Wednesday, March 22, 2017
Unanimous New Jersey Supreme Court rejects "categorical Internet blackout" for sex offender
As reported in this local article, headlined "N.J. Supreme Court tosses 'total' internet ban for sex offender," the top court in the Garden State issued a significant ruling yesterday concerning on-line restrictions on sex offenders. Here are the very basics from the press report:
New Jersey's highest court on Tuesday threw out a state-sanctioned ban on internet use for a convicted sex offender, finding it was an arbitrary infringement on the man's rights.
In a unanimous decision, the state Supreme Court found the state Parole Board had improperly issued a "near-total" internet ban for the man, identified only by the initials J.I., who was subject to lifetime supervision after pleading guilty to charges he sexually abused his three daughters.
Calling internet access a "basic need" of modern life, the justices ruled that state authorities could only revoke it after holding a formal hearing to determine if there was a legitimate public safety reason to do so.
The lengthy ruling in J.I. v. New Jersey State Parole Board, No. A-29-15 (N.J. March 21, 2017) (available here), gets started this way:
Today, the Internet plays an essential role in the daily lives of most people -- in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.
Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender. In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose. The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.
J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.
After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes. The District Parole Supervisor justified the ban based not on J.I.’s conduct while on community supervision for life, but rather on his conduct years earlier -- the accessing of pornography sites and the possession of pornography -- that led to a violation of his parole. A Parole Board panel affirmed, apparently with no input from J.I.
Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device. The Parole Board upheld that determination and denied J.I. a hearing. The Appellate Division affirmed.
We now reverse and remand to the Parole Board. Conditions imposed on CSL offenders -- like those imposed on regular parolees -- are intended to promote public safety, reduce recidivism, and foster the offender’s reintegration into society. Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders. We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.
The sheer breadth of the initial near-total Internet ban, after J.I.’s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.’s computer. After the imposition of the total ban for J.I.’s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout. The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.
Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion. The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.
March 22, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)
Friday, March 17, 2017
"Good, Bad and Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape Laws Against the Protected Class"
The title of this post is the title of this new article authored by Anna High that a helpful reader flagged for me. Here is the abstract:
This article considers the question of whether statutory rape laws can and should be used against members of the class they were designed to protect. Many commentators have argued that meaningfully consensual sex among similarly situated and sufficiently mature teenagers should be beyond the scope of strict liability rape laws, but the question becomes more fraught in the context of the “contested outer limits” of adolescent sexuality — sexual contact among children and adolescents that offends social norms, leads to harmful outcomes or appears to be exploitative. What are the implications of using statutory rape laws against minors to target “bad sex”?
I contend that even in relation to “bad sex,” there are serious policy and constitutional objections to the use of statutory rape laws against a member of the class they are designed to protect. In jurisdictions without all-encompassing age-gap provisions, the response to sex among adolescents needs to be reformulated to ensure that the use of statutory rape laws against minors is confined to cases involving wrongful, as opposed to mere bad, sex, and is predicated on a clear and objective definition of exploitation, as opposed to mere fornication, as the punitive target.
Thursday, March 09, 2017
"Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation"
The title of this post is the title of this notable new book authored by Michael Perlin and Heather Ellis Cucolo which provides a fitting follow-up to prior posts in this space this week concerning problems with sex offender recidivism data and expanding use of crime registries. Via the publisher's website, here is a summary of the book's coverage:
Convicted sexually violent predators are more vilified, more subject to media misrepresentation, and more likely to be denied basic human rights than any other population. Shaming the Constitution authors Michael Perlin and Heather Cucolo question the intentions of sex offender laws, offering new approaches to this most complex (and controversial) area of law and social policy.
The authors assert that sex offender laws and policies are unconstitutional and counter-productive. The legislation largely fails to add to public safety-even ruining lives for what are, in some cases, trivial infractions. Shaming the Constitution draws on law, behavioral sciences, and other disciplines to show that many of the "solutions" to penalizing sexually violent predators are "wrong," as they create the most repressive and useless laws.
In addition to tracing the history of sex offender laws, the authors address the case of Jesse Timmendequas, whose crime begat "Megan's Law;" the media's role in creating a "moral panic;" recidivism statistics and treatments, as well as international human rights laws. Ultimately, they call attention to the flaws in the system so we can find solutions that contribute to public safety in ways that do not mock Constitutional principles.
Tuesday, March 07, 2017
Reviewing the ugly backstory of SCOTUS dicta on sex offender recidivism
Today's New York Times has this intriguing new Sidebar article by SCOTUS reporter Adam Liptak under the headline "Did the Supreme Court Base a Ruling on a Myth?". Here are excerpts:
Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders. “This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.
The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.
But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.
Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.
He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department. The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.
The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.
That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal....
A 2014 Justice Department report found ... that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals. In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years....
Lower courts generally accept what the Supreme Court says. That is true not only about the law but also about facts subject to independent verification. Last year, though, the federal appeals court in Cincinnati gently suggested that the Supreme Court had taken a wrong turn in its 2003 decision in Smith v. Doe. Judge Alice M. Batchelder, writing for a unanimous three-judge panel, described “the significant doubt cast by recent empirical studies on the pronouncement in Smith that ‘the risk of recidivism posed by sex offenders is “frightening and high.’” The appeals court struck down a particularly strict Michigan sex-offender law as a violation of the Constitution’s ex post facto clause, saying it retroactively imposed punishment on people who had committed offenses before the law was enacted.
The state has asked the Supreme Court to consider the case, Does v. Snyder, No. 16-768. The first paragraph of its petition says that the risk of recidivism “remains ‘frightening and high.’” The constitutional question in the case is interesting and substantial. And hearing the case would allow the court to consider more fully its casual assertion that sex offenders are especially dangerous.
Thursday, March 02, 2017
"First, They Came for the Sex Offenders … "
The title of this post is the headline of this Slate commentary authored by Perry Grosssman that discusses Packingham v. North Carolina, the First Amendment case heard by the Supreme Court earlier this week (basics here). The sub-headline summarizes the piece's themes: "We must speak up for the rights of those on the fringes of society. The Supreme Court’s ruling on sex offenders’ First Amendment rights will signal how much protection we can all expect." Here are excerpts from the ends of an extended discussion of the case and its context:
Looming in the background of the court’s consideration of this case are the Trump administration’s recent attacks on the First Amendment, minority rights, judicial independence, and the rule of law itself. Though it’s a much different First Amendment context, President Trump’s executive order restricting travel by Muslims from seven countries is also a grossly overbroad restriction on a politically vulnerable minority that was enacted thanks to fearmongering, not evidence. As lower federal courts enjoined the executive order, President Trump attacked the legitimacy of those judges — who then received threats to their safety — while members of his administration implied that the courts had no right to question the president’s judgment on matters of national security. Factor in Trump’s claim that he was championing free speech when he threatened to withhold federal funds from UC–Berkeley after it canceled an event featuring Milo Yiannopoulos, and his promise to “open up our libel laws” to permit more lawsuits against the press, and it’s clear that the president’s guiding mode of constitutional interpretation is not originalism, but solipsism. The president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t. This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.
Go to any protest these days and you’re sure to see a sign invoking the words of Martin Niemöller, a Lutheran pastor who opposed the Nazis during the Second World War by famously stating, “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.” The message is simple but powerful: Speak up for the rights of those on the margins of society or you might yourself on the other side.
Court battles over the First Amendment have been frequently fought on behalf of unpopular groups as a means of preventing encroachment upon the rights of the rest. Justice Stephen Breyer recalled this heritage during argument when he pointed to criminal laws directed at prohibiting communists from advocating for the overthrow of the United States government that had been struck down 60 years ago. It is difficult to imagine a less popular group than registered sex offenders. But speaking up for their rights now is critical at a time when the administration has shown its eagerness to brand people with whom it disagrees as “enemies” and to strip rights from politically vulnerable groups like transgender students. And it has the fringe benefit of being a good strategy for making sure “they” don’t come for you too.
Monday, February 27, 2017
"How Trump's Twitter use could help bring down NC sex offender law"
The title of this post is the catchy headline of this news article providing a summary of today's Supreme Court oral argument in Packingham v. North Carolina, which involves a First Amendment challenge to a North Carolina law a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites. Here are excerpts from the press account:
A Supreme Court justice pointed to President Trump's use of Twitter during arguments in a challenge to a North Carolina law that forbids registered sex offenders from using social media.
The law, Justice Elena Kagan said, makes it illegal for a group of people to communicate with the president using his favored form of communication. "This has become a crucially important channel of communication," Kagan said.
The justices heard oral arguments Monday in Packingham v. North Carolina. Lester Packingham is a registered sex offender who posted a statement on Facebook celebrating the dismissal of a traffic ticket. Police in Durham, N.C., indicted him for breaking the state's 2008 law that bans sex offenders from using social media that allows children to be members, including Facebook, Twitter and Instagram....
Questions from Kagan and the three other liberal justices suggested they are concerned the law overly restricts free speech. It "forecloses some of the most important channels of communication in our society," Justice Sonia Sotomayor said.
Kagan said in addition to blocking a channel of communication with President Trump, the ban also restricts how sex offenders interact with lawmakers and with religious groups. "These sites have become embedded in our culture as a way to exercise constitutional rights," Kagan said.
Senior Deputy Attorney General Robert Montgomery for North Carolina said sex offenders have alternative ways to express their first amendment rights. The law, he said, is a protection for children against sex offenders who have a high rate of repeat offenses....
Conservatives on the court asked few questions. Chief Justice John Roberts noted the lack of precedent in a case dealing with social media. Justice Samuel Alito said perhaps the law could be narrowed to impact fewer websites.
Amy Howe at SCOTUSblog here has a more fulsome account of the argument under the heading "Justices skeptical about social media restrictions for sex offenders." This full transcript of the SCOTUS oral argument is available here.
Sunday, February 26, 2017
SCOTUS considering cases involving sentencing and collateral consequences in coming days
This coming week the Supreme Court hears arguments in three cases that ought to be over interest to sentencing fans. Here are the basics of the cases in the order they are to be consider in the next two days, with descriptions and links to argument previews via SCOTUSblog:
Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites — including Facebook, YouTube, and nytimes.com — that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act — and therefore constitutes grounds for mandatory removal.
Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.
For all sorts of reasons, Packingham seems likely to get the most attention of this bunch. But Dean could provide to be a sleeper post-Booker case for federal sentencing fans.
Wednesday, February 15, 2017
Repeat rape and murder for sex offender subject to monitoring shows limits of GPS as incapacitation tool
This article in my local paper about a local murder that has received a lot of attention provides a cold reminder that GPS monitoring typically cannot and will not alone serves as fool-proof crime prevention tool. The article is headlined "Ex-convict charged in slaying of Ohio State student was on GPS monitoring," and here are the details:
A sex offender who is accused of abducting, raping and killing an Ohio State University student was on GPS monitoring. Brian L. Golsby, 29, who was released from state prison on Nov. 13 after serving six years for robbery and attempted rape, had special conditions of supervision under his post-release control for five years.
"I can confirm that he was on GPS monitoring, which is not uncommon due to the fact that he did not have a permanent residence upon his release," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Golsby was living in a state-contracted residential housing program that granted him a temporary residence.
Grove City police arrested Golsby after 21-year-old Reagan Tokes' body was found on Feb. 9 near the entrance of Scioto Grove Metro Park. Detectives say Golsby abducted Tokes after she left work Feb. 8 in the Short North. He forced her to withdraw $60 from an ATM, raped her and fatally shot her twice in the head before dumping her body. Investigators already had Golsby's DNA from prior offenses and matched it to a cigarette butt left in Tokes' car. Tokes was set to graduate from OSU in May with a degree in psychology.
Smith said state law prevents her from going into details of the conditions Golsby had to follow. All offenders are prohibited from carrying guns, but it's unclear whether travel restrictions were placed on Golsby in addition to what sex offenders have to abide by. "DRC contracts with community providers for electronic monitoring and GPS services. The level of monitoring depends on the offender and circumstances for which the service is requested," Smith said.
She would not specify which vendors are used or describe the level of monitoring that offenders like Golsby could have. It's unclear whether he triggered an alert while wearing the bracelet, or, if he had discarded the monitor, how parole officers would have been notified. It's also unknown how often parole officers check the movements of offenders assigned to them, or how far back the monitor records travel. "DRC is not providing specifics relative to this case due to the ongoing criminal investigation," Smith said.
Columbus police have been looking at Golsby as a possible suspect in a series of attacks on women in German Village and near Nationwide Children's Hospital.
Tuesday, February 14, 2017
Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics
This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:
Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear. He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.
About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit. She introduced him to her younger sister, age 13. This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.
The two 13-year-olds started skyping Zachary together. Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance. By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear. Her face was not visible, nor were her private parts.
That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist. Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature. Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.
Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone. All this, from five underwear pictures. If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.
Instead, he took a plea bargain. This is what prosecutors do: scare defendants into a deal. Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.
Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender." The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months. "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."
As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce. Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor. The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....
Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.
Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry. But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.
I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.
UPDATE: A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above. This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.
"Maryland prosecutor sentenced for hotel sex acts in front of glass door in Ocean City"
The title of this post is the headline of this Washington Post article, which sort of has a Valentine's Day theme. I recommend the article if full in order to get the "full monty" details, but here are highlights from the start of the article and its update:
It’s Valentine’s Day, and the top prosecutor in Cecil County, Md., having already celebrated his love with his wife in full view of numerous others, will stand before a judge today and receive a criminal sentence for such public displays of affection.
Edward “Ellis” Rollins III (R) was arrested in June for indecent exposure and disorderly conduct, for having sex, standing naked and other related acts at the sliding glass door of his tenth-floor Ocean City, Md., hotel room, while four tourists, a security officer and two Ocean City police officers watched. He was convicted by a Worcester County, Md., jury after a two-day trial in December. Rollins, 61, likely will not face jail time for the two misdemeanor convictions.... He did remove himself from consideration for a circuit court judgeship, which he was scheduled to interview for with the governor shortly after his arrest, on a bench where both his father and grandfather served.
Rollins did not return phone and email messages Monday, and his attorney, Cullen Burke, also did not return a call. At trial, Rollins did not testify, but his lawyer did not deny that Rollins and his wife enjoyed various carnal relations next to the sliding glass door of their hotel room. Burke described Rollins and his wife, Holly Rollins, as “still newlyweds” after six years of marriage, according to the Cecil Whig, and Holly Rollins testified she had no idea anyone was watching from the adjacent condominiums. Burke said there was 172 feet between the two buildings and that the Rollins’ hotel room “was a speck” in the vision of the tourists’ apartment.
But the four Pennsylvania women who spotted the activity, on two different days, felt it was much more visible than a speck. They returned to Ocean City and testified in detail about Rollins’ actions. It really wasn’t the sex so much as Rollins’ naked dancing and posing at the sliding glass door that truly offended the visitors, according to the media reports of their testimony. “You’re just sickening,” one woman turned and said to Rollins during her testimony. “I have nightmares because of you. I argue with my husband because it’s all I can talk about.”
UPDATE, 2:02 p.m.: Worcester County Circuit Judge Brian Shockley imposed a $1,000 fine and a 90-day jail sentence with all time suspended for Ellis Rollins, along with 100 hours of community service, 18 months of supervised probation and mental health treatment. Worcester County State’s Attorney said he asked for a two-year sentence with 18 months suspended, which would have meant Rollins would have spent six months in the Worcester jail, but Shockley did not take that recommendation.
Thursday, February 09, 2017
Noting the concerns prompted by aging sex offenders
This short local Ohio article, headlined "States look for solutions to growing number of aging sex offenders," provides yet another example of how the sex offender label has echoes throughout so many aspects of society. Here are excerpts from the piece:
As states like Ohio deal with a growing number of aging registered sex offenders, another state is examining what to do with elderly sex offenders when they are in need of nursing home care. In Iowa, lawmakers are studying whether to establish a separate facility for sex offenders to keep them away from other nursing home residents.
A Dayton Daily News examination found numerous examples of lax oversight of sex offenders in nursing homes in Ohio. This newspaper’s investigation found 136 sex offenders were living in 43 nursing homes in Ohio in October. It also identified potential problems with the safety net, from under-staffing at homes with offenders to a lack of information on the public registry used by facilities to make admission decisions.
The Iowa Senate Human Resources Committee this week approved a resolution which asks the state’s legislature to create a committee to study the establishment of a facility to care specifically for those who are sex offenders or are sexually aggressive.
Iowa, like Ohio, has no dedicated facility for housing sex offenders in need of long-term care. “The lack of such a facility places other geriatric patients, residents, and tenants at risk for being sexually abused,” the Iowa resolution says.
The proposal suggests studying either establishing a new facility, or expanding an existing one to keep sex offenders or sexually aggressive individuals separate from the general nursing home population.
Monday, February 06, 2017
Idaho judge includes celibacy for teen sex offender on intensive probation
As reported in this local article, after "sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation." Specifically:
“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” 5th District Judge Randy Stoker said.
The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.
Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said. Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.
The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”
The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”
Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.
But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law. “I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.” While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution. “I think if he appealed, he would win,” Sanders said.
Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition. “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.
“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”
I have personally always viewed probationary conditions that prohibit alcohol more than a bit suspect, but I know that they are regularly imposed and have often been upheld when sufficiently linked to the offense of conviction. With that background, I think the prosecutor here has a reasonable basis for arguing that this celibacy condition could be upheld if challenged. Then again, even though sex and alcohol often are linked, some significant distinctions might be made in this context were there to be legal appeals by the defendant here.
February 6, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
Wednesday, February 01, 2017
"Say no to restorative justice for sex offenders"
The title of this post is the headline of this notable commentary published in The Hill authored by Michael Dolce. Here are some of the details:
The debate around the Senate’s possible confirmation of Betsy DeVos, President-elect Trump’s nominee for Education Secretary, should kick start a national discussion on how colleges and universities handle sexual assault. Recently, much of that conversation has revolved around “restorative justice,” programs that aim to respond to misconduct or crime by redressing the harm inflicted on victims and the community, rather than simply punishing offenders.
As a victim of childhood sexual abuse myself and an attorney who now represents sexual assault survivors every day, I can say without doubt that restorative justice is not only horribly insufficient for handling sexual abuse but, in many cases, actually serves to leave an offender free to offend again.
Whether as an alternative or a supplement to traditional discipline, restorative justice programs require offenders to make amends with victims — often with apologies and mediation — and participate in reformative programs like anger management or cultural sensitivity training, measures rarely imposed by the criminal justice system. In an education setting, employing these programs for offenses like racial harassment and alcohol misuse have had some success, leading to understandable calls from some criminal justice reform advocates and college administrators to expand their use to college sexual misconduct cases.
It’s true that our colleges and universities routinely fail victims of sexual assault, as last year’s abhorrent handling of the Brock Turner case at Stanford University reminded us. It’s also true, as the Chicago Tribune reported late last month, that the future of campus sex assault investigations under President Trump are “uncertain,” particularly since GOP convention platform calls for a reduced federal government role in investigations of campus sexual assault.
But, for several important reasons, restorative justice is not the answer for handling sex offenders. First, this method only works if offenders feel empathy when confronted with the impact of their misconduct.
According to prominent forensic psychology researchers Drs. Daryl Kroner and Adelle Forth, about half of convicted sex offenders exhibit psychopathology, meaning they are incapable of feeling remorse or empathizing with their victims. Sex offenders are often skilled at manipulating others into believing they are safe, which helps them gain their victims’ trust before attacking....
Second, advocates for restorative justice programs in this context often make the flawed assumption that sex offenders are similar to repeat offenders of other habitual offenses like drunk driving. But while underage drinking and alcohol abuse are certainly a common problem on university campuses, alcohol does not turn a college student into a sex offender. In fact, according to the National Institute on Alcohol Abuse and Alcoholism, some offenders actually drink alcohol before committing sexual assault specifically to later justify their behavior. Relying on restorative justice to ‘treat’ this group would be a dangerous validation of their criminal deceit.
The third common argument – that schools might be safe relying on restorative justice methods in cases of sexual harassment that don’t involve physical assault – is risky at best. Those who sexually harass others are objectifying and dehumanizing their victims, behavior that is often a prelude to assaults....
The reality is that I believe the majority of sex offenders are largely incapable of empathy. Two-thirds of male sex offenders will re-offend if they are not treated and restrained as criminals. The consensus among mental health and criminal justice professionals is that most sex criminals cannot be reformed; they can only be monitored, controlled and contained.
These are people who look at the tears and agony on victims’ faces, show no mercy and then quickly move on to their next victim. Restorative justice can be a wonderful tool for certain types of offenses, but let’s not ask victims of sexual assault to suffer an even greater burden by making them take part in their attackers’ so-called “reformation.”
Tuesday, January 03, 2017
Eighth Circuit panel reverses district court findings of substantive due process problems with Minnesota's sex offender commitment program
As reported in this local article, a "federal appeals court in St. Louis has reversed a lower-court ruling that Minnesota's sex-offender treatment program is unconstitutional — a major victory for the Minnesota Department of Human Services and a decision that could delay long-awaited reforms to the state's system of indefinite detention for sex offenders." Here is more about the ruling and its context:
In a decision Tuesday, a three-judge panel of the Eighth Circuit Court of Appeals found that a class of sex offenders who sued the state failed to prove that the Minnesota Sex Offender Program (MSOP) violated their due process rights under the U.S. Constitution. "We conclude that the class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard," the court ruled.
In response, the lead attorney for a class of offenders who sued the state said he is considering an appeal to the U.S. Supreme Court, which must be filed within 90 days. "Justice was not done today," said Dan Gustafson, the attorney for the plaintiffs. "We're still considering what we are going to do but, as Governor Dayton said the other day, we are not going quietly into the night."
Minnesota confines more offenders per capita, and has the lowest release rate, among the 20 states that use civil commitment to confine sex offenders in treatment programs. Only 14 offenders have been conditionally discharged from the program in its more than 20-year history. Of those, seven are currently living in the community. Just one offender has been unconditionally discharged, and that did not occur until August.
In June 2015, federal Judge Donovan Frank in St. Paul, ruling in a lawsuit brought by a group of sex offenders, declared the program unconstitutional for confining offenders indefinitely, after they have already completed their prison terms, without a clear path toward release. The judge ordered state officials to conduct independent evaluations of the roughly 720 offenders confined at secure treatment centers in Moose Lake and St. Peter to determine if they still pose a public safety risk. He also ordered the state to develop less restrictive options for housing offenders in the community.
The unanimous Eighth Circuit panel ruling in this case is available at this link, and it gets started this way:
Class plaintiffs, civilly committed sex offenders, bring a facial and as applied challenge under 42 U.S.C. § 1983, claiming their substantive due process rights have been violated by Minnesota’s Civil Commitment and Treatment Act and by the actions and practices of the managers of the Minnesota Sex Offender Program (MSOP). The Minnesota state defendants in this action are managers of MSOP — Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services; Kevin Moser, MSOP Facilities Director at Moose Lake; Peter Puffer, MSOP Clinical Director; Nancy Johnston, MSOP Executive Director; Jannine Herbert, MSOP Executive Clinical Director; and Ann Zimmerman, MSOP Security Director (collectively “state defendants”). After several months of litigation, including a six-week bench trial, the district court found for plaintiffs and entered an expansive injunctive order. The district court applied incorrect standards of scrutiny when considering plaintiffs’ claims, thus we reverse the finding of substantive due process violations and vacate the injunctive relief order. We remand to the district court for further proceedings to address the remaining claims.
Monday, December 19, 2016
Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner
This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:
A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.
The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.
“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously. Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.
The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:
The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline. First, the sentence was within the parameters set by law and was therefore within the judge’s discretion. Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant. Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias. The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both. Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification.
Some (of many) prior related posts on the Brock Turner case:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
Thursday, December 01, 2016
Fourth Circuit panel rejects North Carolina's efforts to defend constitutionally hinky provisions of state sex offender rules
The Fourth Circuit handed down a notable opinion yesterday in Doe #1 v. Cooper, No. 16-6026 (4th Cir. Nov. 30, 2016) (available here). In this ruling, the panel rejects arguments made on appeal by the state of North Carolina to try to overturn a district court's ruling about the unconstitutionality of key provisions of the state's sex offender laws. Here is how the unanimous opinion gets started:
The State of North Carolina requires persons convicted of certain reportable sex offenses to register as “sex offenders.” See N.C. Gen. Stat. § 14-208.6(4); id. § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).
John Does #1 through #5 (collectively, the “Does”) challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment. The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14- 208.18(a)(2) and section 14-208.18(a)(3). For the reasons set out below, we affirm the judgment of the district court.
Among many notable passages in this opinion, I found especially telling some of the discussion of the state's failure to provide any serious data or other evidence to support the broad restrictions on sex offender movements enacted into NC laws:
The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11. But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof....
In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence. In its brief, the State cites three North Carolina cases... [but] the State fails to explain how three cases, representing three individuals -- out of more than 20,000 registered North Carolina sex offenders -- provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions.
Monday, November 07, 2016
"Global Overview of Sex Offender Registration and Notification Systems"
A helpful reader altered me to this interesting publication with the same title as this post. The publication was produced by the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (known as SMART). Here is its introduction:
Sex offender registration and notification systems have proliferated around the world over the last twenty years. After the United States’ first national-level sex offender registration law was passed in 1994, 29 additional countries have enacted sex offender registration laws. A handful of these systems are more analogous to what would be considered a CHRI (criminal history record information) database as opposed to a ‘registry’, but are included in this overview for the sake of thoroughness.
The following countries have laws governing sex offender registration systems at the national and/or provincial level: Argentina, Australia, Bahamas, Canada, Chile, Cyprus, France, Germany, India, the Republic of Ireland, Jamaica, Kenya, Maldives, Malta, New Zealand, Nigeria, Portugal, South Africa, South Korea, Spain, Taiwan, Trinidad & Tobago, United Kingdom and Commonwealth Nations (Bermuda, Gibraltar, Guernsey, Isle of Man, Jersey, and the Pitcairn Islands), and the United States.
The following countries have considered or are considering sex offender registration and notification laws, but such laws have not yet passed: Austria, Barbados, Belgium, Belize, Cayman Islands, Fiji, Finland, Hong Kong, Israel, Malaysia, Poland, Samoa, St. Lucia, Switzerland, United Arab Emirates, and Zimbabwe.
What follows in this SMART Summary is a brief snapshot of the sex offender registration and notification laws in each of the countries that have enacted such provisions, sequenced in chronological order of the first country in a continent or region to implement such laws. Statutory references, where available, are provided. In addition, the footnotes contain additional references which might assist the reader in finding out more detailed information about the countries’ sex offender registration and notification provisions.
As this is a rapidly developing area of the law, and many statutes have not been officially translated into English, the reader is encouraged to check for the current versions of any nation’s provisions and consult official translations, rather than relying solely on this SMART Summary.
Sunday, October 30, 2016
Mizzou State Representative wants to consider showing repeat sex offenders to execution chamber
As reported in this local article, headlined "State Rep. wants death penalty as option for repeat sex offenders," a local elected official has a notable idea for punishing certain sex offenders. Here are the details:
It’s the one issue in Jefferson City that State Representative Randy Pietzman says nobody likes to talk about. “This is not a popular topic to talk about if you’re just trying to get re-elected,” he said. But that’s not going to stop him from tackling it head on because he says it concerns the safety of every Missouri child. “We need to change something. We need to do something to curb this problem,” he said.
And it’s especially relevant for Lincoln County, where the Republican is running unopposed for his second term this November. The rural county, about an hour to the northwest of St. Louis, has a disproportionately high number of sex offenders and sex crimes against children. “If you compare us with other counties in the surrounding area, per capita, we have substantially more sex offenders,” said Detective Sean Flynn with the Lincoln County Sheriff’s Office. “There’s something attracting them here,” Pietzman said.
But whatever the reason for the unwanted popularity, it’s having an impact on multiple levels. “It seems these crimes are impacting people across the socioeconomic spectrum,” Flynn said.... “It’s impacted the department in a way that my time is monopolized by this. Really, we’re at the point where we need more people to investigate,” Flynn said.
And some in law enforcement go a step further to say the situation might be beyond repair. Captain Michael Merkel with the Lincoln County Sheriff’s Office said, “I don’t think stopping it is an option. I think slowing it down is something we could do.” One way of going about that, he said, is to strengthen the penalties statewide for what’s considered to be some of the most heinous crimes imaginable. “It’s not acceptable that somebody can pass a bad check and be punished more harshly than someone who has victimized a child,” Merkel said.
Capt. Merkel also suggests improving their ability to investigate child sex crimes. Right now, detectives in Missouri can only interview juvenile victims if their parents give permission. And the problem? “What we run into is we have a parent or family member who’s a suspect. And they’re the only ones who can authorize the interview,” Merkel explained.
It’s a loophole in state law that Rep. Pietzman said could help his county, and the state, if it was closed. “We’re talking about our kids. If the punishment doesn’t match the crime, then it’s going to keep continuing,” he said.
That’s why, following our initial report, Pietzman is working on a number of reforms, including one that would make the death penalty a possible punishment for repeat offenders. “That seems cruel when you think about it," he said, "but you got to think about what these guys have done. We’re talking about grown men having sex with kids as young as 3- or 4-years-old.”
There are several cases and states that have pushed for similar measures, but capital punishment in America right now is almost exclusively reserved for the crime of murder. Pietzman said at the very least, he hopes to start a conversation in the legislature that some in law enforcement say is long overdue.
I am eager to help State Representative Randy Pietzman start this conversation about making repeat sex offenders eligible for the death penalty. The first critical point in such a conversation, however, has to be about the Supreme Court's Kennedy ruling which seemingly declared the death penalty unconstitutional for any and all crimes of rape. An argument might be developed that the Kennedy ruling applied formally addressed a first-offense child rapist, and so perhaps a capital statute focused on only the worst of the worst repeat child rapists could be legally viable (and, of course, because Eighth Amendment doctrines evolve perhaps Eighth Amendment precedents have less stare decisis force).
Also important to consider here is the concern expressed by Capt. Merkel about challenges he faces investigating child sex crimes. I suspect and fear that making some sex offenders eligible for the death penalty could actually end up aggravating rather than mitigating this problem as family members fearing a capital prosecution may be uniquely unwilling to cooperate with authorities.
Saturday, October 29, 2016
SCOTUS takes up Booker/mandatory sentencing issue and two sex-offender collateral-consequences cases
I had a spectacular afternoon mostly off-line yesterday: I heard Sandy Levinson talk about his book on the Federalist Papers; I talked with my 1L students about a famous criminal case after an infamous disaster; I spoke at lengthy to a reporter about the prospects for federal criminal justice reform in 2017; I had great happy hours conversations with students, friend and family, followed by a spectacular burger at my favorite local gastropub; and I managed to stay awake for (most of) one of the all-time great modern World Series games.
What I did not manage to do until this morning, however, was remember that SCOTUS yesterday had a conference to consider new cases for its docket. Helpfully, this SCOTUblog post reports on the five SCOTUS cert grants on the last Friday in October 2016, and three of the cases are sure to be worth sentencing fans' attention. Here are the three grants as described by Amy Howe from SCOTUSblog, organized by me in order of "importance" for those most obsessed with modern sentencing systems:
The facts of Dean v. United States read like a “true crime” novel, involving robberies of drug dealers in the Midwest. Levon Dean, the defendant in the case, was convicted under the Hobbs Act, a federal law that makes it a crime to “obstruct, delay, or affect commerce” through a robbery. The justices today declined to review Dean’s challenge to his Hobbs Act convictions, but they agreed to weigh in on a separate question: the scope of a federal trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the Section 924(c) conviction. Dean argued that the district court had the authority to impose a very short sentence — as little as one day — for his Hobbs Act convictions, to take into account the much longer sentence required by Section 924(c), but the lower courts disagreed.
Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.
In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.
Sunday, October 23, 2016
California judge imposes prison term of 1,503 years(!?!) on father who repeatedly raped daughter
As reported in this local article, a state judge in California gave new meaning to the term "mass incarceration" by imposing a prison sentence on a rapist that will not be completed until the year 3519. Here are the details:
Fresno prosecutor Nicole Galstan asked a judge on Friday to sentence Rene Lopez to 1,503 years in prison for raping his teenage daughter over a four-year period, ending in 2013. Judge Edward Sarkisian Jr. agreed, sentencing the 41-year-old Lopez to the longest-known prison sentence in Fresno Superior Court history.
It stands in stark contrast to recent high-profile sentencings in sexual assault cases such as six months for ex-Stanford swimmer Brock Turner and, just this week, 60 days for a Montana man convicted of felony incest for raping his 12-year-old daughter.
In announcing the punishment, Sarkisian told Lopez he violated a position of trust, engaged in violent conduct and is a “serious danger to society.” Sarkisian also noted that Lopez had never shown remorse and has blamed his daughter for his predicament.
Lopez, who sat shackled in the courtroom, sat silently, never acknowledging his daughter, who told Sarkisian that she feared her father. (The Fresno Bee does not name victims of sexual abuse.) “When my father abused me, I was young. I had no power, no voice. I was defenseless,” said the daughter, who now is 23 years old. She also told the judge that her father never has shown remorse for her pain and suffering....
In September, a jury found Lopez guilty of 186 felony counts of sexual assault, including dozens of counts of rape of a minor. Galstan said the victim was first sexually abused by a family friend. But instead of the father protecting his daughter, “he chose to turn her into a piece of property and use her to satisfy his sexual needs,” the prosecutor told the judge.
The victim was raped two to three times a week from May 2009 to May 2013. Galstan said it ended only when the girl got the courage to leave him. Even then, her father would drive by her new home and later leave love songs on her message machine, the judge said....
At Friday’s hearing, Sarkisian read the date of each felony count, which included Lopez raping his daughter on Christmas and other holidays. Before he announced the sentence, Sarkisian said Lopez turned down two plea deals. Before his preliminary hearing, if he had admitted his guilt, prosecutors would have recommended 13 years in prison. Lopez rejected the offer. Then before his trial, he was offered 22 years in prison if he admitted his guilt. Lopez declined that offer, saying he should be released from jail for the time he already had served, Sarkisian said.
“He ruined her teenage years and made her feel like it was her fault,” Galstan said in arguing for the maximum sentence.
Lopez, who did not testify in his trial, wrote in a letter to the judge that he didn’t get a fair trial and that his daughter lied on the witness stand. “It’s hearsay,” he says in the letter. But Sarkisian told him that he received a fair trial and that the evidence was overwhelming. In addition to the victim’s testimony, jurors heard entries from her diary in which she chronicled her father’s crimes against her, Galstan said. And when she got pregnant from her father, he paid for the abortion, the judge said.
In addition to the prison sentence, Sarkisian said Lopez will have to register as a sex offender.
Though this defendant was convicted of extreme crimes that justified an extreme sentence, the decision of the prosecutor to seek and the judge to impose a term of 1,503 years in prison strikes me as silly and arguably counterproductive to the goal of helping all victims of sexual assault feel vindicated by the criminal justice system. It is silly, I think, to impose upon a defendant a crazy-long-impossible prison sentence just for symbolic effect, just as a restitution sentence of, say, "one trillion, zillion, billion dollars" would be silly. And this crazy-long-impossible prison sentence could, at least indirectly, make other victims of sexual assault whose victimizers were given much shorter sentences feel as though their harms were not entirely vindicated in their cases.
UPDATE: Over at his blog Simple Justice, Scott Greenfield has this effective new post titled "Rape, Incest And Retribution" to highlights how this case takes us from "the sublime to the ridiculous" as we reflect on what this case represents against the backdrop of other recent controversial sexual assault cases in California and Montana. In addition to recommending this post in full, I also recommend the comments there (as well as this funny button Scott provides if his post hurts your feelings).
Saturday, October 22, 2016
Illinois Supreme Court upholds law requiring sex offenders to disclose internet identity information
As reported in this local Illinois article, the "state’s highest court has upheld a law that requires sex offenders to disclose information about their internet identities and websites." Here is more about the ruling:
In a unanimous decision authored by Justice Charles E. Freeman, the Illinois Supreme Court held that a provision of the Sex Offender Registration Act survived First Amendment scrutiny because it bolsters the government’s interest in protecting the public without restricting more speech than necessary.
In an 18-page opinion issued this morning, the court critiqued a handful of federal district courts who have found similar statutes unconstitutional and wrote that although sex offender laws can have “a lasting and painful effect” on those they regulate, those consequences stem from the convictions rather than forced disclosure of their personal information.
The full ruling in Illinois v. Minnis, No. 119563 (Ill. Oct. 20, 2016), is available at this link, and it substantively starts and ends this way:
Section 3(a) of the Sex Offender Registration Act (Registration Act or Act) requires sex offenders to disclose and periodically update information regarding their Internet identities and websites. 730 ILCS 150/3(a) (West 2014). This information is subject to public inspection as provided by the Sex Offender Community Notification Law (Notification Law or Law) (730 ILCS 152/101 et seq. (West 2014)). The circuit court of McLean County entered an order finding that this Internet disclosure provision was overbroad in violation of the first amendment to the United States Constitution. U.S. Const., amend. I. The State appeals directly to this court. Ill. S. Ct. R. 603 (eff. Oct. 1, 2010). We now reverse the order of the circuit court and remand the cause to the circuit court for further proceedings....
We hold that the Internet disclosure provision survives intermediate scrutiny because it advances a substantial governmental interest without chilling more speech than necessary. Therefore, defendant has failed to establish that the Internet disclosure provision of section 3(a) of the Registration Act is facially unconstitutional because it is substantially overbroad in violation of the first amendment.
Thursday, October 20, 2016
Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter
The latest controversially lenient sexual offense sentencing garnering social and traditional media attention comes from Montana, and this Washington Post article provides some of the notable details under the headline "Father who ‘repeatedly raped his 12-year old daughter’ gets 60-day sentence. Fury erupts." Here are excerpts:
In the case of Judge John McKeon, as of early morning Wednesday, almost 20,000 people had signed a Change.org petition calling for his impeachment for the 60-day sentence he gave a Glasgow, Mont., man who pleaded guilty to repeatedly raping his prepubescent daughter. “A father repeatedly raped his 12-year old daughter,” Deputy Valley County Attorney Dylan Jenson said during an Oct. 4 sentencing hearing. “It’s time to start punishing the judges who let these monsters walk our streets,” read the petition.
Prosecutors had recommended a mandatory 25-year sentence, 100 years with 75 suspended, which is what state law calls for. Instead, though, Judge McKeon handed down a far lighter sentence: a 30-year suspended prison sentence, which means the man will only serve it if he fails to meet the conditions of his probation.
Among those conditions, which McKeon called “quite rigorous,” was the requirement for the man to register as a sex offender, the Glasgow Courier reported. He also cannot access pornography and has limited access to the Internet. In addition, the man will serve 60 days in jail, but McKeon gave him credit for the 17 days he already served, meaning he’ll only spend another 43 days in jail....
In most of these controversial cases, the judges under siege tend to remain silent. What makes McKeon’s case unusual is that he has chosen to defend himself in public. In an email to the Associated Press, McKeon said he had several reasons for handing down the seemingly light sentence.
The judge claimed that news coverage obscured state law by failing to mention an exception to the mandatory 25-year prison sentence. According to McKeon, the law allows those arrested for incest involving someone under 12 years old to avoid prison if a psychosexual evaluation finds that psychiatric treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.” The judge wrote this is one of Montana’s attempts “to encourage and provide opportunities for an offender’s self-improvement, rehabilitation and reintegration back into a community.”
In the note to the AP, McKeon also referenced letters written to him by the victim’s mother and grandmother. Both letters requested the convicted man not be sentenced to prison. The victim’s mother, who walked in on the man sexually abusing her daughter, wrote that the man’s two sons love him and she wanted his “children have an opportunity to heal the relationship with their father,” according to McKeon.
The victim’s grandmother echoed this, calling the man’s behavior “horrible” but stating that the man’s children, “especially his sons, will be devastated if their Dad is no longer part of their lives.”
For all these letters defending the convicted man, though, Deputy Valley County Attorney Dylan Jensen told the AP that no one spoke on behalf of the victim, a 12-year-old girl, at Friday’s sentencing hearing. The petition to impeach McKeon highlighted this fact. “No one spoke on behalf of the 12 year old child at trial,” it read. “No one. The victim was not given justice, but instead will have to live with the fear that she still has to face her rapist in their community. ”
McKeon’s email concluded, “All district judges take an oath to uphold the Constitution and laws of this state. These constitutional provisions and laws include certain fundamental legal principles that apply at sentencing, including a presumption of innocence for unproved criminal allegations, the varying sentencing policies and the government’s burden to counter evidence supporting an exception to mandatory sentence.”...
McKeon, who has served as a Montana state judge for 22 years, is retiring next month, according to the Associated Press. Considering that an impeachment in Montana, according to the National Center for State Courts, requires a “two-thirds vote of the house of representatives and [a] convict[ion] by a two-thirds vote of the senate,” the point is fairly moot — there simply isn’t enough time to impeach him.
October 20, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)
Monday, October 10, 2016
Is supposedly "tough-on-crime" GOP Senator (and former federal prosecutor) Jeff Sessions actually not-so-tough on sexual assault?
The provocative question in the title of this post is my reaction to seeing these two new (right-leaning-source) stories about comments made last night by Alabama GOP Senator (and former US Attorney) Jeff Sessions:
From RedState here, "Senator Jeff Sessions Unsure Whether Grabbing Women by Their Genitals is Sexual Assault"
From the Weekly Standard here, "Jeff Sessions: Behavior Described by Trump in 'Grab Them by the P---y' Tape Isn't Sexual Assault"
One of many notable aspects of GOP Prez candidate Donald Trump's campaign has been the fact that his three most-prominent political surrogates are all former US Attorneys: Chris Christie was US Attorney for New Jersey from 2002 to 2008, Rudy Giuliani was US Attorney for the Southern District of New York from 1983 to 1989, and Jeff Sessions was US Attorney for the Southern District of Alabama from 1981 to 1993. I have long assumed that this notable troika of US Attorneys advising Trump has played a significant role in Trump's effort to brand himself as the "law-and-order" candidate.
As regular readers surely know, I often have a number of different perspectives on a number of crime and punishment issues than do many current and former US Attorneys. As I also hope readers also realize, I always have had a significant amount of respect for the professional honesty and personal integrity of current and former US Attorneys. But Senator Sessions' statements reported above (as well as some other actions by Chris Christie and Rudy Giuliani in recent weeks and months) has really dealt a significant blow to my continued ability to have continued respect for the professional honesty and personal integrity of at least some former US Attorneys.
UPDATE: This local article reports on Senator Sessions' effort to clarify his remarks under the headline, "Sen. Jeff Sessions denies dismissing Trump's lewd video comments: 'Crystal clear' sexual assault unacceptable."
October 10, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (94)
Thursday, October 06, 2016
Noting the tide starting to turn in litigation challenging sex offender residency restrictions
The Marshall Project has this notable new article on a notable new development concerning sex offender residency restrictions. The article is headlined "Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic." Here is how it gets started:
Mary Sue Molnar estimates that she gets at least five calls a week from Texans on the sex offender registry who can’t find a place to live. Numerous towns around the state have passed ordinances prohibiting those on the list from residing within a certain distance — anywhere from 500 to 3,500 feet — of a school, park, daycare facility or playground. In some towns, that’s almost everywhere. “We’ve got people living in extended-stay motels,” says Molnar, who runs the sex-offender-rights group Texas Voices for Reason and Justice. “We’re in a crisis mode.”
Molnar and her allies have considered lobbying the Legislature to ban these ordinances, but they’ve found lawmakers unreceptive in the past to any bill perceived to benefit sex offenders. So she decided to go to court. Molnar enlisted a small army of parents and siblings of sex offenders to compile a list of towns with such ordinances, and assembled research showing that the rules can actually make the public less safe. She enlisted Denton lawyer Richard Gladden. He was already representing Taylor Rice, who as a 20 year-old had sex with a 14 year-old he met online and now, after his conviction for sexual assault, was legally barred from living with his parents because their house was too close to a high school’s baseball field.
Gladden had found a 2007 opinion by then-attorney general (now governor) Greg Abbott saying that towns with fewer than 5,000 residents — which fall into a particular legal category in Texas — are not authorized by the state to enact such restrictions on their own. Gladden sent letters threatening lawsuits to 46 city councils. Within two months, half of them had repealed their ordinances. Gladden and Molnar are currently suing 11 of the remaining towns. Restrictions on where registered sex offenders can work, live, and visit vary widely from state to state and city to city.
Over the last few years, Molnar and her counterparts in other states have come to the same conclusion: Politicians aren’t going to help them. “Who wants to risk being called a pedophile-lover?” says Robin van der Wall, a North Carolina registrant on the board of the national group Reform Sex Offender Laws. So the activists have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.
Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.
Their legal strategies are proving effective. This past August, the 6th U.S. Circuit Court of Appeals invalidated a Michigan law that retroactively applied various restrictions to people convicted before the laws were passed. Judge Alice Batchelder wrote that the law “has much in common with banishment and public shaming.” Since 2014, state and federal judges have struck down laws restricting where sex offenders can live in California, New York and Massachusetts. In addition to the Texas lawsuits, there are ongoing legal battles over registries and restrictions associated with them in Illinois, Wisconsin, Louisiana, Alabama, Colorado, Nevada and, Idaho, among other states.
Wednesday, October 05, 2016
"Victim Impact Statements and Expressive Punishment in the Age of Social Media"
The title of this post is the title of this new paper available via SSRN and authored by Erin Sheley. Here is the abstract:
Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds.
This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.
Monday, October 03, 2016
Interesting look at gender dynamics in sex offender prosecutions in North Dakota
This local article from North Dakota, which is headlined "Investigators say all sex offenders treated the same, but some studies find female criminals face lighter sentences," take a close look at the interest intersection of sex offenses and gender. Here is how the article starts:
Last month, a young Bottineau teacher was sentenced to serve about a month and a half in jail, pay $325 in court fees and undergo treatment after admitting to having sexual relations with at least two teenage boys. Marissa Ashley Deslauriers, born in 1991, pleaded guilty in Bottineau County District Court to two Class A misdemeanor charges of contributing to deprivation of a minor and two Class B misdemeanors of sexual assault.
Originally, she faced felony charges that could have resulted in 15 years in prison and $30,000 in fines, but Deslauriers reached a plea deal with prosecutors that resulted in lesser charges and two years of unsupervised probation. She was not required to register as a sex offender. The case sparked discussion about the way the legal system treats men and women who are convicted of sexual crimes, and if gender has an influence in sentencing.
There are 1,754 registered sex offenders in North Dakota, public records show. Twenty-seven of them are women. A wide range of research supports the theory that men are overwhelmingly more likely to commit sexual assault than women, but research on the differences in the way male and female offenders are treated in the justice system are hard to find.
Dr. Adam Matz, assistant professor of criminal justice at the University of North Dakota, said women, overall, tend to receive lighter sentences than men for similar offenses. Much of this is due to perceptions of women as primary caretakers for children. Matz said the age of the victim and the age of the offender are both taken into consideration with sexual crimes.
"In general, the severity of the case and the person's criminal history are probably the two biggest things in terms of sentencing decisions," Matz said. "And in general sentencing research, you do see the same trend where women tend to get more lenient sentences or are more likely to receive probation." Matz, who specializes in parole and probation, said he would not downplay probation and its impact on people's lives.
Those with little criminal history are more likely to serve lighter sentences. "Typically with females, particularly with teachers, a lot of times these are first-time offenders. They don't have a criminal history; that's another reason why there might be a disparity there," Matz said.
A study published in 2012 by a doctoral student at Arizona State University found noticeable discrepancies in the sentencing for male and female teachers convicted of having sexual relationships with students older than 15. The study noted many teachers were first-time offenders, which also can lead to lighter sentencing.
Monday, September 26, 2016
Florida paper devotes three-part editorial to assail state's sex offender residency restrictions
A helpful reader altered me to this remarkable three-part editorial from the Florida Times-Union that concluded over the weekend highlighting problems with residency restrictions for sex offenders:
Part 1: "Law is designed to fail: Many sexual predators are wandering the streets"
Part 2: "Designed to fail: Sexual predators are wandering the streets"
Part 3: "Designed to fail: Solutions for sexual predator residency requirements"
Ever eager to focus on solutions even more than problems, I will highlight here the closing sections of the last of these editorials:
A year ago, California stopped requiring all sex offenders meet residency restrictions, instead enforcing these laws only against high-risk offenders. Available housing for low-risk offenders increased dramatically, and the number of homeless offenders decreased. Counties here, such as Duval and Nassau, should immediately create working groups to look at the effectiveness of strict county residency restrictions en route to making changes. We should also look at novel ways to create more housing for released sexual felons.
Communities in Florida have begun to experiment. Several hotels that meet residency restrictions have been transformed into facilities to house sex offenders. In other places in the state, mobile home parks have been converted to complexes that serve those coming out of prison.
One of the more comprehensive programs, however, has been launched by a nonprofit in Eugene, Ore. An organization, Sponsors, provides both short-term and long-term housing for sexual offenders and predators upon their release. In addition, the organization is currently building an entire complex of apartments that will offer permanent housing for ex-felons, including those convicted of sexual offenses.
Other states such as Washington and Vermont have similarly enacted more humane and effective measures for housing sex offenders and predators that pair governmental agencies with nonprofits to locate housing.
It’s time we look at the possibility of creating such programs here. Homelessness is not the answer.
September 26, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (7)
Wednesday, September 21, 2016
Federal District Judge reasonably asks "What’s The Deal With White Guys And Child Porn?"
Long-time readers and federal district court aficionados likely know plenty about Senior United States District Judge Richard G. Kopf, a jurist who has never been afraid to say what he is thinking (and who's gotten in trouble a few times for that tendency). As evidenced by this new post at Mimesis Law, the judge has lately been giving thought to kiddie porn and the racial demographics of certain offender groups. Here are excerpts:
In America, there is no doubt that in most circumstances being white (Caucasian in census terms) is a benefit.... But, at least in one category, it appears that being white is not a really good thing, but rather a predictor for the commission of horrible federal crimes. I refer to the production of child pornography.
The Sentencing Commission has told us that child porn consumers[* footnote] are “overwhelming white.” U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 308 n. 56 (Dec. 2012). The same thing is true for producers of child pornography. That is: "Production offenders, like non-production child pornography offenders, are a relatively homogenous group demographically compared to federal offenders generally. Among production offenders in fiscal year 2010, the overwhelming majority were male (97.0%), white (85.9%), and United States citizens (97.0%)."
Moreover, child porn producers were very different than the normal federal offender. They were employed, relatively well-educated and came from a higher socio-economic background. To be specific, ... "like non-production offenders, production offenders on average occupy a higher socio-economic status than federal offenders generally. In fiscal year 2010, 87.7 percent of production offenders were high school graduates, and 46.7 percent had at least some college. In fiscal 2010, among all federal offenders, the typical offender was not a high school graduate (51.4%), and only 19.9 percent of offenders had at least some college education. There was a high degree of employment among child pornography production offenders at the time of their arrests. Of the 197 production offenders sentenced in 2010 for which there was employment data, 76.1 percent were employed."
But in all probability, you don’t know what I mean, at least on a visceral level, by the words “child porn producer.” So let me give you an example. Be prepared to puke. The following is an accurate media summary of a child porn production case that started off in Michigan and landed on my docket as well because the united group of producers spanned our nation.
"A November arrest in a child porn case has led federal investigators to a larger ring of suspects accused of working together online to manipulate young girls into engaging in sexual acts on camera. A complaint against a California man filed in Detroit federal court Thursday revealed details of a disturbing and elaborate operation that sought to lure minors into video chatrooms where they would be urged to perform 'dares' while their images were recorded.... Federal investigators learned that members of the group served distinct roles that included 'hunters,' 'talkers,' 'loopers' and 'watchers'."
What happened to these young girls, mostly in their early teens, was horrendous. Suffice it state that they were cajoled or trapped into violating themselves in the most sickening and humiliating of ways, in one case blackmailed to continue the abuse, and in another case permitted to harm herself for the pleasure of the observers.
My part of this case was simple. The Nebraska white guy, who was 31, and a hardworking man, with post-secondary education, and respected member of his community, was confronted at his home by the FBI. He told me that he was relieved when the feds came to the door because he didn’t know how to stop. He immediately spilled his guts. I accepted the Rule 11(c) (1) (C) plea agreement, containing an appeal waiver, and requiring me to sentence the defendant to 35 years in prison. His Guideline range was life.
He was very smart to have accepted the deal because I would likely have imposed a life sentence. Despite my reservations, I approved the plea agreement to avoid a trial with the kids being forced to testify. I also sentenced him to a life of supervised release when he gets out of prison as an old man. He was capable of making, and I required him to pay, a substantial amount of restitution to the children.
As I reflected on the above, I wondered about the word “thug” with all the racial freight that word carries. I asked myself how I should describe these white child porn producers assuming I see no problem with the word “thug.” Perhaps I could call them “white devils!” Anyway, at this point I realized that my mind was wandering, so I returned to the essential question.
What the hell is wrong with white guys?
[* footnote] As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers. See here.
Wednesday, September 07, 2016
Rounding up some recent commentary on recent Brock Turner controversies
Folks who following notable sentencing stories, and the notable reactions from various folks to notable sentencing stories, surely know the name Brock Turner. And recent developments in his sentencing saga have prompted another round of useful commentary from various sources. Here is a sample of this commentary, via links and full headlined:
From Mic here, "Brock Turner just registered as a sex offender. Here's what that means for him."
From The National Review here, "California Democrats Suddenly Think Mandatory Minimums Are a Good Idea"
From Slate here, "The Armed Protests Outside Brock Turner’s Home Are Dangerously Counterproductive"
From Vox here, "The justice system needs to take rape more seriously. That doesn’t mean longer prison sentences."
Some (of many) prior related posts on the Brock Turner case:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
- California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
Thursday, August 25, 2016
Sixth Circuit panel concludes Michigan sex offender registration amendments "imposes punishment" and thus are ex post unconstitutional for retroactive application
In a significant panel ruling today, the Sixth Circuit has concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here) that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively. Here is some of the concluding analysis from the unanimous panel decision reaching this result:
So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. In reaching this conclusion, we are mindful that, as Smith makes clear, states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment. But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.
A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.
We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89; accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.
I was involved with some amicus briefing in this case, so I am a bit biased when saying I think the Sixth Circuit got this one right. But I do not think I am showing any bias when asserting this ruling is a big deal (and could become an even bigger deal if Michigan seeks a further appeal to the full Sixth Circuit or to the US Supreme Court).
Massachusetts judge's probation sentence for sexual assault gives east coast its own Brock Turner
This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California. Here are the details:
The two women were asleep on a bed after drinking at a party when they were sexually assaulted. A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.
The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus. The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.
Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday. Mr. Becker also would have had to register as a sexual offender.
But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.
According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”
“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.
After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.
Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents. According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.
In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.
The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators. In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation. He also must register as a sex offender. Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....
Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege. Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”
“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said. “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”
August 25, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)
Sunday, August 21, 2016
Detailing the inefficacy of sex offender residency restrictions in Milwaukee
The Milwaukee Journal Sentinel has this lengthy new article about the problems created by a residency restriction for sex offenders in place in Wisconsin's largest city. The article is headlined "Sex offender ordinance hasn’t worked as planned, putting public at greater risk," and here are excerpts:
In the two years since Milwaukee leaders enacted the residency ordinance as a way to push sex offenders out of the city, little has gone as planned. Rather than reducing the number of sex offenders, the ordinance has put more than 200 of them in the street and failed to keep new offenders from moving into the city, a Journal Sentinel analysis has found.
Experts say the increase in homeless sex offenders could put the public at greater risk. Studies show that without a permanent home, the lives of offenders become more unstable, increasing the chance they will re-offend. “Somebody might feel safer today because this one person doesn’t live on their block. But as a community, we are not safer, and this is not sustainable,” said Holly Patzer, executive director of Wisconsin Community Services, a nonprofit advocacy group focused on criminal justice and public safety.
The ordinance bans many sex offenders from living within 2,000 feet of areas where children are commonly found, such as schools, parks and day care centers. In Milwaukee, that means hundreds of sex offenders are limited to 117 possible housing units. And even those 117 units might not be available to rent or buy.
When the Milwaukee Common Council voted 8-6 to approve the ordinance in 2014, supporters said it would protect the public by pushing more offenders out of the city and into the suburbs, where a disproportionately low number of the county’s offenders lived. Supporters also argued the extremely restrictive rules would send a message to lawmakers in Madison: that Wisconsin needs a statewide sex offender residency law, rather than a patchwork of local ordinances.
But an analysis of state and Milwaukee sex offender registries shows those goals haven’t been achieved since the vote:
■ The number of homeless sex offenders in Milwaukee County has spiked, rising from about 15 in early 2014 to 230 this summer. Milwaukee police officials warned in 2014 that homelessness would increase, but a lead sponsor of the ordinance, Ald. Tony Zielinski, said he didn’t believe them.
■ Milwaukee County suburbs continue to house a disproportionately low share of the region’s sex offenders. In fact, their proportion — about 10% of county offenders — is virtually unchanged since the ordinance was passed.
■ Hundreds of offenders deemed “affected” by the ordinance — and thus, effectively banned from living in Milwaukee — continue to reside in the city, flouting the ordinance and accepting periodic fines.
■ The ordinance hasn’t prodded the Legislature to enact a statewide sex offender residency law, though there is renewed optimism it could happen soon.
Ald. Michael Murphy, who sympathized with supporters of the 2014 ordinance but voted against it, voiced concern at the time that the measure would increase homelessness among sex offenders and cause a greater threat to public safety. Murphy said he’s “still very fearful” about the number of homeless offenders. “My concern is that these offenders will re-offend, and everybody will be pointing fingers,” he said.
Although the data suggests the ordinance hasn’t worked as expected, some local leaders said they have no plans to make any changes. Zielinski said the ordinance has protected residents and stopped some sex offenders from moving into local communities. However, he could not provide specific examples to support his view.
Zielinski also accused the Wisconsin Department of Corrections of “fudging the numbers” of homeless Milwaukee offenders. Likewise, he didn’t provide evidence to prove the allegation, saying only that the department has been slow to provide him with accurate data in the past. “I’d have to check those numbers, but I know we have prevented a number of serious sex offenders from moving to Milwaukee,” Zielinski said. “The only thing I can tell you for sure is that Milwaukee did the right thing. Otherwise, we would have continued to be a dumping ground for state sex offenders.”...
[In 2014] four aldermen proposed their own ordinance: sex offenders who met certain requirements couldn’t live within 2,000 feet of schools, day care centers, parks, recreational trails, playgrounds or areas where children are known to congregate. Any offender in violation could be fined $1,000 to $2,500 per day. The aldermen argued the ordinance was the city’s best hope of forcing state officials, who had largely ignored their concerns, to pass a statewide residency law. “Although this may be seen as a punitive measure, I’m hoping that this sends a shot across the bow to the ones who really control the whole system and methodology of how we place sex offenders (in) the state of Wisconsin,” then-Ald. Joe Davis Sr. said.
But officials from the state Department of Corrections and Milwaukee Police Department warned that rather than moving to the suburbs, many sex offenders would stay in the city and become homeless. In turn, they said, it would be difficult to track offenders and recidivism rates could rise. Then-police Inspector Carianne Yerkes told members of a council committee that she worried the city’s ordinance wouldn’t prod state leaders into action. “I don’t know how long we can wait for that, and I’m afraid of what will happen in between,” said Yerkes, who has since been promoted to assistant chief.
Ultimately, the council passed the ordinance, Mayor Tom Barrett signed it into law in July 2014, and the rules went into effect in October 2014. Two years later, the city is seeing the practical effects of the ordinance:
■ The percentage of homeless sex offenders in Milwaukee County has jumped from less than 1% in early 2014 to 9% in mid-2016, according to an analysis of Department of Corrections data. Most homeless offenders are still on GPS monitoring and have to check in weekly with the state, but they have no permanent residence.
■ Sex offenders haven’t moved out to the suburbs en masse, doing nothing to dispel the “dumping ground” perception. About 10.5% of the county’s offenders live in the suburbs now, compared with 11% in early 2014.
■ The city continues to add hundreds of new sex offenders, despite the new rules. Department of Corrections data shows that at least 380 Milwaukee sex offenders have either moved into the city or been added to the registry since early 2014. The city has about 100 more offenders today than it did in 2014....
The ordinance hasn’t forced sex offenders out of the city for two primary reasons: most sex offenders are exempt from the rules, and others have willfully violated them. Milwaukee Police Department data shows about three-quarters of offenders living in the city are exempt because they were grandfathered in, live with family or aren’t required to follow the ordinance because of the nature of their crimes. The Common Council wrote those exemptions into the ordinance.
Among the 620 offenders in the city who aren’t exempt, about 460 have city addresses, putting them in violation of the ordinance. The remaining 160 are homeless or don’t list addresses. Milwaukee police have issued tickets to most of the 460 offenders, generally fining them about $1,000 to $1,300 per incident. Dozens of other offenders have received warnings or notices of violation.
“When MPD discovers an offender in violation, enforcement action is taken,” the police department said in an email. But those citations — most of which were issued between December and June — haven’t been enough to force hundreds of offenders to leave the city. Several offenders have been issued three citations, yet they continue to reside in Milwaukee.
Wednesday, August 17, 2016
Split Pennsylvania Supreme Court limits reach of state's lifetime sex offender registry requirement
As reported in this local article, a "ruling issued by a sharply-divided Pennsylvania Supreme Court could greatly alter the registration requirements imposed on some types of convicted sex offenders." Here is more about the ruling and its likely impact:
The decision by the court's majority states that offenders who commit some kinds of sex crimes, such as possessing child pornography, cannot be made to register with state police for life unless they commit at least one more sex crime after their initial convictions. In other words, they have to become recidivists to qualify for the lifetime registration. State police have been requiring such first-time offenders to register for life if they have multiple sex crime convictions stemming from just one criminal incident.
Dauphin County District Attorney Ed Marsico said Tuesday that the high court's decision likely will have an impact on plea negotiations in certain sex-crime cases. The difference in registration requirements - some offenses carry registration terms as low as 10 years - can prompt a defendant to plead guilty to a lesser sex crime to avoid the lifetime registration. "The biggest impact will be with plea negotiations," Marsico said. "These registration requirements are often at issue."
The dispute before the Supreme Court hinged on the interpretation of the wording of a state law that requires lifetime registration for some sex offenders who receive "two or more convictions." A Supreme Court majority consisting of Chief Justice Thomas G. Saylor and Justices Kevin M. Dougherty, Max Baer and Christine Donohue concluded the wording means sex offenders in some cases must be convicted of such crimes for two separate incidents to trigger the lifetime registration mandate. Justices Debra McClosky Todd and David N. Wecht dissented.
The majority decision means sex offenders convicted of "Tier 1" crimes including kidnapping of minors, child luring, institutional sexual assault, indecent assault, prostitution involving minors, possessing child porn and unlawful contact with a minor won't be required to register for life on their first offense, no matter how many charges their first convictions entail. They will still have to register with police for 10 years.
The Supreme Court majority opinion written by Dougherty dealt with the case of a 21-year-old Montgomery County man who was convicted of persuading his 16-year-old girlfriend to take and send sexually explicit photos of herself. He was arrested in 2000 when her father found the pics. After pleading guilty to seven child porn counts, he was sentenced to 5 to 23 months in county prison, plus 5 years of probation.
At the time of his plea and sentencing, the man, who is identified in the court opinion as A.S., along with the judge, prosecutor and defense attorney believed he would be subject to a 10-year registration, Dougherty noted. State police told him he had to register for life because of his multiple convictions in that single case....
Cumberland County District Attorney David Freed agreed with Marsico that the Supreme Court ruling could affect some plea talks. Still, he said it won't greatly alter the course of sex crime prosecutions. "As prosecutors, we'll be able to handle this," Freed said. The question is whether there will be moves in the Legislature to alter the law in light of the high court's decision.
Defense attorney Brian Perry praised the Supreme Court ruling for giving some offenders a chance to reform. "The court's decision allows individuals to rehabilitate themselves and not have to deal with (registration) for the rest of their lives," Perry said. "From the first-time defendant's perspective, it certainly makes sense."
The full opinion from the Pennsylvania Supreme Court in this case is available at this link.
Tuesday, August 16, 2016
"Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism"
The title of this post is the title of this notable paper by J.J. Prescott now appearing on SSRN. Here is the abstract:
The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence that these laws work to reduce sex offender recidivism (despite years and years of effort), and some evidence (and plenty of expert sentiment) suggests that these laws may increase sex offender recidivism.
In this Article, I develop a more comprehensive economic model of criminal behavior — or, rather, I present a simple, but complete model — that clarifies that these laws have at best a theoretically ambiguous effect on recidivism levels. First, I argue that the conditions that must hold for these laws to increase the legal and physical costs of returning to sex crime are difficult to satisfy. There are simply too many necessary conditions, some of which are at odds with others. Second, I contend that even when these conditions hold, our intuitions mislead us in this domain by ignoring a critical aspect of criminal deterrence: to be deterred, potential offenders must have something to lose. I conclude that post-release laws are much more likely to succeed if they are combined with robust reintegration efforts to give previously convicted sex offenders a stake in society, and therefore, in eschewing future criminal activity.
August 16, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (2)
Friday, August 12, 2016
"Let’s Talk About Sex: Defining 'Sexually Oriented or Sexually Stimulating' Material in Sex Offender Contacts"
A helpful reader altered me to this intriguing student note authored by Ricardo Roybal. Here is how it gets started:
Sex offenders are perceived to be the “scourge of modern America, the irredeemable monsters that prey on the innocent.” As this quote indicates, sex offenders are painted by society with a single, rough brush. This view, facilitated by a handful of high-profile sexual assaults involving children in the early 1990’s, led to legislative action.
In New Mexico, the Sex Offender Registration and Notification Act (“SORNA”) requires individuals convicted of a sex crime to comply with various restrictions specified in “Sex Offender Supervision Behavioral Contracts.” Among the limitations in these sex offender contracts is a ban on viewing or possessing any “sexually oriented or sexually stimulating” materials.
In State of New Mexico v. Dinapoli, the New Mexico Court of Appeals addressed the constitutionality of this provision in a sex offender contract. In the case, the sex offender, Robert Dinapoli, was deemed to have violated this provision because he possessed three mainstream DVDs — the American and Swedish versions of The Girl with the Dragon Tattoo, and a third film titled I Spit on Your Grave. Dinapoli objected on the grounds that the he was deprived of notice due to the broad and vague structure of the violated term.
The Court of Appeals rejected this argument and accordingly ruled that Dinapoli was afforded proper notice and dismissed the contention that the condition was overly broad or vague.
This Note focuses on this issue and aims to resolve it. This Note argues that the provision prohibiting “sexually oriented or sexually stimulating” materials in Section 6(A) of the New Mexico sex offender contract is overbroad and impermissibly vague. As a result, this provision is prone to arbitrary and biased decision-making, and fails to provide proper notice to the offender as to what conduct it prohibits.
Friday, August 05, 2016
Are sex offender registries uniquely harmful to the LGBTQ community?
The question in the title of this post is prompted by this new Advocate commentary headlined "Injustice: How the Sex Offender Registry Destroys LGBT Rights." The piece is more focused on youths placed on registries than on the broader issues of registries and the LGBTQ community, but the article still highlights many important intersectional elements of age, sexual orientation and registries:
It’s hard to believe that until recently, there were still laws on the books that made it illegal to be gay. Our legal system may no longer explicitly prohibit same-sex relationships, but we have found new ways to criminalize queer kids. We label them as sex offenders.
Across the country, children are put on sex-offense registries for behaviors that range from “playing doctor” to streaking to having consensual sex with peers a few years apart in age. The statistics are scary: out of 800,000 people on registries, one out of four — more than 200,000 — are under the age of 18. A child as young as 8 years old can be labeled as a “deviant.” Additionally, initial investigations show a disproportionate number of these youth are queer.
To be clear, kids do commit serious harm. Regardless of the behavior, though, two decades of research have shown that registration does not reduce recidivism or prevent harm in the first place. And the LGBTQ disparity isn’t a reflection of justice — or public safety. It’s an indication of the implicit and explicit bias woven throughout the legal and welfare systems and all the more reason to make eliminating the practice of registering youth a priority.
A report, called "Give the Kid a Break — But Only if He’s Straight," found that LGBTQ young people are given harsher punishments than their straight, gender-conforming counterparts. In the study, participants suggested disciplinary consequences for an older teenager having sex with a 14-year-old. A 16-year-old straight culprit was much less likely to end up on the registry than a gay 16-year-old....
Even the laws themselves can be blatantly discriminatory. In the 2003 case Lawrence v. Texas, the Supreme Court struck down state bans on same-sex sodomy; however, Justice Anthony Kennedy’s majority opinion included this single negating phrase: “[the] present case does not involve minors, which this comment will refer to as “the minor exception.’” Kennedy was referring to adult-on-minor sexual conduct, but states have used it as a loophole. Texas law, for example, considers sexual contact with a minor under the age of 17 a felony, unless both participants are under 18, no more than three years apart, and they are of different sexes.
Once young people are on the registry, the trauma grows. Children are ostracized, socially isolated, and often physically banished from their homes and communities by child safety zones. Their life becomes a struggle for employment, and they must regularly check in with law enforcement; if they fail to report even a minor change in their lives, they can be sent to prison with a felony. LGBTQ youth in prison can also be both the targets of sexual abuse and homophobia. One out of five youth on the registry have attempted suicide. Queer youth already have high rates of suicide, so this adds to the risk.
The laws created to protect our children from harm have potential to be very harmful, potentially fatal, and definitely life-altering. Registering youth is contrary to public safety and a costly burden to law enforcement, but it is our LGBTQ youth who are paying the high prices. While they have shown great resilience and courage, this debt is not theirs to pay. As a society, we need to redress this miscalculation and eliminate youth registration laws.
Monday, August 01, 2016
Quickly responding to (nonexistant?) problem, NY Gov bars paroled sex offenders from playing Pokemon Go
As reported in this New York Daily News article, headlined "Cuomo orders Pokémon Go prohibition for sex offenders on parole," the chief executive of a state has decided he must chiefly concern himself with who plays with a new video game. Here are the details (with one seemingly important fact from the story highlighted):
For sex offenders in New York, it will be Pokémon No Go. Gov. Cuomo Sunday ordered that the state make it a condition of parole for sex offenders that they stay away from Pokémon Go and similar interactive games, the Daily News has learned.
The state Department of Corrections and Community Supervision is barring all registered sex offenders under supervision from downloading, accessing, or playing such Internet gaming activities, under the directive.
Roughly 3,000 predators currently on state parole will be immediately impacted, state officials said. The state will also be sending guidance to the counties around the state that supervise another 5,000 lower level convicted sex offenders urging them to adopt the new policy.
"Protecting New York's children is priority number one and, as technology evolves, we must ensure these advances don't become new avenues for dangerous predators to prey on new victims," Cuomo said. "These actions will provide safeguards for the players of these augmented reality games and help take one more tool away from those seeking to do harm to our children."
The Pokémon Go app sends players on a hunt to catch digital Pokémon characters. If a sex offender is caught playing the game in New York, it would be a violation of the terms of their parole and they could be returned to prison, a Cuomo aide said.
Cuomo also sent a letter to software developer Niantic Inc. to request assistance in keeping Pokémon Go out of the hands of sex predators. "The State has taken action to prohibit sex offenders from using this game, but we need your assistance to make certain that sex offenders will not continue to use Pokémon GO by technologically barring their use," Cuomo wrote in the letter. "Working together, we can ensure that this danger today does not escalate into a tragedy tomorrow."
The governor also directed the Department of Criminal Justice Services to provide Niantic with the most recent version of the state's sex offender registry in the hopes the company will use the list to keep people from having access to the app. The Department of Criminal Justice Services will also contact Apple and Google "to inform them of these public safety concerns and work with them to enhance user safety," Cuomo said.
The order and letter came two days after state Sens. Jeffrey Klein and Diane Savino released a report titled "Protecting Our Children: How Pokémon Go and Augmented Reality Games Expose Children To Sex Offenders." After sending staffers over a two-week period to more than 100 homes of level-2 and level-3 sex offenders in the city, the senators found that characters generated by the Pokémon Go app appeared 57% of the time. That figure rose to 73% when related items like PokeStops and Pokémon gyms are factored in, the report showed. The two senators called for passage of legislation that would keep young children and other players at least 100 feet away from a convicted sex offender's home.
Officials have also expressed concern that a feature of Pokémon Go called a "lure" can make it easier for sex predators to tempt potential victims to come to their homes. Savino on Friday said there's no evidence to any kids were sexually abused after being lured by the Pokémon app.
In light of the last line I have highlighted above, suppose New Yorkers should be grateful that state officials have been so quick to deal with the problem of "Poke Perves" even before such a problem even exists. Sigh.
Sunday, July 31, 2016
Reviewing disconcerting realities when kids are put on sex offender registries
Eric Berkowitz has this notable New York Times commentary, headlined "Punishment That Doesn’t Fit the Crime," about juveniles and sex offender registries. Here are excerpts:
When Matthew Grottalio was 10 years old, he and his older brother initiated a touching “game” with their 8-year-old sister. “None of us knew what we were doing,” he said, and he soon forgot about the episode. But later that year, 1998, his sister’s teacher found out and notified the authorities. Just weeks after Matthew’s 11th birthday, police officers handcuffed him outside his fifth-grade classroom.
Matthew and his parents agreed to a guilty plea in exchange for two years of probation, which he spent in a foster home. (His brother also pleaded guilty.) When he returned to his family, they were stunned to learn that he was listed on the Texas sex offender registry website, and would be for 10 years. He was just 13 years old. Neighbors threw a Molotov cocktail at his house and shot and killed his family’s dog. Local newspapers listed him by name along with adult sex offender “monsters” in the area.
He soon “hated life, hated everybody.” Their sons’ ordeals shattered their parents’ marriage of two decades. Matthew dropped out of high school, ran away, was homeless for two years, sank into drugs and served time for burglary and parole violations. His decade on the registry had ended by 2011, but internet searches continued to show him on the list — and still do. Even worse, his parole included restrictions suitable to a serial child rapist. He was barred from any unsupervised and unapproved contacts with people under 17, and from any contact with his sister, who was by then an adult. (She says she never considered him a threat.) He also was barred from contact with the children of the woman he married in 2013. Even contact with the baby the couple had together was in limbo until he passed a sex offender evaluation....
Mr. Grottalio’s story is not unusual. In about 40 states, juveniles are listed on sex offender registries, often for their entire lives. In about 19 states, there is no minimum registration age. Prepubescent children are listed along with violent adult sex criminals. While precise data is unavailable, it appears that as many as 24,000 of the nation’s more than 800,000 registered sex offenders are juveniles, and about 16 percent of that population are younger than 12 years old. More than one-third are 12 to 14....
In her career as a criminal defense lawyer for juveniles and a researcher on juvenile sex offenders, Nicole Pittman, now a vice president at Impact Justice, defended or reviewed about 2,000 juvenile sex cases. Most involved what she called “normative” sexual behavior and “experimentation.” Nevertheless, on many sex offender websites, there are juveniles’ photos, names and addresses, and even maps to their homes....
2006, about 32 states had sex offender laws registering juveniles. That year, the federal Adam Walsh Child Protection and Safety Act mandated, for the first time, that certain youths 14 and over be registered in the state where the violation occurred. (Once that happens, the person also goes on the national registry.) The law also said that offenses such as indecent exposure and public urination had to be included. At least six states now require juveniles to be on the register for life. Given that state and federal laws have grown into an often conflicting tangle of requirements and penalties, there can be no end to some kids’ ordeals....
The expansion of sex offender laws to include juveniles was based on the assumption that kids who sexually transgress cannot be reformed. However, research has shown this assumption to be false. Only 1 percent to 7 percent of children who commit sexual offenses will do it again — much lower than the 13 percent recidivism rates for adult sexual offenders.
The policy seems to succeed only in making life difficult for offenders, subjecting them to harassment and isolation. Of the more than 500 youth sex offenders whose cases Ms. Pittman examined, about 100 had attempted suicide.... Knowing this, prosecutors like Vicki Seidl, the senior lawyer in the juvenile division of the Kent County district attorney’s office in Michigan, now push for pleas that keep youths off registries. Other prosecutors are following suit.
But that alone will not solve the problem. Juveniles, particularly ones under 14, need to be off the registries entirely. In 2011, the Department of Justice relaxed the requirement for registering juveniles, but legislators still fear that they’ll be accused of being “soft” on sex crimes.
Saturday, July 30, 2016
Judge Jack Weinstein authors mega-opinion threatening to find sentence unconstitutional if offender not placed in certain prison(!?!?)
A number of helpful reader alerted me to this notable local story describing the latest remarkable (and legally suspect?) sentencing opinion by US District Judge Jack Weinstein. The piece is (inaccurately) headlined "Brooklyn judge says no prison for convicted child molester," and here are the reported details:
A Brooklyn federal judge on Thursday urged the U.S. Bureau of Prisons to hold a convicted child molester in a medical facility and said he would find the 15-year mandatory minimum sentence unconstitutional if the bureau doesn’t comply.
The apparently unprecedented move by U.S. District Judge Jack Weinstein, who said defendant “D.W.” — identified on the court docket as Darnell Washington — had mental problems and would be a suicide risk in the general prison population, reflected the judge’s long-standing criticism of mandatory minimums.
Weinstein said Washington, 27, of Brooklyn, a repeat offender convicted of both child pornography charges and sexual exploitation of a minor, had been abused as a child, raped during an earlier prison stint, identified as gay and was suicidal.
The judge said 15 years in a regular prison would make him “uniquely vulnerable” to abuse or solitary confinement, and amount to cruel and unusual punishment. He said the time should be served at the Federal Medical Center prison in Devens, Massachusetts, where sex-offender treatment is available, or another medical facility.
The Bureau of Prisons is not obligated to follow a judge’s preference, but Weinstein said if his recommendations were ignored and Washington was put in “general population of a medium or high security prison” he was “prepared” to find the sentence unconstitutional.
“The court is required . . . to impose a sentence of fifteen years in prison on this defendant,” Weinstein wrote in his 215-page ruling. “But, it has the responsibility and power to ensure that the sentence is carried out in a civilized way.”
Until I have an opportunity to review the 200+ page opinion in this case (which I cannot yet find on-line), I am not yet prepared to criticize Judge Weinstein's work here. Moreover, now that the judge has imposed the formal sentence, I am not sure he even has any proper jurisdictional basis to declare it unconstitutional if (and when?) prison official do not comply with his placement mandate.
UPDATE: A helpful reader sent me a copy of the full opinion in US v. DW for posting here: Download US v DW
Tuesday, July 26, 2016
District Court explains reasons for disallowing penile plethysmograph and visual response testing for child pornography offender
A helpful reader altered me to a notable sentencing opinion handed down last week by District Judge John Kane in US v. Cheever, No. 15-cr-00031-JLK (D Colo July 18, 2016) (available here). The first part of the opinion provides a thoughtful account of the sentencing judge's accounting of application of the 3553(a) sentencing factors to defendant Shawn Cheever after his plea to a single count of possession of child pornography, but an "addendum" to the opinion is what makes it truly blog-worthy. In the addendum, Judge Kane explains why he is refusing to "authorize a treatment provider to require polygraph, plethysmograph (PPG) and visual reaction time measurements." His lengthy explanation merits reading in full, and here are a few of many interesting passages therein:
Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. Rather, just as with the polygraph (lie detector) machine, it is used as a tool of coercion by both law enforcement personnel and treatment providers. The plethysmograph is used to obtain inculpatory admissions, the reliability of which is at best equivocal. The patient or suspect may believe he can manipulate the results — and with a modicum of sophistication or psychopathy, he may well be able to do so. Or, the suspect or patient may succumb to the threat, overt or implied, that his refusal to submit to testing has negative implications that can result in further incarceration, withholding of privileges or being held back in the treatment or incarceration processes and therefore lie about his interests or past behavior. Moreover, it is not fanciful speculation that false test results can be conveyed to the individual in order to reduce resistance and gain inculpatory admissions....
[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. The violation is per se. It is paradoxical that the government would mandate individuals subject to supervised release to join an administrator of the test in conduct so vile that it landed him in prison in the first place. The statute criminalizing the possession, use and distribution of child pornography has no exceptions. Both the administrator and the subject are violating the statute. Moreover, the well-established continuing damage inflicted on the child victims portrayed in the pornography derives from the fact that they are seen repeatedly by viewers and it makes not one shred of difference to the victims that the viewer is a pervert or a therapist....
Prohibiting courts, probation and parole officers and treatment facilitators and providers from using devices that fail tests of scientific validity is necessary, but a further comment about the line Judge Noonan describes so eloquently will perhaps provide a resolution to the underlying debility. Judge Noonan evokes the task of Orwell's "Thought Police" — and using what is "discovered" as a basis for further punishment or superficial rehabilitation. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) stated: "freedom of thought. . . is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal."...
The established traditions of our law embrace the ancient common law principle that liberty should not be impinged or threatened for what a person thinks, but only for what a person does. The maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) was written long before the invention of the plethysmograph or other machines intended to probe the recesses of the mind....
Penile plethysmograph tests rely on the heavy assumption that stimuli arousal is strongly related to the potential for recidivism. Inferences by the courts about a person's potential for sexual offense based on his innermost sexual desires fail to acknowledge that arousal data is not an ineluctable precursor to deviant behavior. This observation, a fortiori, illustrates the dangerous conflation of thought with behavior. Before administering the penile plethysmograph without questioning its obvious scientific shortcomings (not to mention its ethical implications), it is crucial that the courts, probation and parole officers and PPG evaluators recognize 1) the power of refrain; and 2) the difference between thought and action. The presuppositionless assumption is that any "arousal level" occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses. Urges, however, are not always overwhelming. Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.
UPDATE: Another helpful reader altered me that there is now this Denver Post article about the opinion in Cheever, which is headlined "Judge criticizes federal sentencing guidelines in pornography case: Kane said he would have given sex offender lesser sentence if permitted by law."
Friday, July 22, 2016
"Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses"
The title of this post is the headline of this notable new article authored by Anthony Dillof and now available via SSRN. Here is the abstract:
Federal prosecution of individuals for possessing child pornography has risen steadily and dramatically over the last twenty years. As the number of prosecutions has increased, so have the penalties. Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence. The article considers whether such sentences are just, fair and proportionate. To answer this question, the article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished.
The article argues that while the possession of child pornography by a large group of persons in aggregate creates significant social harm — for example, a robust market for the production of child pornography — individual acts of possession, considered at the margin, have only a trivial impact. This raises a serious problem of disproportionality in punishment for retributivists. The article attempts to solve this problem by developing a theory of aggregate harm offenses. According to this theory, even acts that have little marginal impact may constitute serious moral wrongs insofar as they violate the principle of rule consequentialism. Rule consequentialism requires acting pursuant to a rule with desirable social consequences. The article develops a rationale for rule consequentialism and explores how rule consequentialist norms may be used to justify and explain not only child pornography possession laws, but also a broad group of superficially unrelated criminal offenses.
Monday, July 18, 2016
Detailing the steady growth in registered sex offenders in Texas
Last week, the Austin American-Statesman had this lengthy and effective article highlighting the history and modern realities of the sex offender registry in Texas. The piece is headlined "Program to corral ballooning sex offender registry failing," and here are excerpts:
Texas started its sex offender registry 20 years ago as a way for the public and police to monitor a group of criminals believed to be virtually incapable of rehabilitation and thus likely to commit additional sex crimes. Since then, however, many studies have concluded that it is uncommon for sex offenders — particularly those who ... are designated as low-risk — to commit new offenses.
According to the Texas Department of Public Safety, more than 90 percent of the state’s registered sex offenders are not considered to be at high risk of re-offending.
Yet the registry is like a cemetery: Because many offenders are placed on it for a lifetime, or at least decades, it only expands in size. Over the past five years, Texas has added new names to the list at a rate of nearly a dozen every day.
In 2011, Texas began a so-called deregistration process. The intent was to remove those who were unlikely to re-offend from the list and, in so doing, save taxpayers money. By focusing police attention on truly dangerous offenders, it would also improve public safety.
By that measure, however, the program has been a bust. In the 5 1/2 years it has been in existence, only 58 sex offenders have been permitted to deregister from the Texas list — less than one-tenth of 1 percent of the current registry....
[T]he calculated risk offenders pose to the public typically has little to do with their appearance on the registry. While a handful of states meaningfully separate low- from high-risk offenders — Massachusetts excludes its lowest-risk offenders from the public list — many, like Texas, do not.
So-called Romeo offenders, convicted of sex with an underage girlfriend or boyfriend, exist side by side with rapists. There is no consideration as to whether a molestation occurred within a family — and thus, experts say, is statistically unlikely to reoccur outside it — or was committed by a predator snatching an unknown child off the street.
Surveys show the public believes public registries make neighborhoods safer, because sex criminals demand the extraordinary supervision and exposure. Yet research also indicates residents rarely consult the public lists.
And while some criminologists still suggest the registries improve crime rates, a growing number of studies have concluded they have had no meaningful impact on sex offenses by predicting or preventing them. “The abundance of evidence does not point to the effectiveness of registration systems in reliably classifying offenders, reducing recidivism, or preventing sex crimes,” Jill Levenson, a national expert in registry studies, concluded in a research roundup published earlier this year.
Practitioners say an offender’s appearance on the list can even have the opposite of its intended effect. Employment and housing restrictions that accompany registration — most state-regulated occupations in Texas prohibit sex offenders from holding licenses, and at least 86 cities limit where offenders can live — can drive registrants back into illegal behavior, said Pierce, who has worked with sex offenders for more than two decades.
Despite their low utility, the registries continue to balloon in size. As of June 1, Texas’ stood at 87,686 — 35 percent higher than five years ago. Maintaining the growing lists is increasingly expensive. In 2006, the Texas Department of Public Safety assigned 10 staffers and spent $343,000 to manage the registry. By last year, it required 21 employees and nearly four times the money.
Local law enforcement agencies, where offenders must periodically check in, bear the bulk of the costs. The Houston Police Department, which monitors more than 5,000 registered sex offenders, employs 14 people — 10 of them officers — who do nothing else.
Monday, July 11, 2016
PBS widely premiering sex offender documentary "Prevert Park"
As detailed via this PBS page, tonight is the official premiere for a notable film about a notable group of criminal offenders. The film is titled "Pervert Park," and here are excepts from the PBS description of this hour-long film:
Pervert Park by Scandinavian filmmakers Frida Barkfors and Lasse Barkfors takes place at Florida Justice Transitions in St. Petersburg, Fla., founded in 1996 by Nancy Morais, the mother of a sex offender who had difficulty finding a place to live after his conviction. It looks like your average trailer park, but this is the place 120 residents call home. Their lives are heavily regulated: Offenders are forbidden by law from living within 1,000 feet of any place children congregate. The residents are required to check in with the Florida State Police twice a year, are monitored by satellite surveillance and are listed in a sex-offender registry easily available online as a phone app. But the park also provides space for small businesses, including a hair salon. All of the program’s staff are convicted sex offenders as well.
There are currently more than 800,000 convicted sex offenders in the United States, and the country has seen an estimated 15% increase in registered sex offenders over the past five years. But the film offers a mindset-challenging look at this deeply stigmatized category of criminals. According to Florida Justice Transitions president and CEO Jim Broderick, the park’s residents want to “become productive members of society and want to give back.”
The documentary does not stint on candid discussions of the offenses committed by the residents, who say they feel free to open up in-group sessions led by therapist Don Sweeney. Stories vary from that of Jamie, a 22-year-old man caught in an Internet sting after expressing interest in having sex with a minor — which Sweeney characterizes as a common case of entrapment — to far more disturbing and unforgivable crimes.
A resident named Patrick confesses to an early infatuation with pornography and a life marked by failed personal relationships. He raped a young Mexican girl, which he characterized as an act of revenge “against all women.” Several residents tell of being sexually abused as children. Will says he was “fondled by a babysitter when I was 6 years old.” As an adult, he exposed himself to a young girl and spent several years in jail.
A harrowing story is told by Tracy, who says her father began having sex with her when she was a child. She was later abused by her mother’s boyfriends, which “caused my body to want those same feelings.” She eventually had sex with cousins and underwent an abortion at 11 years old; she would later have sex with her own son. According to therapist Sweeney, Tracy was “groomed” for abuse by her father, who insisted sex was a natural way to show affection. She in turn groomed her son by asking his “permission.” He continued the cycle of abuse, later sexually assaulting a 3-year-old boy....
Pervert Park raises significant questions. Should America give these criminals a second chance? And can their experiences help in devising a successful strategy for reducing the growing number of sex crimes?
“The typical reaction of normal citizens is, ‘We don’t care. They committed a crime and we don’t care if they die,'” says Sweeney. Yet one offender says it is time not only for greater public understanding of sexual crimes, but for the offenders to take the lead in stating their case. “You have to look at the bigger picture,” he says. “Nobody will stand up and fight for us, and that’s why we’ve got to do something about it now.”
“These are the crimes that are often too painful or uncomfortable to discuss,” say filmmakers Frida and Lasse Barkfors. “These are the people no one wants to live amongst. These are the neighbors we wish away and, through sex offender laws and labeling, literally and figuratively move to the outskirts of our towns and our lives. And yet there they are, 1,000 feet away from our schools and our parks and playgrounds and churches.
“Although many of their crimes are unspeakable, what do we, as a community, gain from our willful silence? If we hope to curb the cycle and culture of sexual violence, is there value in exploring the lives of sex offenders, regardless of how heartbreaking and difficult it might be?”
Wednesday, July 06, 2016
Deep dives into realities of sex offender registries two decades after they started to proliferate
Vox has these two lengthy new pieces looking at the realities of sex offender registries:
Here is an extended excerpt from the first of these pieces:
The registry was designed for "sexual predators" who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: Sexual predators" were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding "sexual predators" needed to fall to parents....
Twenty years later, the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished; the idea that it’s up to potential victims to change their behavior is usually criticized as victim blaming.
Yet the sex offender registry is still going strong.
It hasn’t worked as a preventive tool. Instead, it's caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live — then further constrained by harassment or shunning from neighbors and prejudice from employers.
Some of the people on the sex offender registry have had their lives ruined for relatively minor or harmless offenses; for example, a statutory rape case in which the victim is a high school grade younger than the offender.
Others are people like Brock Turner — people who have committed serious crimes that are nonetheless very different from the ones the registry was supposed to prevent, and which the registry might, in fact, make harder to fight.
This happens often in the criminal justice system: Something designed for one purpose ends up getting used for something else. As usual, it happened because people can't agree on what society wants to do with criminals to begin with.
Saturday, July 02, 2016
"Should a juvenile sex offender be locked up indefinitely?"
The question in the title of this post is the headline of this PBS Newshour segment, which is focused on Minnesota's experiences with indefinite commitment of sex offenders. Here is a segment of the segment:
Elizabeth Letourneau is one of the nation’s leading experts on juvenile sex offenders. She directs the Moore Center for the Prevention of Child Sexual Abuse at John Hopkins University. She says civilly committing juvenile sex offenders makes little sense, first because it’s incredibly costly. Minnesota spends about $125,000 per offender per year, which is roughly triple the cost of regular prison.
But, most importantly, she says it doesn’t make sense because juvenile offenders are likely not lifetime offenders. "Among youth who are adjudicated for a sexual offense, so they have been arrested, processed, 97 percent to 98 percent will not reoffend sexually. So, truly, the vast majority ... if they are caught committing a sexual offense, will not do it again."
Emily Piper is the commissioner of Minnesota’s Department of Human Services, which oversees the state’s sex offender program. She says only 4 percent of Minnesota’s registered sex offenders are currently civilly committed, and she argues the state is rightly incarcerating the most troubling of those....
In 2011, a class-action lawsuit was brought against the state by a group of offenders in Minnesota’s program, including Craig Bolte, arguing they were not getting any meaningful treatment and were instead being held indefinitely.
And, last year, federal district judge in St. Paul sided with them, saying that Minnesota’s sex offender program was unconstitutional, ruling “It’s a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”
The state has appealed the decision, and a ruling is expected this fall. In the meantime, state officials say they have already started making changes. Five offenders have been moved into less restrictive settings, and new reviews are being done of all offenders to determine who’s a potential candidate for release and who isn’t.
Even Dru Sjodin’s mother, Linda Walker, admits that maybe some juvenile cases should be reexamined, but she hopes that, in all its reforms, Minnesota will err on the side of caution before releasing anyone.
Wednesday, June 29, 2016
Sixth Circuit affirms way-below guideline five-year child porn sentence based in part on jury poll urging sentence even lower
A number of helpful readers made sure that, despite being on the road all day, I did not miss the remarkable Sixth Circuit panel decision today in US v. Collins, No. 15-3236 (6th Cir. June 29, 2016) (available here). I first blogged about this case here after initial sentencing, recounting these basic details via a news account:
A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.
Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.
Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.
But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.
Unhappy with this outcome, federal prosecutors appealed the sentence as unreasonable, but now has lost before a unanimous Sixth Circuit panel. The Court's relatively short opinion includes these passages:
The government also argues that the jury poll was an “impermissible factor” for the district judge to consider in crafting an appropriate sentence. Conatser, 514 F.3d at 520. We again disagree. Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence....
District courts also have the authority to “reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts.” United States v. Kamper, 748 F.3d 728, 741 (6th Cir. 2014). Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements. See United States v. Bistline (Bistline I), 665 F.3d 758, 762-64 (6th Cir. 2012) (finding that the district court “did not seriously attempt to refute” the judgments underlying the guidelines).
When establishing the Sentencing Commission, Congress directed it to take “the community view of the gravity of the offense” into account when crafting appropriate criminal sanctions. 28 U.S.C. § 994(c)(4). As reflected in his writing on the subject, and briefly in the sentencing hearing below, the district judge reasons that the Commission fell short of this directive. See Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 HARV. L. & POL'Y REV. 173, 185 (Winter 2010)....
Though we reiterate that juries lack “the tools necessary for the sentencing decision,” Martin, 390 F. App’x at 538, they can provide insight into the community’s view of the gravity of an offense. See Gwin, supra at 193-94; see also Ring v. Arizona, 536 U.S. 584, 615-16 (2002) (BREYER, J., concurring) (jurors “reflect more accurately the composition and experiences of the community as a whole” and are “better able to determine in the particular case the need for retribution”) (internal quotations and citations omitted). The jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.
June 29, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4)
Should more lenient treatment of alleged repeat Indiana University rapist garner even more national attention than Stanford swimmer sentencing?
The question in the title of this post is prompted by this remarkable new local story out of Indiana, headlined "Monroe County prosecutor frustrated in ex-IU student's plea deal in rape cases." Here are the basic troubling details:
The Monroe County Prosecutor’s Office admitted it was frustrated after a former IU student charged in two rape cases ended up spending one day in jail. John Enochs will serve one year of probation after pleading guilty to battery with moderate bodily injury as part of a plea agreement. Two rape charges against him were dismissed.
The most recent incident happened in April 2015. According to court documents, a woman told police she’d been raped at the Delta Tau Delta fraternity house but didn’t know her alleged attacker. She said she repeatedly told him to stop, but he held her down. Eventually she was able to leave the room and get away. Security video showed Enochs entering the room with the victim. She left 24 minutes later; health officials said she suffered a laceration to her genitals.
While that case was under investigation, police found a similar alleged rape from 2013. The woman involved in that case agreed to help investigators. DNA evidence and witness statements led them to Enochs.
In a statement Monday, the Monroe County Prosecutor’s Office said the case presented a “very unusual” set of circumstances; law prevented a jury in either case from learning about the other allegation if the cases went to trial.
Prosecutors also said there were “evidentiary” problems with both cases. In the oldest allegation, the one from 2013, witnesses couldn’t recall some important details because so much time had passed and they’d been drinking. Photographs also existed that contradicted “the assertion that the complaining witness was incapable of engaging in consensual activity shortly before the alleged assault.” In the more recent case, prosecutors said DNA evidence was problematic; prosecutors also said video before and after the alleged assault did “not support the assertion of a forcible rape.” They said that made it impossible for them to prove that Enochs caused the woman’s injury.
“This turn of events was frustrating for us as prosecutors, due to the fact that there were two complaints against the defendant. That fact is the reason we continued to pursue accountability on his part which led to this plea agreement,” Chief Deputy Prosecuting Attorney Robert Miller wrote in a statement. Miller said Enochs originally pleaded guilty to a felony; the battery charge was reduced to a misdemeanor at the court’s discretion....
Katharine Liell, who represented Encochs in the case, said Encochs was charged with crimes he didn’t commit. Liell pointed out that prosecutors dismissed both rape charges and blamed the lead investigators for presenting “false and misleading evidence” in the probable cause affidavit charging Encochs with rape. Liell called the charges “sensationalized and false,” adding that Enochs did indeed admit to a misdemeanor. Liell said he was “profoundly sorry for his lack of judgment.”
Because I can only infer various details about this case from this press report, I am deeply disinclined to "attack" the attorneys or the judge for their handling of this case. Still, it seems in this case we have allegations of repeat rapist essentially getting away with his crimes because he only ended up with a misdemeanor conviction and thus not only will not serve any prison time, but will not have to be on a sex offender registry or suffer any other lifetime collateral consequences that go with a serious felony conviction.
I fully understand why a "perfect storm" of factors turned the Brock Turner case into the national sentencing scandal of 2016. But, relatively speaking, the ultimate (in)justice that seems to have taken place in this case out of Indiana seems to be even more scandalous and likely ought to be of even bigger concern for those deeply troubled by the problems of sexual assaults on college campuses.
Thursday, June 23, 2016
California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:
Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.
"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."
Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.
The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.
Prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
Saturday, June 18, 2016
Jeannie Suk has this notable New Yorker commentary headlined "The Unintended Consequences Of The Stanford Rape-Case Recall." Here are excerpts:
Federal judges at least have lifetime tenure to insulate them from public pressure. For the vast majority of state judges in America, who are elected and who must fund-raise and campaign to get and retain their jobs, ignoring public opinion is impossible. The phenomenon of electing judges strikes many as antithetical to the ideals of an independent judiciary. Pamela Karlan, a Stanford Law School professor, has suggested that “fear of future electoral retaliation” may cause pernicious judicial bias. In fact, studies show that the prospect of a reëlection or retention campaign makes judges more punitive toward criminal defendants, and high-court judges more likely to affirm death sentences. Even more troubling, eight states provide a recall process for the public to remove a sitting judge before he or she stands for reëlection or retention. In California, all that is necessary for a recall election is a petition that follows a certain format and has enough signatures.
We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California. More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list....
Judge Persky’s explanation of his departure from the state guidelines included the statement that “a prison sentence would have a severe impact” on Turner. To many, this remark appeared to discount both the harm to the victim and the effects of imprisonment on people who were not formerly élite college students. Michele Dauber, a Stanford law professor and a family friend of the victim, is leading the campaign to force a recall election to replace Persky, stating, “We need judges who understand violence against women.”...
It is remarkable, to say the least, that sharp disagreement over a particular decision has ballooned into a widespread social movement to oust a judge. But as the historian Estelle B. Freedman noted in the Times, earlier this week, American feminists have twice succeeded in recalling state judges because of their handling of rape cases: in San Francisco in 1913 and in Madison, Wisconsin, in 1977. Those recall efforts coincided with the first- and second-wave feminist movements, while the current decade has brought intense student activism and government action to force schools to take campus sexual assault more seriously. The movement to recall Persky is an expression of outrage, not just about one case but about a broader failure to acknowledge violence against young women and about the class and race privilege afforded to white male defendants. Turner’s case is extraordinary not only because of the severity of the assault but because it occurred in public and was observed and stopped by two reliable witnesses. Without the two students who happened upon the crime, it is unlikely that the case would even have made it to the police, given that an estimated two-thirds of sexual assaults go unreported, and that the victim here had no memory of the event.
The petitioners and supporters of the victim have every right and reason to protest the sentence imposed by Persky. And because Persky is elected, and his electorate is empowered to recall him if it is unhappy with his job performance, a recall effort is a reasonable form for their protest to take. But the fact that it is a valid form of protest does not mean that we should be directing serious concerns about rape into a campaign to fire a judge in retaliation for an overly lenient criminal sentence. The current recall movement could have the effect of pressuring judges to play it safe by sentencing more harshly — and there is no reason to believe that will be true only in cases with white male rape defendants.
Nonwhite men are more likely than white men to be perceived as violent, predatory, or acting without consent, by complainants, police, prosecutors, witnesses, juries, and judges — particularly if a complainant is white. That bias translates into inequality at all levels of the criminal system, from reporting and arrest to conviction and sentencing. Of course, that bias is precisely what Turner’s victim’s allies intend to protest with their recall efforts. But as Paul Butler, a Georgetown law professor, wrote last week, in the Times, that effort could easily lead to harsher sentences all around, even in cases where giving someone a break is the right thing for a judge to do. “The people who would suffer most from this punitiveness would not be white boys at frat parties,” Butler argued, but rather black and Latino men, who make up a disproportionate sixty per cent of the country’s prisons and jails.
The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society. It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties. This recall movement could not only influence who is elected to judgeships and the decisions those judges make, it could also spur harsh new legislative measures. In the midst of our reckoning with decades-long ravages of the war on drugs, are we gearing up to have sexual assault take its place to fulfill our apparent appetite for outrage and punishment? The existing sex-offender registries, which cause convicted people to be reviled and ostracized long after their penalty, are ready-made to support that turn.
Prior related posts:
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
Wednesday, June 15, 2016
I am generally somewhat hesitant about lambasting a judge's sentencing decision when I have only limited information about the case, and I often wonder whether others' quick to critcize a particular decision have reviewed all the key evidence before going on the attack. Relatedly, I am uniquely interested in the views and criticisms of a sentening decision lodged by anyone who was intimately involved in the case, and thus I find distinctly noteworthy this new report about new criticisms of the controversial Brock Turner sentencing. The article is headlined "Juror slams judge in Stanford rape case, calls sentence 'a mockery' amid recall push," and here is how it gets started:
The judge who sentenced Stanford University swimmer Brock Turner to six months in jail for sexual assault is continuing to face criticism for his decision. The effort to recall Santa Clara County Superior Court Judge Aaron Persky has gained steam, with several political groups vowing to raise money for the campaign. Two veteran Democratic political consultants, Joe Trippi and John Shallman, decided Thursday to join the effort to force a recall election.
Then, one of the jurors who convicted Turner of sexual assault wrote a letter to Persky. The juror wrote of being “absolutely shocked and appalled” at the sentence.
“After the guilty verdict I expected that this case would serve as a very strong deterrent to on-campus assaults, but with the ridiculously lenient sentence that Brock Turner received, I am afraid that it makes a mockery of the whole trial and the ability of the justice system to protect victims of assault and rape,” the juror wrote to Persky. “Clearly there are few to no consequences for a rapist even if they are caught in the act of assaulting a defenseless, unconscious person,” the juror wrote in the letter, which was obtained by the Palo Alto Weekly [available here].
Prior related posts:
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"