Tuesday, March 20, 2018

Highlighting the Big Apple as a source for In Justice Today

My headline is a not-so-clever attempt to set up the fact that the latest two postings at the always great In Justice Today are focused on not-so-great criminal justice realities in New York.  Here are links to the two recent pieces with excerpts (and links from original): 

"NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids" by Guy Hamilton-Smith:

New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

"Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’" by Shaun King:

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

March 20, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, March 05, 2018

Making a fulsome case on the merits against sex offender registries

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress's delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline "The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal." Here are excerpts:

The Bureau of Justice Statistics reports that at least 95 percent of all state prisoners will be released from prison at some point. However, convicted sex-offenders almost exclusively face the vengeful, additional punishment of registration under the Sex Offender Registry and Notification Act (SORNA).

Generally, under SORNA, an individual who is required to register as a sex offender must register at least once a year; report any change of address within as little as three days; produce vehicle information, a recent photograph and a DNA sample; and abide by stringent residency restrictions, which can force individuals out of urban areas, away from family and into unemployment.

SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.....

The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.

Another element of due process known as “double jeopardy” appears in the Fifth Amendment and protects an individual from being prosecuted for the same offense twice. It also bars multiple punishments for the same crime. Individuals convicted of crimes who have faced incarceration and then must begin sex registry-reporting are certainly being punished repeatedly.

SORNA requirements punish ex-offenders by inflicting upon them tangible, secondary punishments, like the inability to qualify for housing and increased difficulties securing employment. These secondary punishments effectively banish ex-offenders to a modern leper colony by not only removing re-entry resources but also by affirmatively ostracizing those attempting to rebuild a life after incarceration.

In addition to violating double jeopardy, repeated punishments violate the Eighth Amendment by imposing cruel and unusual punishment. The government is prohibited from imposing a criminal sentence that is either vindictive or far too harsh for the crime committed. Incarceration is intended to be a punishment and a deterrence, so any subsequent punishment can only be vindictive. After incarceration, an ex-offender’s privacy is significantly diminished by the requirement to report one’s name, address, photo, employment status and provide a DNA sample.

Last fall, a federal judge found that the Colorado sex offender registry’s punitive impact outweighed any value it might have had in protecting the public and concluded that registration violates the prohibition against cruel and unusual punishment. As the judge specifically stated, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”

As Clarence Darrow famously said, “You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.” Protecting the constitutional rights of everyone, even those convicted of sex offenses, is of the upmost importance for protecting our freedom. Therefore, both legislators — by way of developing and amending laws — and judges — via hearing arguments and creating case law — must re-examine SORNA in order to preserve liberty and uphold the Constitution.

March 5, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (9)

SCOTUS grants cert on structural SORNA issue and Justice Sotomayor dissents in capital case with IAC issues

The Supreme Court has been mulling over a number of cases that would, if cert were granted, be of great interest to sentencing fans. But the Justices, via today's new SCOTUS order list, did not grant (or deny) cert on any blockbusters. Here is the SCOTUSblog accounting of what sentencing fans did get today:

The second grant is Gundy v. US, but only limited to the fourth question presented by the petition: whether Congress's delegation of power to the attorney general to issue regulations interpreting the Sex Offender Notification and Registration Act violates the nondelegation doctrine....

The non-delegation challenge to SORNA is (1) more plausible than most non-delegation challenges because of the criminal context; but (2) would be the first non-delegation challenge that has prevailed at the Court in a very long time. And it would blast a giant hole in SORNA.

Justice Sotomayor dissented from the denial of review in Wessinger v. Vannoy, a capital case involving an attorney's duties to conduct a mitigation investigation when the court has denied funds for expert assistance.

Justice Sotomayor's solo dissent in Wessinger ends this way:

The Court’s denial of certiorari here belies the “bedrock principle in our justice system” that a defendant has a right to effective assistance of trial counsel, and undermines the protections this Court has recognized are necessary to protect that right. Martinez, 566 U.S., at 12. Indeed, the investigation of mitigation evidence and its presentation at sentencing are crucial to maintaining the integrity of capital proceedings.  The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this Court’s precedent.  Yet, Wessinger will remain on death row without a jury ever considering the significant mitigation evidence that is now apparent. Because that outcome is contrary to precedent and deeply unjust and unfair, I dissent from the denial of certiorari.

March 5, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, February 11, 2018

California judge rejects state efforts to limit reach of new parole eligibility rules approved by voters via Proposition 57

As reported in this AP piece, "California must consider earlier parole for potentially thousands of sex offenders, maybe even those convicted of pimping children, a state judge said Friday." Here is more about a notable ruling about a notable effort to limit the reach of a notable ballot initiative:

Sacramento County Superior Court Judge Allen Sumner preliminarily ordered prison officials to rewrite part of the regulations for Proposition 57.  The 2016 ballot measure allows consideration of earlier parole for most state prison inmates, but Gov. Jerry Brown promised voters all sex offenders would be excluded.

That goes too far, Sumner said in rejecting Deputy Attorney General Maria Chan's argument that the ballot measure gave state officials broad discretion to exclude any class of offenders whose release might harm public safety. "If the voters had intended to exclude all registered sex offenders from early parole consideration under Proposition 57, they presumably would have said so," Sumner said.

He said the scope of exclusions should be narrowed to only those now serving time for a violent sex offense. And he said the Corrections Department must better define what falls into that category. The judge said those who already served their time for a sex crime, even a violent one, and now are imprisoned for a different crime should be eligible for early release.

The language in Prop. 57 "left way too much wiggle room," opening the door to Sumner's ruling, said Mark Zahner, chief executive of the California District Attorneys Association that opposed the initiative. "There's a great danger of truly violent people being released early and people who commit, in this case, sex offenses that involve violence being released early."

The Governor's Office declined comment. Corrections officials did not respond to repeated requests for comment or say whether they plan to appeal. They also did not provide an estimate of how many offenders might be affected.

The ruling Friday could allow earlier parole for more than half of the 20,000 sex offenders now serving time, said Janice Bellucci, a Sacramento attorney and president of California Reform Sex Offender Laws. Her lawsuit on behalf of sex offenders argued that the rules conflict with the ballot measure's language and voters' intent in approving Proposition 57. Bellucci argued the measure requires earlier parole consideration for any sex crime not on the state's narrow list of 23 violent felonies, which includes murder, kidnapping and forcible rape.

That could allow earlier parole for those convicted of raping a drugged or unconscious victim, intimately touching someone unlawfully restrained, incest, pimping a minor, indecent exposure and possessing child pornography. The judge said corrections officials can make the case for excluding those offenders as they rewrite the regulations, but Bellucci said she will sue again if officials go too far.

The full 18-page ruling discussed here is available at this link.  Here is a key paragraph from the opinion's conclusion: 

Under Proposition 57, “Any person convicted of a nonviolent felony offense . . . shall be eligible for parole consideration after completing the full term for his or her primary offense.”  CDCR adopted regulations defining the term “nonviolent offender” to exclude anyone required to register under section 290, regardless of their current commitment offense.  CDCR’s overbroad definition must thus be set aside.

February 11, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, February 05, 2018

Mass molester Larry Nassar gets another 40 to 125 years in his third and final sentencing

Though civil suits resulting from former sports doctor Larry Nassar's many crimes seem likely to go on for a very long time, today I believe all of the criminal cases against the bad doctor concluded with a final state sentencing.  This local article, headlined "Nassar gets another 40-125 years," starts its account of this latest sentencing this way:

Former Michigan State University doctor Larry Nassar was sentenced to another 40-125 years in prison for sexually molesting hundreds of young girls. Eaton County Circuit Court Judge Janice Cunningham handed down the sentence Monday. "I am not convinced that you believe what you did was wrong," Cunningham said. "Clearly you are in denial ... I do not believe there is a likelihood that you can be reformed."

Before he was sentenced, the disgraced doctor said he was sorry for his crimes during his last sentencing hearing Monday. "It's impossible to convey the depth and breadth of how sorry I am to each and everyone involved," he said. "The visions of your testimony will forever be present in my thoughts."

Since last month, more than 200 women spoke over nine days in two county court rooms about the impact the sexual abuse inflicted by Nassar has had on their lives. "You are a doctor and you took an oath to do no harm, but you harmed more than 250 young women," Cunningham also said Monday. "You will spend the rest of your life in prison, left with the memories of destroying your family and so many others around you."

Larissa Boyce — the first to tell a Michigan State University official about Nassar 20 years ago but was not believed — said Friday in a public statement that this moment cannot be forgotten. “This is a life-changing time in our society, in our culture and in our world,” Boyce said.

Prior related posts:

February 5, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Wednesday, January 31, 2018

Mass molester Larry Nassar in state court for his third and final sentencing

When a person has committed a whole lot of serious crimes, he may well face a whole lot of serious sentencings.  Former doctor Larry Nassar is the latest high-profile example of this reality, and this AP piece reports that he is today in Michigan state court for his third sentencing proceeding.  Here are detail about this final sentencing and some of the continuing buzz about his last state sentencing:

The final sentencing hearing began Wednesday for disgraced former sports doctor Larry Nassar, who will again be confronted by scores of victims as he faces another prison sentence for molesting gymnasts at an elite Michigan club run by an Olympic coach.

Judge Janice Cunningham has set aside several days for roughly 60 people who want to confront Nassar or have their statement read in court. The hearing could unfold much the same as a hearing last week in another county where a different judge allowed more than 150 women and girls to confront Nassar about his abuse. That hearing ended with Nassar getting sentenced to 40 to 175 years in prison, with the judge describing it as Nassar's "death warrant."

The practice of allowing accusers to speak even if they are not tied directly to a case has raised questions about fairness. But attorneys say the victim statements probably pose little risk on appeal, especially since Nassar pleaded guilty, agreed to allow the statements and is expected to get another long prison sentence as part of his deal with prosecutors. "If you get what you bargained for, then you really can't argue that you were prejudiced in any way," said Margaret Raben, former leader of a Michigan association of criminal defense attorneys.

It's not uncommon for prosecutors to introduce "aggravating" evidence at sentencing to support their request for a severe punishment. But the parade of victims offering emotional accounts of their abuse to the face of an abuser went well beyond the typical hearing. Raben said there was a "horrible dynamic" last week in Judge Rosemarie Aquilina's courtroom, even if the judge had the option to allow so many people to speak in a case that involved just seven victims.

"Her obvious delight was just off the wall," Raben said, referring to Aquilina's "death warrant" remark and others. "I am not defending Larry Nassar at all, but what I saw with her was a real abandonment of judicial demeanor. ... The process doesn't change because everybody hates the defendant. That is the absolute glory, or should be, of the American justice system."

A fellow Ingham County judge, William Collette, said Aquilina's handling of the hearing was "outrageous." Others, however, have praised her treatment of victims and their parents.

The case on Cunningham's docket Wednesday in Eaton County centers on Nassar's assaults at Twistars, a Lansing-area gymnastics club that was run by 2012 Olympic coach John Geddert. Nassar admits penetrating three girls with his hands when he was supposed to be treating them for injuries.

So far, 57 victims want to speak in court or submit statements. Attorney Mick Grewal said 11 of his clients have signed up, including some who were inspired by the 150-plus young women and girls who appeared in Aquilina's court. He called it a "cathartic experience." "Now they're at a point in their healing process where they want to confront Larry, and they want to show the world that they are survivors and they are strong and they are part of this movement," Grewal said. "It helps them through the healing process."

He said the Nassar cases are extraordinary in the number of victims who have come forward. "The only case that's out there that's even similar in stature is Penn State, and this is now six times as big as Penn State, maybe seven times," Grewal said, referring to boys who said they were sexually abused by assistant football coach Jerry Sandusky.

Prior related posts:

January 31, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, January 26, 2018

Still more notable commentary on judicial conduct in sentencing of mass molestor

Perhaps unsurprisingly, lots of folks are still discussing Larry Nassar's state sentencing (basics here), with a number of commentators taking issues with the judge's comments while imposing his sentence and others praising how the entire sentencing was handled.  Here is just a sampling of some of what has caught my eye on this front:

My own thoughts on this matter keep returning to the essential fact that Nassar's state sentencing was much more symbolism than substance from the very start given that he had already received a functional LWOP sentence in federal court AND the fundamentals of his state sentence were largely established by his plea bargain. In this context, I suppose it is not too surprising that so many folks are so caught up in the particulars of the symbolism of how the judge conducted this unique sentencing hearing and spoke sharply to the defendant. But I still find myself ultimately much more interested by and concerned about the work of sentencing judges when it really makes a substantive difference.

Prior related posts:

January 26, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11)

Wednesday, January 24, 2018

Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar

The nature of Larry Nassar's crimes and of his victims contributed to his state sentencing earlier today (basics here) garnering lots and lots of attention.  I suspect in days to come we may see continuing commentary about Nassar's crimes and their enduring consequences, and tonight I thought to highlight a few particulars already garnering attention.

First, certain comments made by the state judge at sentencing have prompted an array of reactions, and so I thought it useful to link here to a full transcript of the judge's full comments at sentencing.  I think it is fair to call everything about the Nassar case remarkable, and the judge's sentencing statement also merits that adjective.

Second, and speaking of the judge and her sentencing comments, over at Slate Mark Joseph Stern already has this notable commentary headlined "Larry Nassar’s Victims Deserved a Judge Like Rosemarie Aquilina."  The piece closes with these lines: "The result was impassioned and imperfect.  It was also what Larry Nassar deserved."

And third, this local article reports on a noteworthy consequence of Nassar's crimes: "Michigan State President Lou Anna Simon resigns hours after Nassar sentencing."  I hesitate calling the MSU Prez another victim of Nassar, but I do not hesitate predicting that Nassar's crimes will reverberate in many ways and in many areas for quite some time to come.

Prior related posts:

January 24, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9)

Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

As reported here by the AP, Larry Nassar after a lengthy state sentencing hearing "was sentenced Wednesday to 40 to 175 years in prison as the judge declared: 'I just signed your death warrant'."  Here is more from the AP:

The sentence capped a remarkable seven-day hearing in which scores of Larry Nassar's victims were able to confront him face to face in a Michigan courtroom. Judge Rosemarie Aquilina said Nassar's "decision to assault was precise, calculated, manipulative, devious, despicable."

"It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again. You have done nothing to control those urges and anywhere you walk, destruction will occur to those most vulnerable."

Nassar found competitive gymnastics to be a "perfect place" for his crimes because victims saw him as a "god" in the sport, a prosecutor said Wednesday, shortly before the former doctor was to be sentenced for years of molesting Olympic gymnasts and other young women. "It takes some kind of sick perversion to not only assault a child but to do so with her parent in the room," prosecutor Angela Povilaitis said. "To do so while a lineup of eager young gymnasts waited."

She described the "breadth and ripple" of Nassar's sexual abuse as "nearly infinite." "What does it say about our society that victims of sexual abuse have to hide their pain for years when they did nothing wrong? What does it say about our society when victims do come forward ... and are treated as liars until proven true?" Povilaitis said.

Nassar turned to the courtroom gallery to make a brief statement, saying that the accounts of more than 150 victims had "shaken me to my core." He said "no words" can describe how sorry he is for his crimes. "I will carry your words with me for the rest of my days" he said as many of his accusers wept....

Nassar, 54, pleaded guilty to assaulting seven people in the Lansing area, but the sentencing hearing has been open to anyone who said they were a victim. His accusers said he would use his ungloved hands to penetrate them, often without explanation, while they were on a table seeking help for various injuries.

The accusers, many of whom were children, said they trusted Nassar to care for them properly, were in denial about what was happening or were afraid to speak up. He sometimes used a sheet or his body to block the view of any parent in the room. "I'd been told during my entire gymnastics career to not question authority," a former elite gymnast, Isabell Hutchins, said Tuesday....

Nassar has already been sentenced to 60 years in federal prison for child pornography crimes. He is scheduled to be sentenced next week on more assault convictions in Eaton County, Michigan.

Though not made clear in this AP piece, I am inclined to presume this 40 to 175 year sentence is the maximum permitted under state law. I would be grateful to hear from any Michigan state sentencing experts as to whether this was a max sentence and also why a mass molestation such as this one produces a state sentence with a lower range that is shorter than the federal prison sentence Nassar already received for child porn offenses.

Prior related posts:

UPDATE A helpful commentor noted below that the 40-year minimum sentence imposed here was the maximum bottom-range term provided for in Nassar's state plea agreement.  And, of course, because Nassar would have to live well past 100 to even have a chance of completing the current federal sentence he is serving, the particulars of his state sentence are not really of any significant practical consequence.

January 24, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Wednesday, January 17, 2018

Taking a critical look at recent report on "Federal Prosecution of Commercial Sexual Exploitation of Children Cases"

Guy Hamilton-Smith has this notable new piece at In Justice Today discussing a new Bureau of Justice Statistics report. The BJS report, available here, is titled "Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013." Guy Hamilton-Smith's critical assessment, available here, is titled "New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children." Here is how the commentary starts and additional excerpts with a sentencing bite:

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses  —  such as sex trafficking  —  and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity....

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending.  Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst.  While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that "Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months."

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement.  More than ten images?  Enhancement.  Distribution, even unintentional distribution, as discussed above?  Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement.  Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutory maximum sentences.

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences.  As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory  —  that even possession of such images drives a market for child pornography.  The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course.  Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

January 17, 2018 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (5)

Saturday, January 13, 2018

Campaign to recall Brock Turner's sentencing judge turns in many signatures

As reported in this local article, headlined "Effort to recall Stanford rape case judge submits almost 100,000 signatures," a high-profile lenient sentence may soon be putting a California judge's job in jeopardy. Here are the details:

The campaign to recall a judge who issued what many considered a light sentence to a former Stanford swimmer convicted of sexual assault cleared its first hurdle Thursday.

Recall organizers, led by Stanford law Professor Michele Dauber, filed a petition and nearly 100,000 signatures with the Santa Clara County Registrar of Voters in San Jose to place a measure on the June ballot to recall Superior Court Judge Aaron Persky.

If successful, it would be the first recall of a California judge in 87 years.

In June 2016, Persky sentenced former Stanford swimmer Brock Turner to six months in jail after he was found guilty of sexually assaulting an unconscious woman by a dumpster outside of a fraternity party on the college campus, resulting in a national outcry that Turner received special treatment. Prosecutors had argued that Turner should spend six years in state prison, but Persky gave him six months in county jail. He ended up being released in three.

While Persky became a prominent public figure after the Turner decision, the recall campaign has attempted to demonstrate a pattern of judicial bias that extends beyond Turner’s case.... At a news conference Thursday morning, Dauber listed a series of cases in which she believed Persky’s handling of sexual assault cases had been too lenient, including a 2011 civil trial on the alleged gang rape of a 17-year-old high school girl by members of the De Anza Community College baseball team. Persky allowed defendants to show photos of the victim wearing a revealing outfit to the jury....

After serving half of his sentence, Turner was required to register as a sex offender after moving back home with his family in Ohio. He recently appealed his conviction, arguing that he didn’t receive a fair trial.

To qualify for June’s election, the Persky recall campaign was required to turn in 58,634 valid signatures by Feb. 2. Organizers submitted a petition with 94,518 signatures that filled 11 boxes outside of the Registrar of Voters office, which now has 30 days to verify them. “We are very confident that we are going to have thousands more than we need to qualify,” Dauber said.

Persky has tried several times to block the recall effort....

Persky based Turner’s jail sentence on a recommendation from the county probation department. The judge noted that prison would have “a severe impact” on the former Stanford swimmer. The petition to place the recall on the ballot is only the first step in the campaign to push out Persky, Dauber said. If the recall is placed on the ballot, voters also will be asked to select a candidate to fill Persky’s seat on the bench. Cindy Hendrickson, an assistant district attorney for Santa Clara County, is the only candidate to date who has filed papers.

On Thursday, Dauber framed the recall effort in historical context by describing the first successful recall effort in California history. “In 1913, the women’s clubs of San Francisco, much like we have done here, banded together to recall a judge named Charles Weller for lenient decisions on sexual assault,” she said.

Dauber also noted the national momentum of the current #MeToo movement. “Women are standing up and refusing to accept the normalization of harassment and abuse by privileged men, and the movement runs all the way from Hollywood to Silicon Valley to media to politics to the legal profession,” Dauber said, expressing support for Hendrickson.

Persky’s ruling — along with the publication of a gut-wrenching letter the victim read in court during Turner’s sentencing hearing — prompted former Vice President Joe Biden to write an open letter to the victim noting that she is a “warrior” who has been failed by many people and institutions.

In a number of prior posts about the Brock Turner case, I have noted concerns both about the lenient sentence he received and about the campaign to recall his judge. Here is just a sampling of the prior posts this case has generated:

January 13, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Tuesday, January 09, 2018

Making the case against juvenile sex offender registration requirements

Rebecca Fix has this new commentary that caught my eye under the headlined "Young Sex Offenders Shouldn’t Have to Register; It’s Ineffective and Hurts Everyone Around Them." The whole piece (and its many links) are worth checking out, and here is how it gets started:

Sex offender registration policies were initially developed for adults with sexual offenses, but have recently been extended to include youth with sexual offenses as well.  At first glance, sex offender registration and notification (hereafter referred to as SORN) may make us feel safer, produce relief knowing that these individuals are being punished.

However, many of us don’t realize that these practices don’t protect our children.  Required registration of and notification about youth with illegal sexual behavior, in particular, has resulted in serious economic and psychological burdens at multiple levels, affecting not only the youth who have to register (e.g., increase in suicidal ideation), but also their families (e.g., judgment from others, loss of job), neighbors (e.g., devaluation of home value) and communities (e.g., stress levels, potential changes in reputation).

Mental health providers and child advocates like myself and colleagues at the Moore Center for the Prevention of Child Sexual Abuse who have examined policies concerning sexual offending among youth know that SORN requirements stem from an ill-fitting classification system that has deleterious consequences.

January 9, 2018 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (3)

Thursday, January 04, 2018

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

January 4, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, December 27, 2017

Garden State perspective on sex offender castration ... for no obvious reason

This lengthy new local article from New Jersey, headlined "New Jersey child molesters won’t face castration threat any time soon," provides an example of how castration of sex offenders interests reporters even absent having an obvious reason to focus on the issue.  Here is how the article starts and some additional excerpts:

In a year filled with arrests for sexual crimes against child victims, there is a familiar refrain heard each time one of these arrests is announced.  “Castrate him,” is shouted from all corners of society and social media.

Almost 80 alleged child molesters or kiddie porn collectors were arrested this year by a regional task force.  None of those offenders, however, will ever have to face castration-style penalties if convicted in New Jersey Superior Court.  That’s because New Jersey, unlike a handful of states across America, lacks a law that would require certain sex offenders to be neutered or semi-neutered.

Removing a sex offender’s testicles or doping him up on testosterone-reducing drugs may sound harsh, but that is the law of the land in certain jurisdictions outside the Garden State. Several states across America have laws requiring certain child molesters to take so-called “chemical castration” hormonal drugs that curtail sexual desire by sharply reducing testosterone levels, but New Jersey state lawmakers have not seriously considered that idea since the turn of the century. Surgical castration — a medical procedure that physically removes a male’s testicles — is an option for certain Megan’s Law offenders in California who prefer to voluntarily undergo a permanent, surgical alternative to hormonal chemical treatment....

New Jersey politicians have concerns about the sexual exploitation of children — Republican Gov. Chris Christie on July 21 signed a bill sponsored by Sen. Linda Greenstein (D-Mercer/Middlesex) to strengthen New Jersey’s child pornography laws and establish additional penalties against leaders of child porn networks — but a politician has not introduced a castration bill in the state Legislature in over 20 years.

A state senator in 1996 wanted New Jersey to force male defendants convicted twice of aggravated sexual assault on a young child to receive chemical castration as punishment. Inspired by California’s example, former State Sen. Joseph L. Bubba (R-Passaic) introduced Senate Bill No. 1568 in the chamber on Oct. 3, 1996. He signed on as the primary sponsor of the bill that, if enacted, would have required chemical castration of certain sex offenders.  The bill was introduced in the New Jersey Senate and referred to the Senate Judiciary Committee, where it died without being acted upon. 

Bubba’s political career then quickly unraveled when he lost a GOP primary in June 1997.  No other politician since Bubba has introduced a chemical castration bill in the New Jersey Legislature.

December 27, 2017 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Tuesday, December 19, 2017

Notably lenient Nebraska sex offense sentence reversed based on notably questionable judicial comments

This local press report, headlined "Sentence of probation in Nebraska sexual assault case overturned; judge called 12-year-old girl the 'aggressor'," reports on an interesting state appellate court sentencing reversal.  Here are the basic details:

The Nebraska Court of Appeals has overturned a Kearney judge’s decision to put a man on probation for a felony sexual assault conviction.  In its ruling issued Tuesday morning, the Court of Appeals said Buffalo County District Judge Bill Wright considered forbidden and irrelevant factors when he decided to place Taylor Welty-Hackett on probation.

In February, Wright placed Welty-Hackett on four years of intensive supervised probation for attempted felony first-degree sexual assault of a 12-year-old girl on Aug. 1, 2015, in Kearney.  The charge was punishable by up to 20 years in prison.

The Court of Appeals ordered Welty-Hackett’s case be sent back to Buffalo County, where he will be resentenced by a different judge.  A hearing date hasn’t been set.  Buffalo County Attorney Shawn Eatherton had argued that Welty-Hackett’s sentence was too lenient.  During the Feb. 23 sentencing hearing, Wright called Welty-Hackett’s victim the "aggressor" in the case saying, “She made the advances.”

Wright also went on to tell Welty-Hackett that he “screwed up big time, but I’ve got to find some way of bringing balance back into the system, given the nature of what’s been occurring in this community.”

The Court of Appeals said Wright’s statement about the promiscuity of teenage girls and the need to bring “balance” into sentencing sexual offenders went beyond consideration of the facts in the case.  “If the sentencing judge (Wright) went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI (pre-sentence investigation report) which clearly justified the probationary sentences. ... Such failure caused the trial judge’s brief mention of the defendant’s small stature to become the focus of attention, when in reality it was but a minor point,” the Court of Appeals ruled.

The full opinion in Nebraska v. Welty-Hackett, No. A-17-239 (Neb. Ct. App. Dec. 19, 2017) (available here), makes for an interesting read.  Here are some of its concluding paragraphs:

Unlike in State v. Thompson, the sentencing judge’s comments in this case were more than just a “brief mention” of factors not relevant to imposing sentence.  The court’s discussion of the general promiscuity of teenage girls and the need to bring balance into the system was fairly substantial.  Further, the comments had nothing to do with this particular defendant, in contrast to State v. Thompson.  We recognize that the trial judge in this case indicated he had reviewed the PSR before the sentencing hearing.  While the information contained in the PSR may well have supported the probationary sentence imposed, we cannot determine from the judge’s comments at sentencing how much weight was given to the permissible and relevant sentencing factors compared to the impermissible and irrelevant factors.  We note, however, the court’s final comments before imposing sentence that Welty was getting the benefit of the court’s desire to “find some way of bringing some balance back into the system, given the nature of what’s been occurring in this community.”

Because it appears that the trial court’s reliance upon the impermissible and irrelevant sentence factors largely influenced his decision to impose probation, we find it necessary to vacate the sentence imposed and remand for resentencing before a different judge.

December 19, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Sunday, December 17, 2017

Lawyer asks law profs: "Looking for a chance to persuade the courts that man-mins are unconstitutional?"

Earlier this year I started to correspond with Caleb Mason concerning his effort to preserve a sentence imposed below a federal mandatory minimum in the face of a government appeal.  I suggested to Caleb that he write up an account of the case and his pitch for amicus help.  Here is the pitch:

Join my case as amici!  I was appointed by the Ninth Circuit in a CJA (Criminal Justice Act) case to defend a below-man-min sentence against the Government's appeal. I argued in my brief that man-mins are straight-up unconstitutional under Booker.  The vast majority of man-min cases out there involve a district judge reluctantly imposing the sentence with an opinion saying how much he or she hates doing so.  The defendant appeals, but there's not much for the Court of Appeals to do.  My case is the opposite -- it's the rare one in which the judge actually imposed a sentence below the man-min, and we're asking the Court of Appeals to affirm it. Judge Manuel Real, who at age 95 is on full active status (he won't even take senior status), has the courage of his convictions when it comes to man-mins. 

In this case (a CP case with a small number of images, no other bad conduct, a very sympathetic defendant history, and a demonstrated commitment to rehabilitation), Judge Real explained that 48 months was enough custody time, despite the 60-month man-min, because of lifetime s/r.   My brief (which can be downloaded below) argues that mandatory minimums are unconstitutional under Booker. Here is the main issue statement:

Issue 1: Statutory mandatory minimum sentences are unconstitutional.

Caselaw of this Court is to the contrary, but Mr. Lavinsky preserves his arguments for review by an en banc panel of this Court and by the Supreme Court. Statutory mandatory minimum sentences are unconstitutional because they violate the constitutional imperative of separation of powers.  Fashioning an individual sentence based on the facts of an individual case is a quintessential judicial power.  The Court's decision in United States v. Booker, 543 U.S. 220 (2005), should apply equally to statutory mandatory minimums as to mandatory Sentencing Guidelines, because the animating principle in Booker is separation of powers, and the mandatory guidelines that Booker rendered advisory had, per Mistretta v. United States, 488 U.S. 361 (1989), the same legislative authority as statutory provisions in the United States Code.  Additionally, the history of sentencing practices in the United States shows that the proliferation of statutory mandatory minimum sentences is an anomaly, and is inconsistent with both historical practice and historical understanding of the separation of powers.

For Booker fans (I should note that I went to the Booker oral argument; I wasn't yet a member of the Supreme Court bar, so I arrived at 11 p.m. the night before and waited on the sidewalk all night like an animal...), this case is a nice, clean opportunity to make the argument that Doug made immediately after Booker, and that has long been apparent to those of us who have been trying to understand what's happening in federal sentencing over the last decade: Booker is about preserving the inherent constitutional power of judges.  It's not about juries. It's never been about juries.  It could have been about juries, if Justice Ginsburg had stuck with the merits majority for the remedial opinion. But she didn't, and we have a remedial majority that rejects out of hand the "jury factfinding" option for sentencing -- which would have been not just the right answer but arguably the only answer if the merits opinion were really animated by the jury trial right.  (And of course, Booker applies to defendants pleading guilty as well, which it wouldn't if it was a purely jury-trial right.)

Anyway, my argument is simple.  Booker held mandatory guidelines to be unconstitutional.  Under Mistretta, each mandatory guideline was nothing more or less than a little man-min, with the same force of law as a statutory man-min written directly in Title 18.  Thus, if the guidelines had to be made advisory to preserve their constitutionality, then so should man-mins.  Read the brief (available below) -- I think this is a decent and reasonably original argument.

Second, I argue that to the extent that Booker invalidating the SRA (in particular its mandatory aspects), it restored judicial power to the pre-SRA status quo which, I argue, included an understood background power (whether inherent or under pre-SRA statutory law) to sentence below a specified minimum.

I was thinking that we'd get a quick memorandum from the panel, and then gear up for an en banc petition and cert petition.  But the panel just set the case for argument on February 16.  So that'll be fun.  And it'd be great if one or more of the judges indicated that he or she thinks the full court ought to consider this issue.

I've been bugging Doug about putting together an academic amicus brief on the legal reasons why courts should hold man-mins unconstitutional.  I know there are a hundred people out there who can articulate the arguments better than me, and who probably have clever arguments I haven't thought of.  So to you eggheads that think you have opinions about sentencing but never set foot in a courtroom: This is your chance!  Do it!  Write something someone will read!  And a court, no less.

Someone besides me needs to organize and write the amicus brief.  If anyone is willing to do that, I'll help with contacting signers, and finding counsel for amici in the Ninth Circuit and Supreme Court.  Please contact me [cmason @ brownwhitelaw.com] with any questions.

Download 2017.06.27 Lavinsky- Answering Brief

December 17, 2017 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

Tuesday, December 12, 2017

"Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry"

The title of this post is the title of this notable new In Justice commentary authored by Guy Hamilton-Smith. I quoted the title in full because it is all worthy of reflection, as is the entire commentary that follows. Here is an excerpt:

The sex offender is the modern-day witch: the registry, the contemporary pyre. A scarlet letter for our technocratic era, forcing people to register as sex offenders “is what puritan judges would’ve done to Hester Prynne had laptops been available.” While undoubtedly there are those on the registry who have been convicted of blood curdling crimes, the designation is also extended to those who have been convicted of far more banal ones.

Reformers urgently need to draw public attention to the cruel and unnecessarily harsh treatment afforded to sex offenders within the justice system. Sex offender registries are rapidly proliferating and becoming an increasingly popular back-end tool for feeding people into the carceral state.

In understanding the reasons why sex offenders ought to be a higher priority for mainstream justice reform advocates, a grasp of the evolution and operation of the sex offender registry is critical....

The number of people listed on a sex offender registry in the United States has grown from slightly more than 500,000 in 2005 to 874,725 today. Research has found that sex offender registries have a disproportionate impact on minorities.

While registries and their attendant requirements are sold as enhancing public safety, research consistently indicates that they are exceedingly bad at this goal. One explanation is because, contrary to Smith’s baseless assertion and what most believe, people on the registry have one of the lowest rates of re-offending out of any class of criminal....

As a piece of criminal justice machinery brought to bear on people, the registry can best be thought of as a two-headed beast: a 1–2 punch of distinct effects.

The first head is the direct impact on the lives of those on the registry itself. With no Due Process or Ex Post Facto brakes to slow down the juggernaut, it has become weaponized.  A far cry from its origins as a simple list of purported perverts, it has morphed into a web of prison-without-bars that would make Franz Kafka blush. The oppressiveness, breadth, and lack of due process inherent in these modern day sex offender registries led a federal court in Colorado to label it a cruel and unusual punishment; a legal conclusion virtually unheard of outside of the cloistered world of death penalty litigation.

The second head is the tangle of legal requirements for those on the list: a knot of vague, illogical, ever-expanding, and sometimes contradictory laws that even lawyers, judges, and law enforcement have difficulty interpreting.  Examples can include strict time limits on reporting even minor changes in information (such as online accounts) or residence, residency restrictions, or even the clothing one wears. States promise swift felony prosecutions if individuals do not observe hyper-technical compliance with these requirements.

Unsurprisingly, it is exceedingly easy to run afoul of the requirements, keeping those that do trapped in a cycle of legislatively-crafted “crime” that can be tantamount to a de facto life sentence. “Failure to register” is fast becoming the crime of choice for returning those on the registry to prison.  In 2008 in Minnesota, failure to register charges became the most common reason sex offenders were returned to prison.  Between 2000 to 2016, Texas saw a more than 700% increase in FTR arrests, from 252 in 2005 to 1,497 in 2017. To borrow a phrase from computer programming, this is not some kind of criminal justice bug. It is a feature.

December 12, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11)

Friday, December 08, 2017

Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses

The typical defendants sentenced in federal court for child porn offense have not been convicted of contact offenses and have strong arguments for being sentenced below the severe federal sentencing guideline ranges.  But former USA Gymnastics doctor Larry Nassar is not your typical federal child porn offender and, as reported here, he did not convince a judge he should get a below guideline sentence. Indeed, he got the maxed out in every possible way at his sentencing in federal court yesterday:

Larry Nassar, the 54-year-old former MSU and USA Gymnastics doctor whose work took him to multiple Olympic Games, received an effective life sentence when a federal judge on Thursday sentenced him to 60 years in federal prison on child pornography charges.

"He has demonstrated that he should never again have access to children," U.S. District Judge Janet Neff said as she imposed a sentence that went beyond guidelines calling for 22 to 27 years in prison. He was sentenced to 20 years on each of three counts to which he's admitted. The sentences are to be served consecutively.

Neff also ordered that his federal time would be served consecutively to state sentences for sexual assault to which he's also admitted. He will be sentenced next month on those charges.The courtroom was filled to capacity. Among those in attendance were several victims of Nassar's admitted sexual assault, their relatives and their attorneys. Several victims said after the sentencing they were still trying to process their feelings, but it was a step toward justice.

“I was blown away with what the judge did today, and I thought it was very fitting," Larissa Boyce, who first raised concerns about Nassar to an MSU coach in 1997, said at a news conference after the hearing. "I can’t thank her enough for the things that she said."

In court filings last week, Nassar's attorneys asked Neff to show leniency, saying the doctor had worked toward redemption by helping fellow inmates and taking Bible classes since his arrest nearly a year ago. Nassar, speaking in a barely audible voice from the courtroom podium on Thursday, told Neff he’d long battled an addiction he likened to alcoholism or drug addiction. His shame kept him from asking for help, he said. He said he hoped his crimes would educate people about the problem to prevent others from being hurt in the future....

But Neff said Nassar’s crimes hurt so many people on so many levels. That includes the unnamed children in the pictures who feel assaulted every day knowing someone somewhere could be viewing their bodies, she said. It includes the women Nassar assaulted who now struggle to trust doctors and struggle with their own sense of self-worth.

The judge said she'd sentenced defendants in child pornography cases for a decade but Nassar was "unique" in the sheer volume of pornography he'd collected and the brazen way he assaulted women during medical appointments with parents in the room. "You have to wonder whether he felt he was omnipotent, whether he felt he was getting away with something so cleverly," Neff said as several victims and family members in the room started to cry. "I am a mom of two daughters. I cannot imagine that kind of situation."

Federal prosecutors had argued for the maximum 60 years, saying Nassar "poses an immense risk to the community" and quoting one victim who said he "will not hesitate to reoffend" if he's ever freed. Neff agreed.

Nassar pleaded guilty in July to three federal charges after investigators said he possessed at least 37,000 graphic videos and images of child pornography, including images of prepubescent children engaged in sex acts. He also pleaded guilty to obstruction of justice for trying to destroy the evidence. The U.S. Attorney's Office said Nassar paid to have his work laptop wiped clean and threw away hard drives containing the pornography. Investigators were only able to obtain those hard drives at Nassar's Holt property because the garbage truck happened to be running late that day, according to court records.

Some of the videos appeared to show Nassar assaulting young girls in a pool, investigators said. As part of a deal with federal prosecutors to obtain his guilty plea, prosecutors agreed they would not charge him with alleged sexual exploitation of children in relation to four reported victims. Thursday's sentencing ends one of three criminal cases against Nassar. He's also pleaded guilty to sexual assault charges in both Ingham and Eaton counties and could get to up to life in prison in those cases when he's sentenced next month.

Prior related post:

December 8, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, November 27, 2017

Record sex-trafficking sentence, 472 years of imprisonment, imposed in Colorado court

This local article, headlined "‘The tough ones are us women:' Colorado pimp gets 472 year sentence," report on a sentencing in Colorado that seems to be record-setting. Here are the details:

A man convicted of sexually exploiting women as a pimp will spend the rest of his life – and then some – in prison. In a sentencing hearing [last] Tuesday afternoon, Arapahoe County Judge Peter F. Michaelson sentenced the man found guilty of running a child prostitution ring to 472 years in prison. That is more than four times the minimum required sentence - and the largest sentence brought down for a human trafficking case in the country.

Brock Franklin was indicted in 2015 by a grand jury for allegedly using drugs and violence to control young girls, often forcing them into lewd acts as part of a child sex trafficking ring. Four others have already been sentenced for their involvement in the human trafficking ring.

Prosecutors said Franklin preyed on young women and girls who were vulnerable. In his trial, a jury heard from eight of the nine victims in the case. “Damage isn’t lessened because of where someone came from or where someone did not come from,” an attorney for the Arapahoe County District Attorney’s Office said in court Tuesday.

In a packed courtroom Tuesday afternoon, prosecutors read two letters from Franklin’s victims. “Every morning I wake up I have to remind myself the defendant will no longer be able to hurt me,” the first letter began. The victim, identified only as “DY,” wrote to the court about the PTSD, anxiety, and depression she suffers because of Franklin’s actions....

In March of this year, Franklin went on trial for 34 counts including pimping a child, patronizing a child prostitute, kidnapping and assault. He was found guilty on 30 counts including human trafficking, sexual exploitation of a child, child prostitution, kidnapping, pimping of a child, and racketeering. He was acquitted of several charges including distributing marijuana and assault with a deadly weapon....

The minimum sentence would have been 96 years in prison, which is what Franklin’s defense team requested, reminding the judge Franklin had not been convicted of any violent crimes. Janet Drake, with the Attorney General’s Office, asked the judge for a 616 year sentence on behalf of the people of the state of Colorado. “This is not a minimum sentence type of case,” Drake said.

Franklin’s defense team argued a 616 year sentence would not be appropriate. His attorneys told the judge a 96 year to life sentence would be ample punishment, since Franklin would likely never live to see his parole eligibility even with that sentence. The defense also said Franklin’s troubled past, including being homeless at age five, should be considered in his sentencing.

I am not sure what I find more remarkable, the fact that the judge here imposed a sentence of nearly half a millennium or the fact that this sentence of 472 years was a full 144 years less than the term requested by prosecutors.

November 27, 2017 in Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Friday, November 24, 2017

"What Rape Reform Needs: More Convictions, Less Punishment"

The title of this post is the headline of this recent interesting commentary authored by Kari Hong over at The Crime Report. Here are excerpts: 

In what is being called the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. This no doubt is overdue, but in the context of rape, believing the victim will not be enough. Three reforms are essential to how we convict and punish rapists.

First, the way states currently define the crime of rape does not target the conduct of unwanted sex. In the United States, rape was initially defined by unwanted sex accompanied by an element of force. The proof of force was and continues to be a high bar to meet, usually requiring threats, physical violence, actual injury, or weapons....

The first needed reform to the definition of the crime of rape, then, is to abandon the definitions of rape used by 42 states. Rape should not be limited to unwanted sex when there is also force or only arising in specific contexts. Rather, all states should simply define rape as only eight currently do: sex without the consent of the other person. Full stop.

Second, unlike homicide and theft offenses, rape law has not benefited from having liability arise from more sophisticated mental states that define the crime....

The second essential reform, then, is establishing a new crime of “rape by malice,” a crime that criminalizes both those who knew — or deliberately did not care to know — if their advances were consented to. Unwanted sex arises from multiple motivations. A mens rea for rape should be flexible and responsive enough to criminalize as much unwanted sex as possible without criminalizing lawful or wanted sex.  Other crimes such as homicide have expansive definitions to capture all killings made by the predators, the fools, and the careless.  A new crime of rape by malice would do the same.

Third, these proposed reforms to the redefinition of rape would lead to more convictions. But convicting more rapists under our current criminal justice system should not be welcomed. On paper, 19 states have respective maximum terms of 99 years, 100 years, and life sentences. And 12 states begin at 10 years.

Although only six states and the federal government even compile data on the number and lengths of sentences, where data is available, the range in actual sentences for rape was from eight to 30 years.  In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows.  These numbers should be alarming.  Whereas 40 percent of people convicted of all felonies will be punished with prison terms, about 90 percent of all rapists will receive a prison sentence, and a very lengthy one at that.

In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows.  In 35 comparable countries, the vast majority impose prison terms that do not exceed five years. This short sentence does not at all communicate that the crime was not heinous, the offender not depraved, or the victim does not merit justice....

If the goal is to reintegrate into society convicted rapists who will not reoffend, the third essential reform is to impose shorter sentences for rapists.  It is shorter sentences and actual treatment that succeed over calls to simply lock them up.

November 24, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (15)

Wednesday, November 22, 2017

Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?

The question in the title of this post is prompted by this new CNN article headlined "Ex-USA Gymnastics doctor apologizes, pleads guilty to criminal sexual conduct." Here are the basics from the article, with the last quoted sentence and link of particular note for sentencing fans:

Larry Nassar, the former acclaimed USA Gymnastics team doctor, pleaded guilty Wednesday to seven counts of first-degree criminal sexual conduct and admitted in a Michigan court to using his position to sexually abuse underage girls.  Three of the charges applied to victims under 13, and three applied to victims 13 to 15 years old.  Other charges were dismissed or reduced as part of a plea agreement.  All 125 victims who reported assaults to Michigan State Police will be allowed to give victim impact statements at Nassar's sentencing in January, according to the plea deal.

Nassar made a short statement apologizing and saying he was hopeful the community could move forward. "For all those involved, I'm so horribly sorry that this was like a match that turned into a forest fire out of control," he said.  "I have no animosity toward anyone. I just want healing. ... We need to move forward in a sense of growth and healing and I pray (for) that."

Judge Rosemarie Aquilina said Nassar violated the trust of his patients, and she praised the victims for coming forward.... Dozens of women, including several gold-medal winning members of the famed "Fierce Five" team of American gymnasts, have accused Nassar of sexual misconduct in his role as the USA Gymnastics doctor....

In all, Nassar had been charged with 22 counts of first-degree criminal sexual conduct and 11 counts of third-degree criminal sexual conduct at the state level, Megan Hawthorne, deputy press secretary for state Attorney General Bill Schuette, told CNN in July.  Several of the first-degree charges pertained to victims under 13, and all of the state-level charges involve former family friends, gymnasts and patients of Nassar, Hawthorne said.

Separately, Nassar is also awaiting sentencing on federal charges of receiving child pornography, possessing child pornography and a charge that he hid and destroyed evidence in the case.  That hearing is scheduled for Monday.

The linked article at the end here details that Nassar's federal plea from July was to a series of federal counts with a "combined maximum of 60 years of imprisonment." For a host of reasons, I would expect the calculated guideline range for Nassar on his federal child porn charges to be life imprisonment, and I would predict that he will get a richly deserved statutory maximum sentence of 60 years imprisonment at his upcoming federal sentencing.  And because Nassar is in his mid-50s, this means he likely will be getting and serving a functional life sentence in federal court before he is even sentenced in Michigan on the state sex charges that he pleaded guilty to today.

The fact that Nassar likely will already be serving a functional federal life term before being sentenced on state charges does not, in my mind, make state proceedings unimportant or inconsequential, especially given that his victims may only have a chance to have their voices directly heard during the state proceedings.  But I asked the question in the title of this post because I wondered if anyone has a particularized view in a case like this as to whether it matters, symbolically or practically, just how a defendant who commits so many terrible crimes is subject to sentencing and prison service.

November 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Thursday, November 09, 2017

Making the case against International Megan's Law

Guy Hamilton-Smith has this new commentary at In Justice Today headlined "We’re Putting Sex Offender Stamps on Passports. Here’s Why It Won’t Curb Sex Tourism & Trafficking." Here are excerpts:

On October 30th, the State Department announced that passports of people who are required to register as sex offenders because of an offense involving a minor will be marked with a “unique identifier” that will read: "The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l)."

The law which occasions this requirement, International Megan’s Law (IML), was enacted in 2016 under President Obama.  In addition to the identifier requirement, IML allows for existing passports of those on the registry to be revoked, and imposes criminal penalties on them for failure to provide the government with advance notice of international travel plans.  While U.S. law already provided for destination countries to be put on notice regarding the travel plans of those on the sex offender registry, IML ratchets things up by requiring the person to carry the government’s “identifier” with them wherever they go abroad....

While IML and similar laws are packaged as a way to prevent sexual violence and exploitation, they do little to nothing to meet those objectives because they make assumptions about sexual offending that are incorrect.  For instance, people who have been convicted of sexual offenses generally have one of the lowest rates of re-offense out of any class of criminal. Dozens of studies have consistently confirmed this finding, including research from the U.S. Department of Justice.  Along similar lines, a 2008 time-series analysis of 170,000 unique sex offenses found that 95.9% of the time, the perpetrator was a first-time offender.  In other words, nearly all reported sexual offending is being perpetrated by people who are not on a registry.

In light of the evidence, the argument that IML and other sex offense policies misdirect resources and attention from actual causes and obfuscate actual solutions is compelling.  Experts such as John Hopkins professor and Director of the Moore Center for the Prevention of Child Sexual Abuse Elizabeth Letourneau have argued that, instead of focusing our attention and resources on sex offenders and criminal justice, we ought to focus on education and prevention efforts....

This conclusion is impelled with equal force in the context of international travel.  The U.S. Government Accountability Office and State Department quietly admitted that there is no mass exodus of people on the registry traveling to sex tourism destinations to engage in rape and child molestation: they identified three cases over a five-year period where a person on the registry was convicted for a sexual offense overseas.  To put that number in perspective, there are presently more than 800,000 people on a sex offender registry in the United States in 2017.

IML is more than simply ineffective at accomplishing what its authors have intended.  As commentators have observed, the marking of “a basic badge of citizenship” with a proverbial Scarlet Letter is nearly unprecedented in history.  The freedom of movement, including the right to leave one’s own country, is a basic and fundamental human right outlined in Article 13 of the Universal Declaration of Human Rights.  Historically, the state marking the travel and civil documents of despised groups was only a prologue to further encroachments on fundamental rights.

As recent years have demonstrated, sex offenders have become a proving ground for law and policy that the public would (and should) otherwise find abhorrent.  IML, and its attendant marking of the sine qua non of international travel documents, is just the latest high-profile example.  By misdirecting attention and resources away from actual causes and solutions, policies like IML obfuscate real solutions to the problems presented by sex tourism, trafficking, violence, and exploitation, and reinforce a narrative that is wholly divorced from facts.  Because of this, policies like IML will only ultimately serve to perpetuate the very harms that they seek to prevent.

November 9, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (14)

Thursday, November 02, 2017

Sex offender registration laws meet Apprendi procedural rights in new Pennsylvania ruling

A helpful reader altered me to an interesting new ruling from appellate court in the Commonwealth of Pennsylvania, Commonwealth v. Butler, NO. J-A21024-17 (Pa. Supp. Ct. App. Oct. 31, 2017) (available here). Folks concerned about the reach of sex offender registration laws and fans of the Supreme Court's Apprendi line of jurisprudence will both want to check out this opinion.  Here is how it starts and a key part of the ruling:

Appellant, Joseph Dean Butler, appeals from the judgment of sentence entered on August 4, 2016, as made final by the denial of his post-sentence motion on August 10, 2016.  In this case, we are constrained by our Supreme Court’s recent decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), to hold that 42 Pa.C.S.A. § 9799.24(e)(3), a portion of the Sexual Offender Registration and Notification Act’s (“SORNA’s”) framework for designating a convicted defendant a Sexually Violent Predator (“SVP”), violates the federal and state constitutions. As such, we are compelled to reverse the trial court’s July 25, 2016 order finding that Appellant is an SVP and we remand for the sole purpose of having the trial court issue the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s registration requirements....

Apprendi and Alleyne apply to all types of punishment, not just imprisonment.  See S. Union Co. v. United States, 567 U.S. 343, 346-360 (2012).  Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.  See Commonwealth v. Lee, 935 A.2d 865, 880 (Pa. 2007)....

We recognize that our Supreme Court did not consider the ramifications of its decision in Muniz with respect to individuals designated as SVPs for crimes committed after SORNA’s effective date.  Nonetheless, our Supreme Court’s holding that registration requirements under SORNA constitute a form of criminal punishment is dispositive of the issue presented in this case.  In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.  Section 9799.24(e)(3) identifies the trial court as the finder of fact in all instances and specifies clear and convincing evidence as the burden of proof required to designate a convicted defendant as an SVP.  Such a statutory scheme in the criminal context cannot withstand constitutional scrutiny.  Accordingly, we are constrained to hold that section 9799.24(e)(3) is unconstitutional and Appellant’s judgment of sentence, to the extent it required him to register as an SVP for life, was illegal.

As a fan of Apprendi rights who has long been concerned that courts sometimes work too hard to limit their logical reach, I am pleased to see this state court come to a seemingly sound conclusion in a controversial setting.  In addition, I get a kick out of imagining, if now asked what case applied Apprendi rights to the SORNA setting, saying "the Butler did it."

November 2, 2017 in Blakely in the States, Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Tuesday, October 31, 2017

You be the state judge: what sentence for autistic man whose first convictions resulted from years of fondling young girl?

Perhaps because we recently have been discussing mandatory minimum sentences for aggravated sexual offenses in my Criminal Law class, I was intrigued by this sentencing story out of the state courts in Kansas.  The piece is headlined "Judge to weigh input before sentencing child molester, including numerous letters supporting him," and here are the basics that set up the question in the title of this post:

In August a jury convicted James M. Fletcher, 35, of Lawrence, of five counts of aggravated indecent liberties with a child, for repeatedly fondling a girl over the course of more than two years, starting when she was 11. Under sentencing guidelines, even though he has no other criminal history, Fletcher faces up to life in prison with no possibility of parole for at least 25 years, plus lifetime registration and supervision if he were to be paroled.

Fletcher’s sentencing hearing was Monday, but a ruling was delayed until Nov. 9. Judge Peggy Kittel took under advisement a request from Fletcher’s attorneys to give him a lighter sentence than what the guidelines require. Kittel said she wanted time to weigh her decision “due to the length of sentence Mr. Fletcher is facing.”

His situation is unusual, Kittel said.  “What makes this case so hard is that Mr. Fletcher has no criminal history, yet is facing a lifetime sentence,” Kittel said.

The numerous letters of support from family, friends, neighbors and co-workers are “impressive,” Kittel said. Fletcher’s co-workers lauded him as a capable electrical engineer, intelligent and even “brilliant,” she said.  “And yet a jury found him guilty of betraying the trust of (the victim),” the judge said. “…He stands convicted of something, really, ethically and morally wrong.”

More than three dozen people attended Monday’s hearing.  That included the victim, who also testified at the trial, but most were supporters of Fletcher. None spoke, and neither did Fletcher other than yes and no answers to the judge, with his head otherwise bowed. Fletcher, who has been jailed since his conviction, appeared in shackles and inmate clothing. The judge did, through prosecutors, receive and read a letter from the victim with a picture that she drew, but the letter was not read aloud nor the picture displayed in court. The judge also referenced the many letters in Fletcher’s support that she received earlier.

Fletcher’s attorneys, Sarah Swain and Cooper Overstreet, emphasized his lack of criminal history, his strong support system — pointing to Fletcher’s wife, parents, relatives and friends in the audience — his model behavior while out on bond prior to his conviction and his proactivity in seeking counseling for what was described in trial as a sexual attraction to the teenage body type. “That’s a very rare thing,” Swain said. “These can only be positive steps, steps in the right direction.”

Swain also added that, prior to legislation known as Jessica’s Law, the crimes of which Fletcher was convicted would have carried a substantially lighter sentence. That law, in part, increased penalties for certain sex crimes against children. Defense attorneys requested a total sentence for Fletcher of two and a half years, or 29 and a half months on each count, running concurrently.

Prosecutor Mark Simpson said the defense's arguments were not compelling enough to depart from sentencing guidelines. In fact, Simpson said some of those same points made Fletcher’s crimes even worse. “She trusted him,” Simpson said of the victim. “He was able to have access to her in a way that she could not have been more vulnerable.”

A psychological evaluation of Fletcher concluded that he would not be able to “groom” a child because he had autism, Simpson said, but that diagnoses only came when Fletcher was 34 and seemed to contradict descriptions of him in the numerous letters of support. The same analysis concluded that Fletcher intellectualized and rationalized behavior, limiting the ability of any treatment to be effective, Simpson said.

Simpson said the crimes occurred in a house under the same roof as several of Fletcher’s relatives, who at one point even suggested that his “cuddling” was inappropriate. Simpson said Fletcher orchestrated the abuse in part by trying to convince the girl she was only dreaming it. “This was not one bad decision,” Simpson said. “This was ongoing — years of carefully planned abuse by the defendant.”

Prosecutors are requesting a sentence of life in prison for Fletcher.  Simpson said that if Fletcher were paroled after 25 years, he would have served the equivalent of five years of prison for each count. "That does not seem like an inappropriately long sentence to me," he said.

Fletcher was charged in Douglas County District Court in September 2015 with one count of aggravated indecent liberties with a child under 14, with four more counts added in May 2016.  Charges indicate Fletcher molested the girl from December 2012 through January 2015, when the victim was 13.  The victim told the jury that numerous times when she stayed at Fletcher’s house in Lawrence, he fondled her bare breasts under her T-shirt at night. She said sometimes she was awakened by the action but that she pretended to be asleep, and that afterward she felt “scared,” “confused” and initially passed off the encounters as dreams “to give myself a reason to not have to tell anybody.”

The girl said no one else saw the alleged molestation and that she never told anyone until February 2015, after a confrontation between Fletcher and her mother, where Fletcher told her mother he was sexually attracted to teens and worried he would develop an attraction to the girl.

This kind of case is the sort that, in my view, showcases why sentencing decision-making can be so challenging for judges and why modern mass incarceration in a consequences of so many choices by so many players in the criminal justice system.  As the article reveals, the severity of the sentence here appears to be the product of, inter alia, the legislature increasing punishments under Jessica's law, prosecutors bringing multiple charges, the defendant contesting those charges at trial, and the operation of state sentencing guidelines.  And still, it appears, the sentencing judge has authority to impose a sentence as low as only 2.5 years in prison or as long as a mandatory 25 years in prison.  If/when judges regularly max out sentences in these kinds of tough cases, prison populations will always be large.

This case also serves as a notable example of how many different ways one can characterize offense conduct and offender characteristics.  Is this case properly and usefully labelled a violent offense?  Is it properly and usefully labelled a first or a repeat offense?  Is this the worst kind of sex offense because of the age of the victim and the duration of the activity or would the label repeat child rape not fairly characterize the the criminal activity.  And is the defendant here clearly autistic?  Does that matter?  Is he at high risk to reoffend if he only serves 2.5 years in prison?  Might be be at higher risk to reoffend if he were sentenced to a longer prison term? 

October 31, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Monday, October 23, 2017

"Is There a ‘Rational’ Punishment for My Rapist?"

The title of this post is the title of this powerful personal article authored by Amber Rose Carlson.  I recommend the piece in full, and I hesitate to reprint excerpts for fear of diluting the potency of the entire piece.  But this excerpt perhaps will help prompt folks to click through to read the full piece:

“Imagine your rapist had been found guilty and sentenced in court. What would you want his sentence to be?” This was the question asked to me in January 2016 by my therapist during a session of eye movement desensitization and reprocessing therapy (E.M.D.R.) — a treatment that researchers tout as one of the best remedies for severe trauma and post-traumatic stress disorder.

I was raped repeatedly during a three-year span from age 13 to 16. I was also subject to physical and emotional abuse during that time. I’ve since undergone years of traditional talk and group therapy with trauma specialists, and I am more healed today than I ever thought possible.  Still, recovering from trauma is a serious endeavor, and I hoped for more healing....

I’m not a proponent of the death penalty primarily because the flaws in our criminal justice system are egregious and increasingly well-documented. The thought experiment’s framing, however, circumvented my usual concerns about unjust sanctions. I know what my rapist did to me, so I know he is guilty. Worries about the inhumanity of capital punishment were also blunted in part because this was purely hypothetical and in part because of the inhumanity he exhibited those long years with his penchant for violence.

Although the death sentence seemed wholly appropriate, I still considered how I would feel if a judge gave my rapist a less severe punishment: a natural life sentence — a life sentence with no chance for parole without a successful appeal.  In this scenario, my feelings were just as clear: I would be slightly disappointed, but I would still feel mostly satisfied.  Anything less than a death or natural life sentence, I knew, would seem inadequate....

IN FEBRUARY 2016 — only weeks after the thought experiments with my therapist — the philosopher Jennifer Lackey published an opinion piece in The Stone. In the article, she uses her experience teaching philosophy to inmates to argue for the irrationality of natural life sentences.  Lackey bases her argument against natural life sentences on two reasonable claims: (1) people (criminals, specifically) can and do change in profoundly transformative ways, and (2) we cannot know the future.

For Lackey, the fact that we have good statistical evidence that criminals can and do change is especially problematic given our vast epistemic limitations regarding the future. “Natural life sentences,” she wrote, “say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.” Citing the possibility of prisoner transformation, Lackey then puts her question about rationality directly: “How is it rational,” she asks, “to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?”...

I read Lackey’s article very soon after the thought experiments with my therapist. I noticed that Lackey’s argument easily applied to the death penalty, and I realized that the sentences I desired for my rapist were precisely the ones Lackey condemns as irrational.  Since nothing in her argument prevented me from applying her logic to my own desires, I had to wonder if her argument also concluded that I was irrational for desiring permanent punishments.  If it is irrational for the state to prescribe a permanent punishment given our epistemic limitations and prisoners’ likelihood for change, wouldn’t it be similarly irrational for victims to ignore these considerations?

There are, of course, crucial differences between victim’s desires and punishments carried out by the state. While sometimes the criminal justice system considers the wishes of victims and their families, the criminal justice system’s central aim is to protect the interests of the state and the community.  This aim does not always coincide with the interests or wishes of the victim.  Admittedly, there are often very good reasons for the state to ignore the wishes of victims.  But my concern is less about what the state should do in practice and more about what arguments that prioritize transformation say about victims who desire permanent punishments.

Here I will be blunt: it matters very little to me whether my rapist is transformed at some point in his life. It matters to me only to the extent that I will readily agree that it would be better if he became the sort of person who did not inflict violence upon others.  I would be very happy hearing that no other women would be harmed by him. But in terms of the punishment that he deserves?  Transformation does not matter to me.  And this is not irrational: There are many carefully considered reasons one might want a natural life sentence for perpetrators of egregious and irrevocable harm.

Desiring death or a natural life sentence for those who inflict traumatic violence is a rational response because whether or not my particular rapist transforms is irrelevant to whether or not I will ever have the chance to be the sort of person I might have been.  His transformation is irrelevant to whether or not I will be able to live the sort of life I could have were it not for the injustice done to me. I desire a death or natural life sentence for my rapist because that is what seems appropriate given the amount of damage he wrought in my life....

Although my attitude is in no way representative of all victims, epistemic arguments that prioritize criminal transformation must contend with the implication that they can be used to paint trauma victims irrational when they desire retribution.  It’s certainly important to advocate for prisoners who are wrongly incarcerated and for those who were victims of the overzealous war on crime era.  The injustices in our criminal justice system are too numerous and too serious to ignore. But criminal justice reform should not be so myopic that it compounds trauma survivors’ victimization.  Those who manage to survive traumatic crimes have enough to battle without arguments that undermine their rational considerations. Advocates for criminal justice reform can, and should, do better.

October 23, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (18)

Friday, October 20, 2017

Relying on Packingham, Federal judge strikes down Kentucky limit on sex offender internet access

As reported in this local piece, "Kentucky’s registered sex offenders have the constitutional right to use Facebook, Twitter and other online social media, a federal judge ruled Friday." Here is more on a ruling that seems like a pretty easy application of the Supreme Court's work in Packingham v. North Carolina earlier this year:

Ruling in a lawsuit brought by a Lexington child pornography defendant identified only as “John Doe,” U.S. District Judge Gregory Van Tatenhove struck down Kentucky’s sweeping restrictions on Internet access for registered sex offenders.

“This is a very important decision,” said Scott White, a Lexington attorney who represented Doe. “The laws effectively deprived anyone on the sex offender registry of access to the most effective forms of communication that we have today. It was a complete suppression of speech.”

One law prohibited sex offenders from using social networking websites or instant messaging or chat rooms that potentially could be “accessible” to children — which is to say, much of the Internet. The other law required sex offenders to keep their probation or parole officers updated on all of their email addresses and various online identities.

Van Tatenhove cited a unanimous decision by the U.S. Supreme Court in June that struck down a similar North Carolina ban on social media for sex offenders, in part because so many civic institutions — from elected officials to news media — are now tied into social media.

For example, the Herald-Leader’s Kentucky.com website would be off-limits to sex offenders under the state’s ban because it has a comments section open to the public, Van Tatenhove wrote.

Kentucky’s law “burdens substantially more speech than necessary to further the commonwealth’s legitimate interests in protecting children from sexual abuse solicited via the Internet,” Van Tatenhove wrote.

“Indeed, rather than prohibiting a certain type of conduct that is narrowly tailored to prevent child abuse, the statute prevents Mr. Doe and others similarly situated from accessing what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,” he wrote.

October 20, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Sunday, October 15, 2017

"Why kids don’t belong on sex offender registry"

The title of this post is the headline of this recent op-ed authored by Nicole Pittman. Here is how it starts:

California took an important step toward ending the abusive practice of putting kids on sex offender registries when Gov. Jerry Brown signed Senate Bill 384, which allows juveniles to petition for their removal after five or 10 years.

When California became the first state to register children as sex offenders in 1986, there was little known about children who commit sexual offenses. At that time, treating them the same as adults seemed sensible. Today, we have research that tells us that putting them on registries does not prevent future child sexual abuse and can diminish public safety.

Roughly 200,000 people on sex offender registries — including more than 3,500 in California — went on as kids, some for serious crimes but many others for playing doctor, streaking or teenage romances.

Sex offender registration laws stigmatize and isolate the very children they were meant to protect, ensuring their youthful indiscretions follow them into adulthood. Names, photos, and addresses are often made public, leading to vigilante violence, stigmatization, and severe psychological harm. One in five attempt suicide; too many succeed. There’s also now a strong body of evidence demonstrating that very few youth commit more sexual crimes.

October 15, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

Sunday, October 08, 2017

New California law limits reach of registry for lower-level sex offenders

As reported in this local article, headlined "California will soon end lifetime registration of some sex offenders under bill signed by Gov. Jerry Brown," some significant changes are now in the works for the sex offender registry in the Golden State.  Here are the details:

Thousands of Californians will be allowed to take their names off the state’s registry of sex offenders as a result of action Friday by Gov. Jerry Brown.  Brown signed legislation that, when it takes effect Jan. 1, will end lifetime listings for lower-level offenders judged to be at little risk of committing new crimes.

The measure was introduced at the request of Los Angeles County Dist. Atty. Jackie Lacey and other law enforcement officials who said the registry, which has grown to more than 105,000 names, is less useful to detectives investigating new sex crimes because it is so bulky.

“California's sex offender registry is broken, which undermines public safety,” said Sen. Scott Wiener (D-San Francisco), who introduced the bill.  “SB 384 refocuses the sex offender registry on high-risk offenders and treats low-level offenders more fairly.”

The registry currently requires law enforcement officials to spend hours on paperwork for annual evaluations of every offender, including those who are low risk and have not committed a crime for decades, Wiener said.

Brown declined to comment Friday, but his office referred to a statement put out last month. “SB 384 proposes thoughtful and balanced reforms that allow prosecutors and law enforcement to focus their resources on tracking sex offenders who pose a real risk to public safety, rather than burying officers in paperwork that has little public benefit,” said Ali Bay, a spokeswoman for the governor, last month.

The measure was opposed by many Republican lawmakers and Erin Runnion, who in 2002 founded the Joyful Child Foundation, an Orange County advocacy group for victims, after the abduction, molestation and murder of her 5-year-old daughter, Samantha.  Runnion said parents should be able to check a comprehensive registry to see if a potential teacher, youth league coach or babysitter for their children has ever been convicted of a sex crime.

California is one of only four states that require lifetime registration of sex offenders. The others are Alabama, South Carolina and Florida.

The new law signed by the governor creates a tiered registry, with high-risk offenders on the registry for life and others able to petition to be removed after either 10 or 20 years without re-offending, depending on the offense.  Offenses for which registrants can be removed from the list after 20 years include include rape by deception and lewd and lascivious behavior with a child under 14.

Offenders who petition for removal after 10 or 20 years will be assessed by a judge — with input from the local district attorney — who can grant or deny the petition.

October 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9)

Monday, October 02, 2017

First big SCOTUS order list has lots of big "cert denied" decisions in big sentencing cases

In prior posts here and here and here, I flagged a couple of commentaries that had flagged Supreme Court cert petitions to watch with the start of a new SCOTUS Term.  A lot of folks have been paying particular attention to two sex offender cases, Karsjens v. Piper (concerning the constitutionality of Minnesota Sex Offender Program), and Snyder v. Does (concerning retroactive application of Michigan's sex offender registry). 

This morning, the Supreme Court released this 75-page order list in which it denied cert on both of these closely-watched cases.  The order list also reveals SCOTUS also denied cert in a number of other cases of likely interest to sentencing fans, such as various cases concerning the application of the Eighth Amendment limit on LWOP juve sentences set out in Graham and Miller.  As detailed in this post last week, the Supreme Court already added a few criminal cases to its docket as it got back to work for the Term.  But none of the new cases it has taken up are likely blockbusters or possibly as consequential as the cases it now has officially decided not to review. 

For a variety of reasons, I am not too surprised by these denials of cert.  Despite my own wishful thinking that the addition of Justice Gorsuch might juice the parts of the docket I find most exciting, I am largely expecting a relatively quiet Term on the sentencing front.  That all said, hope springs eternal, and hope for some exciting grants might be renewed when the fine folks at SCOTUSblog figure out which cases are missing from this new order list and become hot prospects as "relisted" petitions.

October 2, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, September 27, 2017

"Will SCOTUS Let Fear of Sex Offenders Trump Justice?"

The title of this post is the headline of this new Reason commentary by Jacob Sullum spotlighting two cases I have tracked on this blog as they have made their way up to the Justices. Here is how the piece starts and ends:

According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives.  Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions.

Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms.  Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom....

Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws.  The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter."....

The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump traditional concerns about due process and just punishment.  By hearing these cases, it can begin to repair the damage it has done to those principles.

September 27, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20)

Monday, September 25, 2017

Anthony Weiner given 21 months in federal prison after his plea to "transferring obscene material to a minor"

Anthony Weiner was scheduled to be sentenced at 10am this morning in the Southern District of New York federal courtroom, and apparently US District Judge Denise Cote did not need very long to figure out what sentence she thought fitting.  This AP piece provides a blow-by-blow, and here are excerpts:

A prosecutor has urged a judge in New York City to sentence Anthony Weiner to a significant prison sentence to end his “tragic cycle” of sexting.

Assistant U.S. Attorney Amanda Kramer told a Manhattan federal court judge Tuesday that Weiner on three occasions in 2016 asked a 15-year-old girl to display her naked body online and to perform for him. The prosecutor noted that sexting had already ruined Weiner’s congressional career and spoiled his run for mayor of New York City before he began interacting with the teenager. Kramer said Weiner should go to prison for between 21 months and 27 months....

Anthony Weiner called his crime his “rock bottom” as he spoke just before a judge in New York City sentences him for his sexting crime. Weiner fought back tears and occasionally cried Monday as he read from a written statement on a page he held in front of him in Manhattan federal court. He said he was “a very sick man for a very long time.” He asked to be spared from prison.

The Democrat’s lawyer, Arlo Devlin-Brown, had asked that Weiner serve no prison time....

Anthony Weiner has been sentenced to 21 months in prison for sexting with a 15-year-old girl in a case that may have cost Hillary Clinton’s the presidency.... Anthony Weiner must report to prison by Nov. 6 to begin serving his 21-month sentence for sexting with a 15-year-old girl.

As his sentence was announced Monday, the former Democratic congressman from New York dropped his head into his hand and wept, then stared straight ahead.  After the hearing ended and Judge Denise Cote left the bench, he sat in his seat for several minutes, continuing to cry.  Weiner was also fined $10,000.  After his sentence is served, he must undergo internet monitoring and must have no contact with his victim. He must also enroll in a sex-offender treatment program.  

Before announcing the sentence, Cote said there was “no evidence of deviant interest in teenagers or minors” on Weiner’s part.  She also said he is finally receiving effective treatment for what she said has been described as “sexual hyperactivity.”

 Prior related posts:

September 25, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

Thursday, September 21, 2017

Federal prosecutors say Anthony Weiner merits years in prison for his online sexual offense

As reported in this AP piece, headlined "Government: Prison fits Weiner's sex crime on teen victim," federal prosecutors have filed their sentencing recommendation in the Anthony Weiner case. Here are the details:

Former U.S. Rep. Anthony Weiner is more than a serial digital philanderer — he's a danger to the public who deserves two years in prison for encouraging a 15-year-old girl to engage in online sex acts, prosecutors told a judge Wednesday. A Manhattan judge is scheduled to sentence the New York Democrat on Monday for transferring obscene material to a minor.

The government urged the judge to put Weiner's claims of a therapeutic awakening in a context of a man who made similar claims after embarrassing, widely publicized interactions with adult women before encountering the teenager online in January 2016. Prosecutors said his conduct "suggests a dangerous level of denial and lack of self-control."

"This is not merely a 'sexting' case," prosecutors wrote. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger. ... Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.' Weiner's criminal conduct was very serious, and the sentence imposed should reflect that seriousness."

Weiner, 53, said in a submission last week that he's undergoing treatment and is profoundly sorry for subjecting the North Carolina high school student to what his lawyers called his "deep sickness." Prosecutors attacked some of Weiner's arguments for seeking leniency and noted his full awareness beforehand of his crime, citing his co-sponsorship in January 2007 of a bill to require sex offenders to register their email and instant message addresses with the National Sex Offender Registry....

The government said Weiner's "widely-reported prior scandals" were not criminal in nature and did not involve minors but should be considered at sentencing because they reveal a familiar pattern. "He initially denied his conduct; he suffered personal and professional consequences; he publicly apologized and claimed reform. Yet, he has, on multiple occasions, continued to engage in the very conduct he swore off, progressing from that which is self-destructive to that which is also destructive to a teenage girl," prosecutors said.  They added: "Weiner's demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation."

Defense lawyers had portrayed the girl as an aggressor, saying she wanted to generate material for a book and possibly influence the presidential election. Prosecutors responded that Weiner should be sentenced for what he did, and his victim's motives should not influence his punishment. A defense lawyer declined to comment Wednesday.

In a plea bargain, Weiner has agreed not to appeal any sentence between 21 and 27 months.  Prosecutors said the sentence should fall within that span, and they noted that Probation Office authorities had recommended a 27-month prison term.

Prior related posts:

September 21, 2017 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (10)

Wednesday, September 20, 2017

"Does barring sex offenders from church violate RFRA?"

The title of this post is the title of this interesting new article in the Indiana Lawyer discussing interesting litigation working through the Indiana courts. Here is how the piece gets started:

Shortly after the controversial Religious Freedom Restoration Act went into effect in Indiana in 2015, the unlawful entry by a serious sex offender statute, which prohibits certain sex offenders from accessing school property, also became law. Now, those two statutes are at odds with each other as the Indiana Court of Appeals decides whether an interpretation of the statute that prohibits three men from going to church constitutes a RFRA violation.

Under the unlawful entry by a serious sex offender statute, Indiana Code 35-42-4-14, offenders convicted of certain sex offenses cannot knowingly or intentionally enter school property without committing a Level 6 felony. The Boone County sheriff determined that statute meant sex offenders in the county, including John Does 1, 2 and 3, could not attend church if their churches offered programs for children at least 3 years old who are not yet in kindergarten. The Boone Superior Court agreed, determining that anytime churches offer such programs, they are considered “school property,” and, thus, are unavailable to the John Does.

But because each of their churches offer children’s programming simultaneously or nearly simultaneously with adult services or Bible studies, the three men told the Indiana Court of Appeals during oral arguments in the case of John Doe, et al. v. The Boone County Prosecutor, et al., 06A01-1612-PL-02741, the sheriff’s letter effectively prohibits them from attending church at any time. The appellate case turns on two central issues that divided counsel for the state and the offenders: whether churches can be considered “school property” and whether the prohibition against the Does attending church violates their rights under RFRA.

September 20, 2017 in Collateral consequences, Offender Characteristics, Reentry and community supervision, Religion, Sex Offender Sentencing | Permalink | Comments (4)

Wednesday, September 13, 2017

"Brock Turner: Sorting Through the Noise"

The title of this post is the title of this notable paper recent posted to SSRN authored by Michael Vitiello. Here is the abstract:

This article begins with a quick test. The author asks his readers to spend a few moments reacting to “Brock Turner.” In response, no doubt, many think, “Stanford rapist,” “white privilege,” “special treatment for an elite college athlete,” and perhaps, “illegal sentence."  Certainly, that reaction is not surprising, given racial bias in sentencing and special treatment for elite college athletes.

The public response to Judge Aaron Persky’s sentence was quite negative even before Stanford Law Professor Michele Landis Dauber, a family friend of the victim, began a recall effort. The recall efforts have kept the case in the public’s eye.  While some members of the public and profession have spoken out against the recall, it seems to be on pace to get on the ballot in the fall of this year.

As troubling as Turner’s sentence is for many observers, issues posed by a judicial recall are quite distinct.  The article challenges the media for its role in inflaming public opinion about the case.  While the sentence seems far too short in light of Turner’s conduct, an examination of California sentencing criteria, as well as the probation report that Judge Persky relied on in determining Turner’s sentence, makes the case more complicated than widely reported in the media.  Even assuming that one disagrees with Judge Persky’s sentence, the article argues that California has led the nation in over reliance on long prison sentences, the result of all-too-familiar-get-tough-on-crime rhetoric. That has led the state to spend unnecessary billions of dollars warehousing offenders who do not represent a serious public safety risk.  The article concludes that judicial recall will result in unnecessary additional years of imprisonment for criminal defendants because judges, consciously or unconsciously, may fear for their livelihood if vocal members of the public deem their sentences too lenient.

September 13, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14)

Tuesday, September 12, 2017

New op-ed and op-doc from New York Times takes on "A ‘Frightening’ Myth About Sex Offenders"

David Feige has a new op-ed and a short video documentary unpacking and attacking the notion that sex offender recidivism rates are extraordinarily high.  This op-ed is headlined "When Junk Science About Sex Offenders Infects the Supreme Court," and this op-doc is titled "A ‘Frightening’ Myth About Sex Offenders."  Here is how the op-ed starts and ends:

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans.  Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.”  The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake.  The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release.  In the 24 years it has existed, not a single “patient” has ever been fully released.  There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness.  In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal.  They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.”  The problem is this: The 80 percent recidivism rate is an entirely invented number....

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear.  The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record.  More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study.  Simple decency and perhaps more important, intellectual honesty demands better.

A few prior recent related posts:

September 12, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Wednesday, September 06, 2017

Two of the latest remarkable variations on sex offender panics

These two headlines and stories about concerns about sex offenders caught my eye this afternoon:

I find both of these article both stunning and sad, and the bill discussed in the second article would seem, if I understand it right, to raise some serious constitutional issues.

September 6, 2017 in Collateral consequences, Sex Offender Sentencing | Permalink | Comments (8)

Friday, September 01, 2017

Federal district judge finds Colorado's Sex Offense Registration Act, as applied, amounts to unconstitutional punishment

A couple of helpful readers made sure I did not miss a notable extended opinion concerning application of Colorado's sex offender registration laws. The opinion in Millard v. Rankin, No. 1:13-cv-02406 (D. Colo. Aug. 31, 2017), which can be downloaded below, starts and ends this way:

Plaintiffs are registered sex offenders under the Colorado Sex Offender Registration Act (“SORA”), C.R.S. §§ 16-22-101, et seq. In this civil action brought pursuant to 42 U.S.C. § 1983 they seek declaratory and injunctive relief, claiming that continuing enforcement of the requirements of SORA against them violates their rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendant is the Director of the Colorado Bureau of Investigation (“CBI”), the state agency responsible for maintaining the centralized registry of sex offenders and providing information on a state web site....

Based on the foregoing, it is ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiff Arturo Vega, violates procedural due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates substantive due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and it is

FURTHER ORDERED that Plaintiffs as prevailing parties shall be entitled to an award reasonable attorney’s fees as part of the costs, to be determined by the Court pursuant to 42 U.S.C. § 1988(b).

Download 20170831 Millard Ruling re Sex Offender Registry

September 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11)

Sunday, August 20, 2017

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

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

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

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

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

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

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

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

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

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

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

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

August 20, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (14)

Sunday, August 13, 2017

Making a case against sex offender registries

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, August 09, 2017

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Tuesday, August 01, 2017

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

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

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

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

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

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

Wednesday, July 19, 2017

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

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

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

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

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

Saturday, July 08, 2017

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

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

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

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

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

Saturday, July 01, 2017

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

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

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

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

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

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

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

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

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

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

Wednesday, June 21, 2017

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 20, 2017

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

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

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

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

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

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

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

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

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

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

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

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

Monday, June 19, 2017

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

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

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

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

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

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

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

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

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

Friday, June 02, 2017

Considering the unique housing challenges for aging sex offenders

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 01, 2017

Lots of notable new reporting and commentary from The Marshall Project

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 30, 2017

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

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

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

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

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

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

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

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

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

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

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