old,” Vazquez said of Greene outside court.  “The fact is that he’s committed this egregious act. They want him to be held accountable just like any other person.”

April 3, 2015 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Monday, March 30, 2015

Two SCOTUS summary reversals: a notable sex-offender monitoring issue and another AEDPA enforcement

In addition to granting cert on a bunch of Kansas capital cases, the US Supreme Court this morning issued two short per curiam summary reversals today in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), and Woods v. Donald, No. 14-618 (S. Ct. March 30, 2015) (available here).  The second of these rulings is just another example of the Justices helping a circuit (this time the Sixth) better understand that AEDPA precludes a habeas grant unless and until an "underlying state-court decision [is] 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' [the Supreme Court]."  

But the first of these rulings are notable because it clarifies and confirms that the Fourth Amendment is applicable to sex offender monitoring.  Here are key passages from the ruling in Grady:

Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender.  See N. C. Gen. Stat. Ann. §§14–208.40(a)(1), 14– 208.40B (2013).  Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes.  He argued, however, that the monitoring program — under which he would be forced to wear tracking devices at all times — would violate his Fourth Amendment right to be free from unreasonable searches and seizures.  Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life....

The only explanation provided below for the rejection of Grady’s challenge is [a] passage from [a prior state ruling].  And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment.  That theory is inconsistent with this Court’s precedents....

[T]he State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information.  If the very name of the program does not suffice to rebut this contention, the text of the statute surely does....  The State’s program is plainly designed to obtain information.  And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.

That conclusion, however, does not decide the ultimate question of the program’s constitutionality.  The Fourth Amendment prohibits only unreasonable searches.  The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.  See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable).  The North Carolina courts did not examine whether the State’s monitoring program is reasonable — when properly viewed as a search — and we will not do so in the first instance.

March 30, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 29, 2015

Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion

This local article from the Beaver State, headlined "Oregon Supreme Court to consider: Is it 'cruel and unusual' to imprison public masturbator for life?," reports that the top court in Oregon is taking up a notable sentencing issue in a notable setting. Here are the details:

William Althouse is serving a life prison sentence -- but not because, like many in that situation, he killed someone.  Althouse, 69, has repeatedly exposed his genitals in public with sexual intent. In 2012, after a Marion County jury found him guilty of that conduct again, a judge sentenced him to life without any hope of being released.

The Oregon Supreme Court, however, announced Thursday that it will consider if that amounts to cruel and unusual punishment.  The sentence is disproportionate to the offense, said Daniel Carroll, the defense attorney who represented Althouse at trial, told The Oregonian/OregonLive on Friday. "No one died," he said.

The high court's consideration of the case seems particularly timely given another lengthy sentence -- 18 years -- handed down to a 49-year-old Sherwood man last week who was found guilty of masturbating or exposing himself eight times at the drive-through windows of fast-food restaurants and coffee shops.

In Althouse's case, the state likely will point out that he isn't only a serial flasher -- his life sentence was meant to reflect a long and concerning history of sex offenses. His sex crime convictions include sexual abuse in 1982 and kidnapping, sodomy and sexual abuse in 1993.

Typically, first-time public indecency offenders receive probation and counseling. It's unclear from court records how many times Althouse has been convicted of public indecency, but when he was convicted in 2002 of the crime, court records indicate that he had at least one earlier conviction.

Althouse, who was living in Salem, was arrested in his last case after a female jogger reported seeing him exposing his genitals -- the prosecution contended masturbating -- along a walking path next to the Salem Parkway in October 2011.  After a jury found him guilty in 2012, Marion County Circuit Judge Lindsay Partridge sentenced Althouse to the life term under an Oregon law meant to get tough on sex offenders after their third felony sex conviction.

One of many interesting aspects of this case is the import and possible impact of the age of the offender. In recent SCOTUS rulings, some Justices seemed sensibly influenced by the reality that an LWOP sentence for a juvenile offender can be functionally worse than even a no-parole 50-year sentence. But for an offender in his late 60s, an LWOP sentence is arguably functionally no worse than a no-parole 50-year sentence. Whether and how that should matter for constitutionally purposes is an issue still not yet resolved in debates over LWOP sentences that have been described as "living death sentences."

March 29, 2015 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Saturday, March 28, 2015

Notable effort by "World’s Worst Mom" to take on sex offender registries

This new Salon piece provides an interesting Q&A with notable author who has become famous for criticizing overprotective parenting and who is now criticizing what she sees as ineffective sex offender registries.  The piece is headlined "Stop the sex-offender registry panic: 'A lot of those dots on the map would never hurt your kids'," and here is how the Q&A is introduced:

Lenore Skenazy came to fame for letting her 9-year-old son ride the New York subway home by himself.  Or rather, she came to fame by letting him ride the subway home alone and then writing about it for the New York Sun.

The piece led to an outcry — she was dubbed “America’s worst mom” — which, of course, meant that the essay had to become a book: “Free-Range Kids, How to Raise Safe, Self-Reliant Children (Without Going Nuts With Worry).”  In the five years since its publication, the book has inspired a movement among parents who want to give their children the freedom to do things like walk home from school alone.  It’s a backlash to our age of “helicopter” and “bubble wrap” parenting. (If you suspect these monikers are exaggerations, consider that a Skenazy devotee recently had five police cars arrive at his house after his 10- and 6-year-old were seen walking alone.)  Now Skenazy has a show on the Discovery Life channel, “World’s Worst Mom,” which sees her swooping into homes and coaching overprotective parents in a style reminiscent of the ABC reality-TV show “Suppernanny.”

Recently, Skenazy has taken on a new, albeit related, cause: reform of the sex offender registry. Clearly, this lady is not afraid of controversy. On Sunday, she held a “Sex Offender Brunch” at her house to introduce “her friends in the press to her friends on the Registry.” One of her guests was Josh Gravens, who at age 12 inappropriately touched his 8-year-old sister and landed on the registry as an adult.... The materials accompanying her press release contend that the sex offender registry, which was created to “let people identify dangerous individuals nearby…has failed to have any real impact on child safety, and may actually do more harm than good.”  

She’s effectively flinging open the closet door and saying, “See? There’s no boogeyman in there” (or, if you will, flipping on the lights to offer assurance that the “monster” in the corner is actually just a lamp that made some mistakes when it was younger and means no harm).  This is entirely consistent with her “Free-Range Kids” activism, but she’s taking it a step further now, moving beyond just squashing parental fears about stranger danger to helping those who have been unfairly labeled as dangerous strangers.

March 28, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, March 27, 2015

Prodded by state court ruling, California announces it will not enforce sex offender residency restrictions

The potential import and impact of state court litigation over collateral consequences is on full display now in California as a result of the news reported in this Los Angeles Times article:

California officials announced Thursday that the state would stop enforcing a key provision of a voter-approved law that prohibits all registered sex offenders from living near schools. The California Department of Corrections and Rehabilitation said it would no longer impose the blanket restrictions outlined in Jessica's Law that forbids all sex offenders from living within 2,000 feet of a school or park, regardless of whether their crimes involved children.

High-risk sex offenders and those whose crimes involved children under 14 will still be prohibited from living within a half-mile of a school, the CDCR emphasized. Otherwise, officials will assess each parolee based on factors relating to their individual cases, the agency said. The shift comes nine years after California voters approved the controversial law, which has made it difficult for some sex offenders to find places to live.

The California Supreme Court on March 2 unanimously ruled that Jessica's Law violated the constitutional rights of parolees living in San Diego County who had argued that the limitations made it impossible for them to obtain housing. As a result, advocates said, some parolees were living in places like riverbeds and alleys.

"While the court's ruling is specific to San Diego County, its rationale is not," CDCR spokesman Luis Patino said Thursday. "After reviewing the court's analysis, the state attorney general's office advised CDCR that applying the blanket mandatory residency restrictions of Jessica's Law would be found to be unconstitutional in every county."

The CDCR sent a memo to state parole officials on Wednesday outlining the policy change. The directive said residency restrictions could be established if there was a “nexus to their commitment offense, criminal history and/or future criminality." The memo said officials would soon provide further direction on how to modify conditions for parolees currently already living in the community....

A CDCR report found that the number of homeless sex offenders statewide increased by about 24 times in the three years after Jessica's Law took effect. Parole officers told the court that homeless parolees were more difficult to supervise and posed a greater risk to public safety than those with homes....  The court ultimately determined that the residency restrictions did not advance the goal of protecting children and infringed on parolees' constitutional rights to be free of unreasonable, arbitrary and oppressive government action.

This news reinforces my view that California's Supreme Court ruling in In re Taylor, S206143 (Cal. March 2, 2015) (available here) was especially significant for the future of sex offender residency restrictions.  I am not surprised that California state officials concluded after reading Taylor that it had to modify how it approached Jessica's Law.  The next big question is whether and how courts in other states will respond if and when Taylor is used by advocates to attack other residency restrictions similar to Jessica's Law. 

A few prior recent related posts:

March 27, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, March 23, 2015

Did serial rapist, former NFL star Darren Sharper, benefit from celebrity justice in global plea deal?

The provocative question in the title of this post is prompted by the notable celebrity sentencing news breaking today and reported in this extended USA Today article headlined "Darren Sharper sentenced to nine years in first of plea deals." Here are the details:

Former NFL star Darren Sharper was sentenced to nine years in prison Monday in Arizona after pleading guilty to sexual assault and attempted sexual assault in November 2013, the Maricopa County Attorney's office confirmed to USA TODAY Sports.

Sharper, 39, entered his pleas Monday in Arizona from Los Angeles, where he was expected to appear in court later in the day and enter a guilty plea in connection with two other rape allegations from 2013 and 2014.

The pleas are part of an attempted "global" plea agreement that could resolve all nine rape charges against him in four states. In addition to the charges in California and Arizona, he faces two rape charges in Las Vegas and three in New Orleans, where is expected to enter guilty pleas within the next month.

The sentences will run concurrently in federal prison, said Jerry Cobb of the Maricopa County Attorney's office. Sharper is not eligible for early release in Arizona, but will be credited for time served in Los Angeles, where he has been in jail without bail since Feb. 27, 2014.

By agreeing to the plea deal, Sharper, 39, avoids the risk of receiving an even worse punishment in the future and expensive litigation that could drag on indefinitely in four states. If convicted, he faced life in prison in Louisiana and more than 30 years in Los Angeles. For prosecutors, the plea deal avoids the risk of going to trial, where juries might be influenced by Sharper's fame and celebrity defense attorneys.

His suspected string of serial rapes ended in January 2014, when he was arrested on a suspicion of rape in Los Angeles. At the time of his first arrest, he had 20 zolpidem pills in his possession – a sleep drug known by its brand name Ambien. Sharper obtained a prescription for the drug after suffering sleep problems he attributed to his 14-year career in the NFL with the New Orleans Saints, Green Bay Packers and Minnesota Vikings, according to a workers compensation claim form he filed in 2012.

The drug can be slipped into drinks to knock out women and rape them, and that's what authorities say Sharper did time after time, according to court records. Sharper ultimately was charged with nine rapes in four states, including three in consecutive nights in two different states in January 2014.

None of the cases went to trial or even received an evidentiary hearing except in Arizona, where a judge ruled last April there was "proof evident" Sharper raped a women there in November 2013. DNA found inside the women's body partially matched Sharper's, and a witness reported waking up and seeing Sharper naked and making thrusting movements over the woman, according to a detective's testimony at the hearing.

The detective said the woman hadn't known Sharper before that night and didn't remember what happened to her after consuming a drink Sharper made her. Zolpidem was found in the cup in subsequent tests. Though Sharper's attorney noted that none of Sharper's sperm was found on the alleged victims in Arizona, the detective said he was told that Sharper had a vasectomy, which could explain the lack of sperm. The revelation caused a stir that day in Arizona, where Sharper was charged with drugging three women and raping two of them.

In Los Angeles, he was charged with drugging and raping two women – one in October 2013 and one in January 2014. In the first one, Sharper met two women at a club in West Hollywood and later invited them to his hotel room, where he offered them a drink, according to a police report of the incident filed in court....

In New Orleans, Sharper was accused of drugging and raping two women in September 2013. He also faced federal drug charges and another rape charge from Aug. 31, 2013, all of it happening just a few years after he helped the Saints win a Super Bowl in 2010.

Though the evidence against Sharper has not, obviously, been proven in court, this press account and his global plea leads me to think he truly is guilty of nine rapes. And assuming that is true, a year in prison for each of nine rapes is a pretty sweet plea deal. Ergo the question in the title of this post.

March 23, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, March 10, 2015

Depressing news that sentencing toughness is doing little to deter child porn offenses

Regular readers know about the severity of some federal and state sentencing schemes for the downloading of child pornography.  The federal sentencing guidelines often recommend sentences of a decade or longer just for downloading child porn (though federal judges do not always follow these guidelines).  In one notable case from Florida, as reported here, a first offender received an LWOP sentence for downloading illegal images on a laptop.  And in Texas a few years ago, as reported here, a child porn downloader received a sentence of 220 years (though probably mostly do to evidence of lots of child molesting).

I have long hoped that these kinds of severe sentences for computer sex offenses would help serve to deter others who might otherwise be inclined to be involved in the harmful and disturbing activity of creating and distributing sexual picture of children.  Sadly, though, according to this discouraging new Houston Chronicle article, child pornography still "is increasing fast, authorities say." The article is headlined "Child porn reports soaring with technology upgrades," and here are excerpts: 

Every week in the Houston area, FBI agents execute warrants on child pornography charges, said agency spokeswoman Shauna Dunlap. "It's one of our busiest areas," Dunlap said. "We're serving search warrants or arrest warrants across the city and county area, whether for our (Houston Area Cyber Crimes) Task Force or the (Harris County) District Attorney's Office."

On Feb. 13, William Butler Myers of Meadows Place in Fort Bend County was sentenced to nearly 20 years (236 months) in federal prison for attempted production of child pornography involving a 14-year-old girl, U.S. Attorney Kenneth Magidson's office announced. Myers, 43, entered a guilty plea on Nov. 21, 2013. Charges against Myers resulted from evidence found on a cellphone that he took to a repair shop. A shop employee called police after seeing what he thought was child pornography on the phone, officials said.

Cellphone evidence also led to charges against Jason Ryan Bickham, 32, of Orange. He pleaded guilty in September to possession of child pornography and was sentenced Feb. 24 to 10 years in federal prison, U.S. Attorney John M. Bales of the Eastern District of Texas announced last month.

With technology advancing rapidly, federal authorities expect the crime of creating, possessing or distributing pornographic images to increase as well, Dunlap said. "One of the issues and concerns with child pornography is that, once those images are shared, there's a great possibility for the victims to be revictimized each time those images are traded and shared," she said....

Like most crimes, this one cuts across socioeconomic lines. "We've had affluent individuals, those in positions of trust and regular, everyday individuals," Dunlap said. "There's not necessarily any particular stereotype with this crime."

On Thursday, March 12, former Denton High School teacher Gregory Bogomol is scheduled to be sentenced in federal court in Fort Worth after pleading guilty to two counts of producing child pornography. Each count carries a maximum sentence of 30 years in federal prison. Bogomol allegedly used social media applications such as KIK, Grindr, and Pinger to initiate conversations with underage males and to entice boys to produce sexually explicit pictures, authorities said.

Terry Lee Clark of Corpus Christi, who admitted possessing more than 5 million pornographic images, was sentenced Feb. 26 to eight years in federal prison, according to a news release from the office of U.S. Attorney Kenneth Magidson for the Southern District of Texas. Clark pleaded guilty in October to possession of illegal pornograpic images, including about 47,000 involving pre-pubescent females, some under the age of 12, engaging in sexually explicit conduct with adult males, authorities said.

On Feb. 17, a Galveston jury convicted William Cody Thompson of two counts of possession of child pornograpny. He was sentenced the next day to 10 years in Texas state prison on each count, with the sentences to run consecutively. Agents with the Houston Metro Internet Crimes Against Children Task Force conducted an investigation, which led to a 2013 search warrant for Thompson's residence and the discovery of thousands of pictures and videos on multiple computers, officials said.

Since 2010, child pornography reports to the National Center for Missing and Exploited Children's cyper tip line have skyrocketed, said John Shehan, executive director of the agency's Exploited Child Division. "We certainly have an increasing trend," he said, noting that 223,000 reports were received in 2010, compared with 1.1 million in 2014 and 560,000 in the first two months of this year.

Part of the spike is explained by a federal law that requires electronic service providers to make a report to the Cyber Tip Line if they become aware of child pornography images on their systems, Shehan said. "Many companies are proactively looking on their network for child sexual abuse images," he said, which likely means they learn about more images than they would by happenstance.

Also boosting the numbers, Shehan said, is the fact that pictures are easily spread around the globe online, he said. Of this year's half-million reports to the tip line, 92 percent were linked back to IP addresses abroad, he said.

However the number of federal child-exploitation cases brought against defendants between 2009 and Fiscal Year 2014 has hovered around 2,100, dipping to 2,012 in Fiscal Year 2012 and jumping up to 2,331 the next year.

This story confirms what social scientists have long known about deterrence: even a very severe punishment is unlikely to deter if its imposition is neither certain nor swift. This story suggests that there may well be at least 1000 other child porn offenses for every one that gets prosecuted. Even if a jurisdiction were to try imposing a death sentence for child porn offenses (which, of course, the Supreme Court has held to be unconstitutional in the US), such a severe sanction would be very unlikely to deter when there is less and a .1% chance of any offender getting caught.

I have long been concerned about the efficacy of severe child porn sentences in the federal system, and this story heightens my concern. In the end, I think some distinct technology and a kind of economic sanction on tech facilitators of this scourge is now needed far more than still tougher sentences (which may not even be possible) in order to deal with this still growing problem.

March 10, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack

Sunday, March 08, 2015

Can a sheriff prohibit sex offenders from a church that is sometimes a school?

The question in the title of this post is prompted by this story coming from North Carolina, headlined "Graham sheriff bans sex offenders from church." Here are the details:

A sheriff in one of North Carolina's smallest counties told sex offenders they can't attend church services, citing a state law meant to keep them from day care centers and schools. Sheriff Danny Millsaps, in Graham County, told the registered offenders about his decision on Feb. 17, according to a letter obtained by the Asheville Citizen-Times on Friday....

"This is an effort to protect the citizens and children of the community of Graham (County)," he wrote. "I cannot let one sex offender go to church and not let all registered sex offenders go to church." He invited them to attend church service at the county jail.

Millsaps, in an interview on Friday, said he may have made a mistake when he wrote that offenders "are not permitted to attend church services." He said he understands the Constitution gives everyone the right to religious freedom. But, he said, he's standing by his take on the law blocking offenders from places where children are present.

"I understand I can't keep them from going to church," he said. "That may have been misunderstood. I'll be the first one to say I might have made mistakes in the wording of that letter." He said he has no immediate plans to arrest a sex offender should one of the 20 in his county attend church on Sunday.

Graham County Manager Greg Cable said the county attorney is looking into the matter and any legal mistakes would be corrected. The American Civil Liberties Union in Raleigh, at the newspaper's request, is reviewing the letter the sheriff sent. The newspaper also sent a copy to the state Department of Justice for an opinion on the law....

Other North Carolina counties have dealt with the same issue. Deputies in Chatham County in 2009 arrested a sex offender for attending church, citing the same law. A state Superior Court judge eventually ruled the law, as applied to churches, was unconstitutional.

In Buncombe County, sex offenders are permitted in church as long as pastors know and are in agreement, Sheriff Van Duncan says. That's similar to the county's policy for allowing sex offenders at school events such as ball games. They are allowed as long as school administrators have warning and the offenders are monitored to some extent, the sheriff said. The law allows schools to do this, a factor the judge noted back in 2009 in the Chatham County case.

Duncan said if a sex offender threatens a child at a church or school event, the law can be enforced and used to ban the offender. He said church leaders in Buncombe County, generally, want to minister to sex offenders.

The law applies to churches that run schools Monday-Friday the same as it would apply to county or city schools during the week. Sex offenders are generally banned from school property.

March 8, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Religion, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, March 04, 2015

First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing

Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing.  The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:

Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.

The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.

We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges.  We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....

A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.

Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance.  We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.

Some related prior posts:

P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post.  It has been a long day.

March 4, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Monday, March 02, 2015

California Supreme Court rules blanket sex-offender residency restriction fails rational basis review

In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds.  As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."

As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:

In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b).  As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons.  Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....

The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.  We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.

March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack