Wednesday, February 18, 2015

Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable

Regular readers who follow federal sentencing in child porn cases likely recall that the Sixth Circuit and an Ohio-based federal district judge got into a sentencing tug-of-war over the sentencing of child porn downloader Richard Bistline not long ago.  And even irregular readers should know that circuits, if they stick with it, will always win these kinds wars.  More proof of that reality come from another similar Sixth Circuit case decided today, US v. Robinson, No. 13-230806 (6th Cir. Feb. 18, 2015) (available here), which starts this way: 

The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  Defendant’s previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (“Robinson I”).  On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served.  The district court also lengthened the period of supervised release and imposed additional conditions of release.  The government’s second appeal raises the question of whether this second sentence is substantively reasonable.

For the reasons set forth below, we VACATE Defendant’s sentence and REMAND the case for reassignment and resentencing. 

Prior related posts concerning similar case:

February 18, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

AP report details that, functionally, California kills many more sex offenders than murderers

Formally, California sends many more murderers to its death row than any other state and it has more condemned capital prisoners than two dozen other US death penalty states combined.  But California has only managed to actually execute fourteen of those sentenced to die and nobody has been executed by the state in nearly a decade.  Meanwhile, as this new AP report details, over the last eight years, while California has not moved forward with an execution of a single condemned murderer, a total of 78 sex offenders have been slaughtered inside California's prisons.  Here are the basics:

California state prisoners are killed at a rate that is double the national average — and sex offenders ... account for a disproportionate number of victims, according to an Associated Press analysis of corrections records.

Male sex offenders made up about 15 percent of the prison population but accounted for nearly 30 percent of homicide victims, the AP found in cataloging all 78 killings that corrections officials reported since 2007, when they started releasing slain inmates' identities and crimes.

The deaths — 23 out of 78 — come despite the state's creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.

In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.

Corrections officials blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members....

The problem is most acute with sex offenders. Last fall, the corrections department's inspector general reported that so many homicides occurred in the "increasingly violent" special housing units reserved for vulnerable inmates that the department could no longer assume that inmates there could peacefully co-exist. The report looked at 11 homicide cases that were closed in the first half of 2014 and found that 10 victims were sensitive-needs inmates. Using corrections records, the AP found that eight of them were sex offenders.

For a variety of reasons, most states have special facilities incorporated into their "death row," and condemned prisoners on death row are often eager to be well behaved in the hope of increasing their odds of getting out from under a death sentences eventually. Consequently, it can often be much safer for certain prisoners to be condemned and confined to death than to be in the general population. And this new AP report reinforces my sense that a serious California criminal likely would lead a more peaceful and safe life in prison if and when he murders and gets condemned to death than if he just commits a sex offense. (In addition to being a disturbing practical reality, these dynamics might perhaps prompt and incentivize a "rational rapist" in California to murder one or more his victims in order to ensure he can potentially avoid the dangers of the general prison population and live out his life peacefully pursuing appeal after appeal while safe and secure on death row.)

February 18, 2015 in Death Penalty Reforms, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (19) | TrackBack

Monday, February 16, 2015

Senate unanimously passes child porn restitution bill to fix Paroline problems

As report in this article, last week the U.S. Senate finally passed a bill to restructure the standards and procedures for restitution awards for victims of child porn downloading offenses.  This bill made it through the full Senate a little less than year after the Supreme Court issued a split decision on this matter in the Paroline case.  Here are the basics of the response by Congress:

A bill named for two women whose childhood images were turned into heinous pornography was handily passed in the Senate on Wednesday. The Amy and Vicky Child Pornography Victim Restitution Improvement Act was approved by a 98-0 vote.

The measure gives hope to victims that they will finally be able to win major compensation from any single person who illegally viewed, made or distributed their images. Victims of child pornography and other sexual exploitation “ought to have access to full restitution from any single perpetrator for their losses,” said Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican.

The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.

The bill responds to a 2014 Supreme Court 5-4 ruling in Paroline v. United States that said people convicted of viewing, making or distributing child pornography should be ordered to pay a nontrivial amount of restitution — but it should fit the scale of the offense....

The Paroline case stemmed from a lawsuit filed by a woman known as “Amy Unknown” against Doyle R. Paroline of Texas, who was convicted of having two images of her in his child pornography collection. When the 5th U.S. Circuit Court of Appeals ruled in Amy’s favor and ordered Paroline to pay $3.4 million in damages to her, Paroline asked the Supreme Court to review his case. Paroline’s court-appointed attorney said after they won last year that he would contest any restitution award against his client.

Amy, now an adult, was sexually assaulted by her uncle when she was about 9 years old. The uncle put pictures of her rape online, and those images have been shared by pedophiles worldwide. “Vicky” is the pseudonym of another victim, whose father raped her as a child and took “orders” from men to make videos of her being bound and sodomized.

I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders.

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

February 16, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, February 11, 2015

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:

A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.

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

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

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

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

In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."

Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.

Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...

Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.

Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.

February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders.  Here is how the majority opinion concludes: 

We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution.  Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution.  We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.

Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:

When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....

The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.

 

Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.

February 11, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, January 21, 2015

Should a court hearing be required anytime a registered sex offender seeks entry to a public school?

The question in the title of this post is prompted by this notable article from Virginia headlined "ACLU questions new sex offender bill." Here are the details:

Their faces and address are already public, now one Virginia lawmaker wants registered sex offenders to face public hearings before going inside schools.  To have access to Virginia public schools, House Bill 1366 would require violent sex offenders to pay for a newspaper ad publicizing a personal court hearing.  It would run once a week for two weeks. Then anyone could attend the hearing and testify against them.

The bills author, Delegate Jeff Campbell, says it’s about safety, but the ACLU says it crosses the line of civil rights.  “The public hearing is simply an invitation for an angry mob to gather at a school and get in the way of a parent’s right to be involved in the education of his or her child,” said ACLU of Virginia’s Executive Director Claire Gastanaga.

Gastanaga said there is no real proof that registries and restrictions like this keep kids safer. He said the most direct impact of the bill would be on parents with kids in school who want to go and meet with the kids’ teachers.

Delegate Campbell disagrees: “I disagree totally, what it does is it gives parents of the other children a say in who is around their children.”... “The public’s right to know who is around their children and to have a say in whether they agree in that or not trumps that individual’s right to free access to the school,” he said.

Currently, sex offenders must inform school superintendents before they go inside a Virginia school. Delegate Campbell said there was an incident last year in Wise County where a parent did that and got permission to attend sporting events, but then started showing up to school at other times. Parents got upset and that is the reason for his bill.

A subcommittee unanimously passed the bill on Monday, but there is no set date yet for it to go before the full committee.

Because Virginia's court system is surely already pretty crowded, the burden this bill will create for state court personnel strikes me as significant and notable. A bit of research revealed that there are about 20,000 registered sex offenders in Virginia. Even if only 10% of that group has good reason to go to a public school each year, the Virginia court system is going to have to handle 2000 more annual hearing to consider (and supervise?) any school visit.

January 21, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Thursday, January 15, 2015

Fifth Circuit reverses computer filter lifetime supervised release condition for sex offender

A Fifth Circuit panel yesterday handed down an intriguing little ruling in US v. Fernandez, No. 14-30151 (5th Cir. Jan. 14, 2015) (available here), reversing a notable condition of supervised release. Here is how the ruling starts and ends:

In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”. At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child)....

In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet. Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.

Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”. In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.

January 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Monday, January 12, 2015

"Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"

A helpful reader alerted me to a notable article by Alexandra Stupple appearing in the Fall 2014 issue of National Lawyers Guild Review which has a title that also serves as the title of this post. The relative short article (which starts on page 8 of this pdf link) has the following introduction and conclusion:

Sex offenders have been subject to unprecedented restrictions and punishment.  The government’s treatment of sex offenders is a clear example of the dangers of laws derived from and upheld because of the emotion of disgust.  Disgust has led to a dehumanization of this category of people, which has led to a stripping of their constitutional rights.  The law’s treatment of sex offenders is a clear example of why the law should eschew employing the emotion of disgust during all proceedings.  In addition, the courts’, particularly the Supreme Court’s, treatment of the other branches’ actions regarding sex offenders is illustrative of why the law needs to insist upon empirical data in support of legislation and why the courts should not always defer to the other branches’ findings....

Today, all communities rightfully think of crimes such as child rape and molestation as the grave and heinous acts they are; however, a panic has ensued which has led to a squandering of public resources, the dehumanization of a swath of people, and the denigration of the Constitution.  For the protection of everyone’s constitutional rights, a conscious commitment by all lawmakers to use empirical data in their fact-finding and decision-making is required, even if done while feeling and expressing emotions like anger and contempt.  This may be the only way evidence-based practices and policies that actually protect the public from sexually violent persons will be born.

January 12, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Thursday, January 08, 2015

Is California prepared to revoke parole for any sex offender with an iffy lie-detector test?

The question in the title of this post is prompted by this new AP story with the headline "California making sex offenders take lie-detector tests." Here are the basics:

For the first time, California is making paroled sex offenders take periodic lie-detector tests in response to several high-profile cases involving parolees who raped and killed.

State officials said this week that the stepped-up effort to prevent new sex crimes will help them better gauge which offenders are most dangerous and in need of increased supervision. All sex offender parolees also are required to participate in specially-designed treatment programs. Previously, only high-risk offenders had to undergo treatment.

California is not the first state to adopt the new policies. But with more than 6,000 sex offenders on parole, officials say it is by far the largest.

I have never closely followed the debates of the reliability of lie detector tests, but it appears that California has decided that they are reliable enough to become a mandatory part of parole requirements for sex offenders.   That said, I wonder if these lie-detector test will be considered reliable enough (by parole officials? by courts?) to alone provide a sufficient basis for revoking a sex offender's parole if he sometimes fails to "pass the test with flying colors"?

January 8, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, January 02, 2015

Victims often left behind as states get tough on sex trafficking

This new AP article, headlined "Funding sometimes lags for sex-trafficking victims," highlights that legislators are often much better at slamming criminals than at supporting crime victims. Here are excerpts:

As awareness of America's sex-trafficking industry increases, state after state has enacted new laws to combat it.  But while a few have backed those get-tough laws with significant funding to support trafficking victims, many have not.

In Michigan, for example, a cluster of legislators beamed with pride as Gov. Rick Snyder recently signed a package of 21 anti-trafficking bills.  For a state ranked by advocacy groups as woefully behind in addressing the problem, the package was touted as a huge step forward, making Michigan, in Snyder's words, "one of the leading states in fighting this tragic crime."  Yet the bills contained virtually no new funding, even though a high-powered state commission had reported a serious lack of support services and specialized housing for victims.

"For all the hoopla, it's blatantly not true that we're now at the forefront," said professor Bridgette Carr, a member of the commission and director of the Human Trafficking Clinic at the University of Michigan Law School.  "For many of these victims, there's often no place to go."...

Without such services, advocates say, many victims are less useful as witnesses against their traffickers and more vulnerable to being forced or lured back to the sordid underworld that exploited them.  "We are seeing some states stepping up, but the majority don't have anything specific in their budgets," said Britanny Vanderhoof, policy counsel for the Polaris Project. "There's an idea that once someone is rescued, they're fine," Vanderhoof said. "There's a disconnect with the level of trauma the victims have suffered and the incredible need for services at every level."

Arizona was among the latest states to board the bandwagon, enacting a bill in April that toughens sentences for traffickers of children and stipulates that being a trafficking victim is a defense in prostitution cases.  As in Michigan, however, Arizona's bill did not include funding for victim services....

In Oklahoma, several experts met with a legislative panel in September to discuss the growth of sex trafficking, including a boom in the child sex trade linked to the convergence of major trucking routes near Oklahoma City.  The legislators "were very receptive, and very shocked," said Kirsten Havig, a professor of social work at the University of Oklahoma-Tulsa who was among the speakers.

Yet Havig said the legislators, who have voted to punish traffickers more severely, balked at suggestions that the state spend more on victim services.  "The second I start talking about resource allocation, it's, 'We can't do that,'" she said.  For now, Havig said, Oklahoma lacks a residential facility suited to care for young sex-trafficking victims and has sent some youths to a facility in Houston.  She hopes more state funding might come eventually if advocates can document how many victims need help, "but it's going to be a long haul."...

The Michigan commission's report noted that some states have appropriated significant funds for victim services.  It cited a $2.8 million allocation in Minnesota, which is widely considered the national leader in the field.... Florida is another that state that has stepped up with significant funding for victim services — $3 million in the 2014-15 budget.

Yet Florida and Minnesota, with their seven-figure allocations, are exceptions; many states have invested little or nothing from their general funds for victim services.  Several states have created funds to be financed with fines and forfeitures from traffickers, but advocacy groups say this method can be an unreliable.

January 2, 2015 in Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

Monday, December 29, 2014

Pennsylvania Supreme Court declares state's sex offender registration regulations violate juve offenders' due process rights

Via How Appealing, I see that the Supreme Court of Pennsylvania issued this majority opinion in In the Interest of J.B., J-44A-G-2014 (Pa. Dec. 29, 2014), declaring unconstitutional part of the state's sex offender registration laws (over a lone justice's dissenting opinion). Here is a portion from the start and end of the majority opinion:

In this case, we consider the constitutionality of provisions of the Sex Offender Registration and Notification Act (SORNA) as applied to juveniles.  42 Pa.C.S. §§ 9799.10-9799.41. Pursuant to 42 Pa.C.S. § 722(7), we review this case directly from the order of the York County Court of Common Pleas holding the statute unconstitutional as violative of the ex post facto clause, protections against cruel and unusual punishment, and due process rights through the use of an irrebuttable presumption.  In the Interest of J.B. et al., No. CP-67-JV-726-2010 (CP York Nov. 1, 2013).  After review, we affirm the determination that SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption....

Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption.

December 29, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Friday, December 19, 2014

"Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform"

The title of this post is the title of this timely paper authored by Allegra McLeod now appearing on SSRN. Here is the abstract:

The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms — from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child — the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity.  All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions.  These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the residential opportunities of persons presumed to be strangers to their victims.

But even as these measures render many subject to them homeless and unemployable, sexual abuse remains pervasive and significantly underreported in our schools, prisons, military, and between intimates in families.  Thus, at once, the U.S. criminal regulatory regime constructs a peculiarly overbroad category of feared persons, compels a misguided approach to this population, and neglects the most prevalent forms of vulnerability to sexual predation and assault.

This essay argues that an alternative social institutional reform framework could address pervasive forms of sexual harm more meaningfully and with fewer problems than attend the prevailing criminal regulatory framework.  This alternative framework would depart in large measure from purportedly preventive post-conviction criminal regulation, focusing instead on institutional, structural, and social dynamics that enable sexual violence and abuse.

December 19, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, December 16, 2014

Should problematic police be on a registry like sex offenders?

The provocative question in the title of this post is drawn from this provocative new commentary by Ed Krayewski at Reason titled "Time for a Police Offenders Registry." Here are excerpts:

There's a moral obligation to keep bad cops off the streets.  A job with a police department is not a right and shouldn't be treated like one. Police unions that push for permissive rules that end up protecting bad cops pose a serious public safety threat. Nevertheless, dismantling them where they've taken root is a difficult prospect even in the long-term. There are other ways to keep bad cops off the streets. The federal government, and state governments, ought to create and encourage the use of a police offender registry list.  Such a list would register individuals who while employed as law enforcement officers were found unfit for duty or faced serious disciplinary issues they may have resigned to avoid. Just as any other component of comprehensive police reform, this won't eliminate excessive police violence, but it's a start.

When actually identified, a surprising (or not) number of officers involved in controversial, high-profile use of force incidents have previously disciplinary history.  Officer Daniel Pantaleo, the New York City cop who put Eric Garner in a fatal chokehold, had been previously accused, at least twice, of racially-motivated misconduct, including strip searching a man in the middle of the street and allegedly hitting his testicles.  The police union in New York City is among the strongest in the country.  When a rookie cop shot Akai Gurley in apparent panic last month, he didn't think twice to reportedly contact his union rep first. A man lay dying in a stairwell for no other reason that he startled a rookie, and the fact that the officer called his union representative before calling for assistance isn't shocking enough to lead to the officer's termination.  Even if it were, it would still be impossible to terminate the officer immediately.  While all this is happening, the state of New York is on the verge of placing even more of the disciplinary regime that applies to cops under the purview of the police unions.

But not everywhere is the situation as hopeless as in New York City.  In other parts of the country, cops can get fired relatively more easily.  But it doesn't stop them from finding jobs elsewhere.  Richard Combs, who was the sheriff and only cop in Eutawville, South Carolina, is now facing a murder charge for shooting a resident after an argument at Town Hall, but Combs had been previously terminated from the county sheriff's office for unspecified "unsatisfactory performance."  In Cleveland, Ohio, the cop who shot 12-year-old Tamir Rice, mistaking the boy's toy gun for a real one, had been previously found too emotionally unstable and unfit to carry a firearm for law enforcement.  In Georgia, the cop who shot and killed 17-year-old Christopher Roupe after the teen opened the door to his home holding a Wii controller, had been previously fired for multiple disciplinary problems including shooting at an unarmed person....

This is just a sampling of stories that received enough local attention to gain some prominence.  The situation is unconscionable.  Police found unfit for duty in one jurisdiction shouldn't be employed in another.  Cops who resign to avoid disciplinary charges shouldn't slither their way into another department.  Cops who cost taxpayers millions in lawsuit settlements shouldn't be able to expose taxpayers in other places to the same risk....

State governments, and the federal government, can help.  Sex offender registries, which in some jurisdictions can lead to 19-year-olds who receive sexts from their 17-year-old friends being branded sexual predators for life, are an odious thing that makes a mockery of due process and the idea of the penal system as rehabilitation.  But for some of the same reasons they would work to police the privilege of employment in law enforcement. Constitutionally, the federal government could not mandate states use its police offender registry list or operate their own.  Yet because many of the most troublesome police departments (those in big cities and those in the sticks) also rely most on federal assistance in one way or another, the feds could induce compliance by tying it to such assistance.  The federal government has done this before, though usually to push states to impose certain laws on its residents, not to protect residents from abusive government employees. Such a list wouldn't be a comprehensive solution to excessive police violence, but it's an important part, one that could work to lower the number of bad cops operating on the streets and begin to rebuild trust between police and the communities they're supposed to serve. 

December 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Thursday, December 11, 2014

Notable new reporting on "tough-on-sex-offenders" rhetoric in recent judicial campaigns

The Marshall Project has this interesting new review of the most recent election cycle headlined "Trial By Cash: Judicial elections have gotten ugly. That’s bad news for defendants." Here is how it gets started:

In this year’s battle for the governorship of Arkansas, criminal justice reform was front and center. The Republican victor, Asa Hutchinson, a former federal prosecutor and DEA administrator, promised to combat prison overcrowding and called out “over-aggressive prosecutors who do not use common sense.”  His Democratic challenger, Mike Ross, advocated lighter sentences for nonviolent offenders and more emphasis on rehabilitation. Neither candidate deployed the fear-mongering attack advertisements that have been a campaign-season staple for decades.

The race for an open seat on the Arkansas Supreme Court seat was another matter.  One outside group's campaign ad praised Judge Robin Wynne of the state court of appeals for “refusing to allow technicalities to overturn convictions.”  Another attacked his primary opponent, defense attorney Tim Cullen, by claiming he had called child pornography “a victimless crime.”  Over eerie black-and-white footage of an empty playground, a woman’s voice responded to the statement (a distortion of Cullen's defense brief for a single case), intoning: “Tell that to the thousands of victims robbed of their childhood.” Wynne won.

If there is a growing bipartisan consensus that America locks up too many people for too long, there is little indication that anyone spending money on judicial elections shares the concern.  The real scourge of American justice, these campaigns seem to suggest, is the rampant coddling of child molesters by judges up for re-election.  “WHY SO LENIENT?” one ad demanded, attacking an incumbent state justice in Illinois.  A similar commercial in North Carolina cut from an image of children pedaling tricycles to one of inmates pacing in their cells, and declared that a justice up for re-election “took the side of convicted molesters.”

Judicial races once were largely polite, low-budget affairs.  But in the 1990s, business and political groups began to focus on these elections as an important (and often cost-effective) path to influencing policy and regulation.  Since then, judicial campaigns have come to look more like any other political circus: rallies, political consultants, attack ads, and a flood of campaign cash.  As of Nov. 5, election watchers at the Brennan Center, a liberal think tank that tracks legal issues, estimated that at least $13.8 million had been spent on TV advertising for state supreme court elections nationwide in 2014 — up from $12.2 million in the last midterm election in 2010.  

The funders of these campaigns aren’t generally motivated by a desire to lock up criminals.  In fact, some of this year’s big donors to organizations running tough-on-crime campaigns — including the conservative philanthropists Charles and David Koch — have simultaneously backed so-called “smart-on-crime” reform efforts aimed at shortening mandatory sentences and reducing prison populations.  But fear works, election strategists believe.  Why run on what really matters to your funders — like tort reform or deregulation — when you can run against paroling pedophiles?

December 11, 2014 in Elections and sentencing issues in political debates, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, December 08, 2014

Seventh Circuit affirms, over government complaints, way-below-guideline sentence for child porn producer

Regular readers are familiar with my tendency to lament the failure of circuit courts to scrutinize rigorously post-Booker claims by defendants that within or above-guideline sentences are unreasonably high.  But a recent opinion from a Seventh Circuit panel in US v. Price, No. 12-1630 (7th Cir. Dec. 5, 2014) (available here), prompts me to note that there can be occassions when circuit courts seem a bit too willing to approve way-below-guideline sentences that the government asserts are unreasonably low.  Here are the basics of the defendant's crime and sentencing in Price:

Jeffrey Price took numerous sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12.  He put some of them on the Internet, and they have been implicated in at least 160 child-pornography investigations across the country.  Price also kept a large stash of child pornography depicting other children, which he stored on two computers.

For this conduct Price was indicted on charges of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  A jury convicted him as charged.

Price is more dangerous than the average child-pornography offender because he also has a history of sexually abusing children.  He molested R.P. on multiple occasions, and he sexually abused his sister on a regular basis when she was between the ages of 8 and 14. Despite this history, the district judge imposed a sentence well below the 40-year term recommended by the sentencing guidelines: 18 years on the production count and a concurrent 6-year term on the possession count.

Here is the heart of the Seventh Circuit panel's rejection of the government's appeal of this sentence (with my emphasis added):

The government argues in its cross-appeal that Price’s 18-year sentence — less than half the 40-year guidelines sentence — is substantively unreasonable....

The district judge did exactly what she was supposed to do under the advisory guidelines regime. She correctly calculated the guidelines sentence and exhaustively considered the § 3553(a) factors, giving particular emphasis to the aggravated facts of this case. But she also exercised her discretion to consider the scholarly and judicial criticism of the guidelines for child-pornography offenses, as she is permitted to do. She expressed substantial agreement with the Second Circuit’s opinion in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which explained that the guidelines in this area are not the product of the Sentencing Commission’s empirical expertise, but rather reflect directions from Congress to punish these crimes more harshly, id. at 182.  Dorvee also notes that § 2G2.2, the guideline for possession of child pornography, calls for the application of multiple enhancements that apply in almost every case, making inadequate distinctions between the worst offenders and those who are less dangerous. Id. at 186–87.

The judge acknowledged that most of the criticism of the child-pornography guidelines is aimed at § 2G2.2, the guideline for the possession offense. But she concluded that § 2G2.1, the guideline for production of child pornography, “presents some of the same problems.” Both guidelines, she said, are vulnerable to the critique that they are not the product of the Sentencing Commission’s empirical study and independent policy judgment. She also noted that both guidelines call for enhancements that apply in nearly every case, exerting virtually automatic upward pressure on sentences and failing to separate less dangerous offenders from those who are more dangerous....

The government objects that Price’s 18-year sentence is only three years above the 15-year statutory minimum. See § 2251(e). Canvassing the aggravated facts of the case and Price’s history of sexually abusing children, the government argues that the sentence strays too far from the 40-year guidelines sentence and is simply too low to be considered substantively reasonable. “At the very least,” the government maintains, the sentences for the production and possession counts should be consecutive, as the guidelines recommend. See § 5G1.2(d).

Price’s crimes are indeed deplorable, and a sentence of 18 years obviously represents a substantial variance from the recommended 40-year term. But there is room for policy-based disagreement with the guidelines even to this extent. The government has not established that the sentence exceeds the boundaries of reasoned discretion. More specifically, the government has not established that an 18-year sentence for Price’s crimes — even in light of his contemptible history and unrepentant nature — is so low as to be substantively unreasonable.

I have been one of a number of academic critics of the severity of the federal child pornography sentencing guidelines, but that criticism has been largely based on the fact that these guidelines often call for decade-long sentences even for those offenders who did no more than download illegal pictures and thereafter showed remorse, pleaded guilty and sought treatment for their criminal activity. In contrast, the defendant in this Seventh Circuit case seemingly has a long history of child rape to go along with producing and possessing child pornography, and the Seventh Circuit recognizes he has both he has an "contemptible history and unrepentant nature."

Though perhaps 18-year in prison is still plenty long enough for this sexual predator (as the district judge apparently concluded), I would have liked to heard a lot more from the Seventh Circuit about how this way-below-guideline sentence appears reasonable in light of all of the 3553(a) factors. Especially for a defendant who has already shown himself to be a significant danger, "close enough for government work" is not all that satisfying an approach to reasonableness review in my view.

December 8, 2014 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, November 30, 2014

Growing awareness of the limited efficacy of local sex offender residency restrictions

This new Wall Street Journal article highlights the new awareness of enduring problems with sex offender residency restrictions.  The lengthy piece is headlined "Cities and Towns Scaling Back Limits on Sex Offenders: Officials Say Buffer Zones Don’t Prevent Repeat Offenses and Make Predators Harder to Track," and here are excerpts:

When Palm Beach County, Fla., was sued earlier this year over its housing restrictions for registered sex offenders, its attorneys took an unusual approach: They suggested the county relax its law.

The county’s commissioners — prompted largely by the lawsuit brought by a sex offender who claimed the limits rendered him homeless — voted in July to let such offenders legally live closer to schools, day-care centers and other places with concentrations of children. “We realized the law was costing the taxpayers money [for services for the homeless] and was causing more problems than it was solving,” said county attorney Denise Nieman.

In the mid-1990s, states and cities began barring sex offenders from living within certain distances of schools, playgrounds and parks. The rationale: to prevent the horrible crimes sometimes committed by offenders after their release. In October, for instance, officials charged sex offender Darren Deon Vann with murdering two women in Indiana. Mr. Vann, who is suspected of killing several others, pleaded not guilty.

Now, a growing number of communities are rejecting or scaling back such limits — out of concern that they don’t prevent repeat offenses, and, in some instances, may make sex offenders harder to track....

A 2013 Justice Department study that examined Michigan’s and Missouri’s statewide restrictions showed they “had little effect on recidivism.” Other studies have found the vast majority of sex-offense cases involving children are committed not by strangers but by family members or others with established connections to the victims, such as coaches or teachers.

About 30 states and thousands of cities and towns have laws restricting where sex offenders can live, while others are adding them. In March, a 1,000-foot buffer from parks took effect in San Antonio. In July, Milwaukee passed a law banning sex offenders from living within 2,000 feet of a variety of places where children gather....

Critics, however, say such moves do little more than score lawmakers political points and give an area’s residents a false sense of security. Some argue they can make communities less safe, by making it hard for offenders to find stable housing.

David Prater, district attorney of the county that encompasses Oklahoma City, said he and other state prosecutors have tried to get the state to relax its 2,000-foot buffer, to no avail. “No politician wants to be labeled the guy who lessens restrictions on sex offenders,” he said....

Some smaller towns are chucking restrictions, partly in the name of public safety. De Pere, Wis., a town of 23,000 south of Green Bay, tossed out its 500-foot buffer last year after reviewing data on its effectiveness, said several council members. The issue was reopened by some townspeople several months ago ,when a convicted sex offender moved across the street from a school for children with special needs. But the council didn’t budge. “You track where they live, you check in on them, but you let them live at home, where they’re comfortable and stable,” said Scott Crevier, a DePere city councilman. “I feel we’re actually safer than a lot of other towns in the state that have them.”

November 30, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Sunday, November 23, 2014

Reviewing the potential and pitfalls in a notable problem-solving court in NYC

Today's New York Times has this terrific lengthy account of the work of a unique "problem-solving court" in New York.  The piece is headlined "In a Queens Court, Women in Prostitution Cases Are Seen as Victims," and here are small excerpts from an article that merits a read in full:

The Human Trafficking Intervention Court in Queens, which is marking its 10th anniversary next month, ... serves as a model for a statewide 11-court program that began last year. The intention is to change the legal conversation around the multibillion-dollar sex trade by redefining the women in it as victims instead of criminals. Most are offered a deal: Take part in a set number of counseling sessions, usually five or six, and the charges will be dismissed and the record sealed.

After 13 months, the five New York City courts are still a work in progress, their success tracked more in individual stories than statistics. “This court is not devised to solve the problems of trafficking,” Judge Serita said of the program, “but to address one of the unfortunate byproducts, which is the arrest of these defendants on prostitution charges.”

All defendants in the specialized courts are presumed to be victims at risk, the first of many assumptions made, in part, because of the silence surrounding sex trafficking. That silence also makes it tougher to shift social mores. Not only do the police and the justice system still treat prostitution as a crime, but the women themselves, most undocumented, often don’t define themselves as having been trafficked — whether out of fear, shame or choice....

At no point in the proceedings does the judge, the prosecutor or the defense lawyer ask if the defendants have been trafficked; nor is there a quid pro quo to give up a trafficker. It is rare, but the hope is that the women, perhaps after working with counselors, will feel comfortable describing the conditions that led them to prostitution....

On Fridays, Judge Serita usually hears more than 40 cases in three hours. “How are you today?” she asks each of the women, inquiring whether they take English classes and praising their progress. Several defendants said they noticed less that she was an Asian woman and more that she had a warm demeanor. On other days, she presides over the drug treatment and mental health courts in Queens.

The trafficking court, she acknowledged, is a Catch-22: For people to feel less like criminals, they must first go through the criminal justice system. Leigh Latimer, the Legal Aid Society lawyer assigned to Judge Serita’s court, agreed. “There is a somewhat more recent view that clients are potentially victims, but we’re still arresting them at a very rapid pace,” she said. “We’re trying to solve their problems through being arrested, which is not an affirming process.”...

On several Fridays, nearly a dozen women said during interviews in Mandarin that they did not feel like trafficking victims, but victims of the police. The women all spoke on the condition of anonymity because their cases were still pending. “My name has been tarnished,” said one woman, who was upset that her case was “lumped with all those others.” She denied performing a sex act, but the police report contradicted that, Ms. Affronti said.

Another woman explained that she was arrested at 4 a.m. on her sixth day of work. She and her sister, who quit after the second day because she sensed “something was not right,” owed more than $80,000 to friends and family members who raised the money for them to come to the United States from Fuzhou. That type of pressure to pay back smuggling agents — often with interest as high as 12 percent — is considered “debt bondage.” It is a more subtle condition of human trafficking, but is pervasive in New York’s Asian communities, lawyers say.

November 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, November 18, 2014

Ninth Circuit upholds injunction, on First Amendment grounds, blocking California law requiring sex offenders to report report online activities

As reported in this Bloomberg story, "California can’t enforce a law to combat sex trafficking because it tramples on free speech rights of sex offenders by requiring them to report online activities, such as their Twitter, e-mail and chatroom accounts, a U.S. appeals court ruled." Here are more of the ruling's basics via the press:

The San Francisco-based court today upheld a judge’s decision to block enforcement of a voter-approved law that was backed by former Facebook Inc. (FB) executive Chris Kelly and garnered support from more than 80 percent of California voters in 2012.

The measure, known as Proposition 35, isn’t clear about what accounts or Internet service providers offenders are required to report and targets online speech that could include blogging about politics and posting comments on news articles, the appeals court’s three-judge panel said today.

The law also harms sex offenders’ ability to engage in anonymous speech because it allegedly allows police to disclose their online identities to the public, the court said. Failure to report on Internet activity can lead to criminal sanctions.

A requirement that registered sex-offenders notify police within 24 hours of using a new Internet identity chills activity protected by the U.S. Constitution’s First Amendment, U.S. Circuit Judge Jay S. Bybee wrote in the unanimous ruling.

The ruling in Doe v. Harris, No. 13-15263 (9th Cir. Nov. 18, 2014) (available here), officially gets started this way:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement.  Cal. Penal Code §§ 290.012, 290.015.  The Californians Against Sexual Exploitation (“CASE”) Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person.” Id. § 290.015(a)(4)–(5).  The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider (“ISP”). Id. § 290.014(b). 
Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment.  Appellees filed a motion for a preliminary injunction, which the district court granted.  Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal.  We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.

November 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections | Permalink | Comments (12) | TrackBack

Thursday, November 06, 2014

New California report finds many challenges in sex offender monitoring

As reported in this local piece from California, "two-thirds of parole agents who monitor sex offenders juggle caseloads that exceed department standards, a state corrections review reported Wednesday in response to an Orange County murder case." Here is more about the report's findings:

Agents are supposed to supervise between 20 and 40 parolees, depending on how many are high-risk offenders. But more often than not, the state Office of the Inspector General found, agents are overburdened. At 14 of the state’s 37 units responsible for supervising paroled sex offenders, all agents had bigger caseloads than department policies allow. The inspector general surveyed the units’ caseloads in August.

The report also criticized the effectiveness of GPS monitoring and housing restrictions enacted through Jessica’s Law, a 2006 ballot measure. The inspector general tied the restrictions to a spike in homelessness and strained resources....

The state Sex Offender Management Board recommended four years ago that agents supervise no more than 20 paroled sex offenders. But the inspector general said corrections officials haven’t adopted the lower threshold.

The inspector general report was requested by state Sen. Darrell Steinberg after the April arrests of Steven Gordon and Franc Cano, two transient sex offenders registered to live in Anaheim. Steinberg was head of the Senate at the time and chairman of its rules committee....

Steinberg didn’t request that the inspector general probe how Gordon and Cano were supervised by parole agents. Previously, the office did just that after the high-profile convictions of sex offenders Phillip Garrido and John Gardner. This time, Steinberg focused on broader questions about the impact of GPS monitoring and housing restrictions.

The Department of Corrections and Rehabilitation estimates that it spent about $7.9 million to monitor more than 6,000 paroled sex offenders with GPS devices in the last fiscal year, a decline from $12.4 million four years earlier.

The detailed 80+-page report from the California Office of Inspector General, which is titled "Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions," is available at this link.

November 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack

Sunday, November 02, 2014

Following-up in Maryland after court rules some sex offenders not subject to new registration requirements

This lengthy new Baltimore Sun article, headlined "Court ruling upends Maryland's sex offender registry," provides an interesting follow-up a few months after a state court ruling disrupted the state's sex offender registry. Here are excerpts:

The memory of the break-in still stirs terror three decades later: The Rockville woman was ordered out of bed at knifepoint by a teenage burglar, who commanded her to stare out a window as he started to take off her robe.  Before anything else could happen, the woman's husband, who had been tied up in the bathroom, broke his bonds and violently tackled the teen, leaving both of them with stab wounds. That ended Robin Lippold's 1981 summer crime spree, which included other burglaries and a rape.

But it did not eliminate the woman's fear, which lingered long after the pre-dawn attack. That dark emotion surfaced again last week, when she learned that Lippold had been removed from Maryland's sex offender registry, a searchable public database that lists each person's residence and place of employment.

The 50-year-old Lippold is among 1,155 sex offenders who have been removed from the registry since February, according to data obtained by The Baltimore Sun through a public records request.  Almost 400 of them are rapists, including a man who raped a blind teenage girl in a mall parking lot and a man who raped a 67-year-old woman who was walking her dog.

Most have been stripped out because of a decision by Maryland's highest court.  That ruling handed a victory to advocates who said the registries were unfairly punitive, but has troubled legislators and upset victims.... The Court of Appeals ruling — that laws governing the registry subjected some offenders to a form of retroactive punishment — has radically altered Maryland's system of tracking people convicted of sex crimes.

Experts say there's little evidence that the registries help keep the public safe, and can unfairly punish offenders. Some judges around the United States have agreed that the registries amount to unconstitutional punishment in some cases.  In Maryland, a prominent defense lawyer is continuing to fight in the courts, seeking to get more names removed from a list that she says stigmatizes too many people.

But the lists are popular among legislators, who see them as an option to keep the public safe and give people a reassuring way of looking up who among their neighbors or colleagues has been convicted of sex offenses. Sen. James Brochin, a Baltimore County Democrat, said of the Maryland appeals court judges, "What they've done is sickening … it's mind-boggling. The court's shown a total disregard for the community."...

While the registries have many supporters, researchers have found little evidence that they reduce the rates at which sex offenders commit new crimes.  "Those policies were based on myths: Once an offender, always an offender," said Elizabeth J. Letourneau, a sex crime researcher at the Johns Hopkins University. "They are unlikely to be harming community safety by removing people like that from a registry."

Lisae C. Jordan, an advocate for victims of sex crimes, said accurately measuring recidivism rates can be difficult because many offenses go unreported. But she also noted that registries have never been a way to stop all offenses because most would-be rapists have never been convicted.

What the studies do show, experts say, is that having to register makes it harder for ex-convicts to successfully find work and have productive lives.  In postings on an Internet forum critical of the Maryland registry, offenders have described their struggle getting work..... In other cases, communities have turned to vigilante justice.  Last week, a Baltimore woman was sent to prison for six years for her part in the beating death of a sex offender.

Now Maryland's registry is being trimmed because the Court of Appeals ruled in 2013 that people who committed crimes before it was created had been subjected to fresh punishment in violation of the Maryland Declaration of Rights....  The Court of Appeals was fragmented but in a patchwork of opinions, ultimately sided with Haines. Applying the laws retroactively violated the "fundamental fairness and the right to fair warning" about the consequences of a crime guaranteed by the state constitution, Judge Clayton Greene Jr. wrote.

Courts across the country have split on whether states should be allowed to stock their registries with people who committed crimes long ago....

Nancy S. Forster, a Baltimore attorney representing a number of people challenging Maryland's registry laws, said she has other cases in the works that could lead to more offenders being taken off the list.  The attorney general's office is examining the cases and will fight in court when it sees the opportunity.  

And some lawmakers said they plan to craft legislation that might soften the impact of the Court of Appeals ruling. Possible options include creating a registry that's only available to law enforcement or using a risk assessment system to flag the most dangerous offenders....

Now that the judges have had their say, Sen. Nancy Jacobs said, the debate now should focus on the victims of sex crimes.  Jacobs, a Cecil and Harford County Republican, pushed hard to toughen sex crime laws in 2009 and 2010, but is leaving the Senate.  "We need to care more about the victims than about the people who sexually assaulted these children," she said. "They need help."

November 2, 2014 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack