Sentencing Law and Policy

The many new tech challenges surrounding the monitoring of old and new sex offenders

This morning's Washington Post has this fascinating and important new article headlined "Tracking sex-crime offenders gets trickier: Violator registry is growing as tech-savvy predators put a greater burden on officers." Here are excerpts:

The nationwide crackdown on child pornography and other sex offenses has created severe manpower shortages and technology challenges for probation officers, police and federal agents struggling to track offenders who are jumping online with cellphones and portable game systems and flocking to social networking and other sites, where children or pornography can easily be found.

There are more than 716,000 registered sex offenders nationwide, according to the National Center for Missing & Exploited Children, a 78 percent increase since 2001, and that does not include all offenders because some crimes do not require registration.  Sex-offender registries have grown even faster in the Washington area, with more than 24,000 people listed....

The focus on crimes against children that began in the Bush administration shows no sign of abating under President Obama. Federal child sexual exploitation prosecutions are up 147 percent since 2002, and the Justice Department is hiring 81 more prosecutors for these cases.  Funding for task forces that bring charges in state courts rose this year from $16 million to $75 million.

But many of those offenders are now leaving prison, even as revenue-strapped states are cutting the budgets of probation departments.  In Virginia, probation and parole cuts this year totaled nearly $10 million, including $500,000 for electronic monitoring of sexually violent predators.  Maryland also has cut its budget. "The burden on probation and parole officers is going to explode," said Ernie Allen, the national center's president.

The monitoring of virtually all sex offenders is required by law when they are on probation or parole. The problem has gained national attention with the discovery of 10 bodies and a skull at a registered sex offender's home in Cleveland and revelations that Jaycee Lee Dugard was kidnapped at age 11 in 1991 and allegedly held captive at a California sex offender's house until her reappearance in August.  Officers had visited both homes and noticed nothing wrong.

Those cases underscore a troubled registry system that has been the public face of sex-offender monitoring.  An estimated 100,000 offenders do not comply with registration requirements. Law enforcement doesn't know where many of them are.

But the most alarming development for officers is proliferating electronic gadgets and the temptations they pose to sex offenders.  A man on probation in Iowa for molesting a 9-year-old girl, for example, was recently caught downloading pornographic images of a young girl on his PlayStation Portable -- while walking to his probation appointment.

Sometimes, offenders cannot be monitored even while in custody.  David L. Franklin, a church deacon, pleaded guilty in federal court to sending child pornography to an undercover D.C. police detective.  While awaiting sentencing, Franklin struck up another online conversation with the same detective, who traced the defendant to an unusual address -- the D.C. Correctional Treatment Facility.  Franklin had smuggled a cellphone into his jail cell and was on his bunk, online, when guards grabbed it, sources familiar with the case said.

Sex offenders can now be blamed for ruining Christmas tradition

Sex offenders surely do not need any more bad press.  But this new article from USA Today, which is headlined "Postal Service to block 'Dear Santa' letters to North Pole, Alaska," suggests that they might soon be blamed for ruining one of the best parts of Christmas:

The U.S. Postal Service, citing security and privacy concerns of children, will no longer forward "Dear Santa" letters to the Alaska town of North Pole, putting in jeopardy the town's 55-year-old volunteer letter-answering effort by the town.  The concern is that names, addresses and other private information about small children could get into the wrong hands.

Postal Service officials note that a postal worker last year in Maryland recognized a volunteer in the agency's Operation Santa program as a registered sex offender, the Associated Press reports.  The Postal Service now prohibits volunteers in such programs to have access to children's last names and addresses.

Mayor Doug Isaacson says the Postal Service is "running roughshod" over the city of North Pole, whose identity is tied to Christmas, the Fairbanks Daily News-Miner reports.   "What grinch would conceive of something so sinister?" Isaacson tells the paper.  He says businesses and civic organizations in the town of 2,200 gear up for the program every year "when we're able to really demonstrate the spirit of Christmas."

Republican Sen. Lisa Murkowski has called on the postmaster general to scrap the new policy.

"Does the punishment fit the crime for child porn?"

The question in the title of this post is the headline of this effective local article from Ohio.  Here are excerpts, which also serve to spotlight how different sentences for this crime can often be depending upon whether a defendant is prosecuted in state or federal court:

Legal experts on all sides agree that downloading and watching child pornography is repugnant behavior. What they are at odds over is whether such defendants are as much of a threat to society as rapists or murderers. Nationwide, judges are questioning whether mandatory and recommended sentences for child porn are too harsh....

In 1991, a person with no criminal history who possessed violent child pornography images and movies and shared them with others would face a maximum of two years in prison in federal cases. Today, that same person could face more than 20 years behind bars....

[U]nder guidelines set by the U.S. Sentencing Commission — a federal agency that turns legislation into rules that guide judges on sentencing — child porn viewers often accumulate penalties, known as "enhancements" that add time for those who use the Internet and other circumstances that appear in nearly every child pornography case. This means the recommended sentences for viewers can easily be higher than those for predators.

"Simply stated, a defendant whose only crime is personal use typically receives the same sentence as a commercial peddler or someone who has molested a child," attorney Joseph W. Gardner stated in his sentencing memorandum on behalf of client Anthony Campana. Campana, 41, of Fairport Harbor was sentenced to 20 years in prison Oct. 30 by U.S. District Judge Peter C. Economus in Cleveland.

Campana, a truck driver with no prior criminal record, was previously convicted by a jury of possession and distribution of child pornography. Gardner requested Campana receive no more than six years in prison out of a possible life term. The defense attorney argued, "His crimes were perpetrated on a computer, not on children."...

Lake County Common Pleas Judge Vincent A. Culotta said watching child porn is far from a victimless crime — as real children are forced into the underground sex world to make the images. Yet Culotta said as a judge, his job is to compare child porn cases with other cases of similar nature.

Earlier this month, he was widely criticized on an online forum for sentencing an Eastlake man who swapped a large amount of child pornography to four years in prison — six years less than the prosecutor recommended. The judge explained in court that 10 years was too much time in the case of Paul Skala, a 62-year-old man with no prior criminal record. "You do realize that he never actually touched a child, right?" Culotta told Assistant Prosecutor Lisa Neroda.

He then gave recent examples in which the prosecutor's office recommended far lesser sentences for child porn cases in which the offender did have a prior criminal record. He also pointed out cases in which physical contact between the offender and victim occurred — but the recommendations were still less than what they had asked for in Skala's case. "There are a number of cases where people are being sentenced for actually harming children, and the recommendation does not even come close to 10 years," the judge said.

Experts say it has not been clearly established whether most viewers of child pornography are likely to commit acts of physical abuse.  Meanwhile, an increasing number of judges are starting to rebel against sentencing recommendations and guidelines in certain situations.

A few related recent child porn sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• More examples of sentencing uncertainty surrounding federal child porn cases
• Effective review of federal uptick in child-porn prosecutions
• Documenting the uptick in child porn prosecutions

"Did Pageant Officials Distribute Child Pornography to Smear Carrie Prejean?"

The title of this post is the question in the headline of this provocative commentary, which seeks to dig deeper into how the Carrie Prejean "sex tape" surfaced and whether crimes were committed in the tape's distribution.  Here is a snippet from the commentary:

The video came to light after the Miss California pageant’s lawyers showed some of the tape in court, causing Prejean to drop her lawsuit against the contest in “about fifteen seconds.”  But the court attendees — including Prejean’s mother — were not the first to see the film since the break-up. The celebrity gossip website TMZ has announced it “obtained the video months ago.”  Which raises the question: how and from whom was the film”obtained”?  In this case, it seems prudent to ask the Latin question, Cui bono — who benefits? The beauty contest’s lawyers, who took Prejean’s crown under questionable circumstances, were locked in a bitter legal battle with a sympathetic defendant.  Did pageant officials leak child pornography to the media in an effort to destroy a legal adversary?

Prejean sued the pageant in late August. If the lawyers sent a copy of the allegedly illegal tape to TMZ in September, that would qualify as “months ago.”  E! News added another wrinkle last week, noting that unnamed “peddlers” offered the video as an “exclusive” months ago for $10,000 — and even pornographic websites would not touch it. Nik Richie of TheDirty.com told E, “our lawyers wouldn’t let us put it on the site.”

If any cash changed hands in any of the various transactions leading from the boyfriend to the barristers, that would constitute trafficking in child pornography....

The distribution chain begins with the boyfriend — but if he is like most teenage boys, he probably passed off duplicated copies to his 20 closest friends within an hour, a pointed lesson for teens about the perils of sexting. Any of its recipient may have approached the Miss California USA pageant or these websites — or the pageant may have subsequently contacted the websites....

If Carrie was indeed 17 at the time, all parties should be investigated and, if grounds exist, prosecuted to the fullest extent of the law. 

Let me repeat again what I have said in prior post about the Prejean sex tape: I am not seriously advocating that this matter become fodder for federal prosecutions.  Rather, I am eager to use this high-profile incident as a teaching moment to help make everyone aware of how broad federal child porn laws technically sweep.  And, as the linked post reveals, others may indeed be eager to use broad federal criminal prohibitions in order to turn this ugly matter into a federal case.

Some recent related posts:

• Is Carrie Prejean technically subject to 5-year mandatory minimum federal sentence for distributing child porn?
• Can Carrie Prejean now use her "child porn" sex tape to her advantage?

Texas jury sentences FLDS member to 10 years in prison for sexual assault

This local article, headlined "Jury gives Jessop 10 years for sexual assault," reports on the sentencing outcome in a high-profile sexual offense prosecuion.  Here are the details:

Jurors took about six hours before handing down the sentence of 10 years in prison and an $8,000 fine.  Jessop, who faced a maximum sentence of 20 years and a $10,000 fine, will have to serve at least five years before becoming eligible for parole.

[Raymond Merril] Jessop’s conviction of sexually assaulting a 16-year-old girl in November 2004 at the Yearning for Zion Ranch and the punishment determined by a seven-man, five-woman jury mark a victory for prosecutors in the first of what may be many trials springing from the April 2008 raid on the ranch.

“Today, justice was served,” prosecutor Eric Nichols of the Texas Attorney General’s Office said, flanked by Texas Rangers, 51st District Attorney Stephen Lupton and other law-enforcement officials.

Besides Jessop, 11 other members of the Fundamentalist Church of Jesus Christ of Latter Day Saints face charges ranging from aggravated sexual assault to failure to report child abuse.  Another trial is set to start in about three weeks. Asked if he thinks the conviction sent a message to the FLDS church about underage marriage, Nichols said, “We try one case at a time.”

Can Carrie Prejean now use her "child porn" sex tape to her advantage?

In this post yesterday I discussed some of the federal child pornography laws implicated by the acts of  Former Miss California USA Carrie Prejean in making and distributing a "sex tape" at the tender age of 17.  Following up these points is this on-line commentary, titled "The Carrie Prejean sex tape is child pornography," which concludes with this intriguing bit of legal analysis and advice for Prejean:

You've got to be 18 to exercise your constitutionally protected rights to free speech by stripping off and having sex of any kind on camera. If you're a day below that age then it isn't free speech, it's child pornography. And those who sell it, those who distribute it and even, in certain places, those who watch it inadvertently can go to jail.

All of which leaves open an intriguing option for Carrie Prejean herself if she wishes to pursue it.  If it really is true that the pageant's lawyers played the tape in [a] meeting, rather than just revealing its existence, then they themselves are guilty of possession of (and quite possibly production of, given the way the law works about how computers reproduce images as they play them) child pornography.  Not that this would earn her any money, but seeing them go down for years as a result would be some sort of revenge, wouldn't it?

Of course, regular readers of this blog should now know that this commentary does not fully capture what Prejean might now hope to achieve through existing federal child porn laws.  As detailed in prior posts (some of which are linked below), a number of federal courts have ordered large restitution payments from child porn downloaders to the children/victims portrayed in the illegal images that have been unlawfully possessed.  So, were Prejean to convince federal officials to seek to prosecute some of the folks who have viewed and distributed her "child porn" sex tape, she might be able to seek significant restitution as the victim of these child porn offenses.

Of course, as I explained in my prior post about the Prejean sex tape, I am not seriously advocating that this matter become fodder for federal prosecutions.  Rather, I am simply eager to use this high-profile incident as a teaching moment to help make everyone aware of how broad federal child porn laws technically sweep.

Some recent related child porn posts:

• Is Carrie Prejean technically subject to 5-year mandatory minimum federal sentence for distributing child porn?
• Effective new opinion discussing restitution in federal child porn possession cases
• The latest (beneficial?) litigation front in child porn downloading battles
• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home

Is Carrie Prejean technically subject to 5-year mandatory minimum federal sentence for distributing child porn?

As detailed in this AP story, which is headlined "Ex-Miss California admits to making sex tape," it appears that a high-profile public figure is now admitting that she has engaged in behavior that makes her technically guilty of a federal crime under 18 USC 2252(a)(2) (which is punished through a five-year mandatory minimum federal prison term).  Here are the basics:

Former Miss California USA Carrie Prejean calls a sex tape she made for an ex-boyfriend several years ago "the biggest mistake of my life."  Prejean told Fox News on Monday and NBC's "Today" show on Tuesday that she shot the X-rated video of herself alone when she was 17 and sent it to a boyfriend.

Because Prejean was 17 at the time of the making of this "sex tape," it technically involves was federal law calls "use of a minor engaging in sexually explicit conduct."  I am not sure if Prejean could technically be guilty under 18 USC 2251 for producing child porn and so be subject to a 15-year mandatory minimum, but I am confident that she could be technically subject to the five-year minimum under 18 USC 2252(a)(2) for distributing material involving the sexual exploitation of minors.

With this post I am not — repeat, I am not — urging that Carrie Prejean be subject to federal (or state) child porn prosecution or be facing any criminal charges at all.  Rather, I am just hoping to use this high-profile incident as a teaching moment to help make everyone aware of how broad federal child porn laws technically sweep.

Indeed, in addition to potentially making Carrie Prejean a criminal, broad federal child porn laws could arguably be applied to anyone who seeks to post or link to a video of the Prejean sex tape.  Though possibly a media organization could assert a First Amendment defense when reporting on this new news story, lower courts have generally been disdainful of constitutional defenses raised in federal child porn actions.

Texas conviction of FLDS member resulting in fascinating jury sentencing experience

As detailed in this local report, which is headlined "Testimony in Sentencing for FLDS Member," the recent conviction in Texas of an FLDS member on sex charges has now led to a fascinating jury sentencing proceeding:

A jury that convicted a member of the Utah-based FLDS Church will begin deliberating his sentence. After a day-long hearing on Monday that included hours of testimony, a judge set closing arguments and deliberations on Tuesday in the case of Raymond Jessop. Jessop, 38, was convicted of child sex assault for fathering a child with a 16-year-old girl who was a polygamous wife. He faces up to 20 years in prison.

The jury is deciding the sentence. On Monday, testimony included an FBI agent, a pair of Texas Rangers who testified about documents, and two former members of the polygamous church.

Here are more details about the jury sentencing proceedings in this case from additional media accounts headlined "Talk of 'celestial wives,' long-term effects of assault," and "Sentence is expected Tuesday for FLDS man":

Jurors are to report back 9:30 a.m. today to the improvised 51st Judicial District Courtroom to hear closing statements from the defense and prosecution.  Then they will begin the task of deliberating on what his punishment should be for sexually assaulting a 16-year-old girl in November 2004 at the Yearning for Zion Ranch near Eldorado.

Jurors will have to choose between two portraits drawn in the courtroom of Jessop.  Is he the self-sacrificing, hardworking father who can cross the boundaries of religion and culture to form friendships and who can be trusted not to smoke, drink or cuss around someone’s family?

Or, as the prosecution would have jurors believe, is Jessop the powerful FLDS man who benefited from the church grooming underage girls to accept marriage with men twice their age, married eight “purported” wives in addition to his legal wife, helped hide now imprisoned Warren Jeffs and endangered his unborn child and the victim while she was in labor?

Jessop could receive two to 20 years in prison.  He could also receive community supervision.

Anyone inclined to make predictions about how the jury will sentence in this case?

Documenting the uptick in child porn prosecutions

My local paper has this article this morning, headlined "Authorities crack down on child-porn offenders," which documents the uptick in federal prosecutions of child porn offenses in one district and nationwide. Here are excerpts:

The recent arrest of a Hilliard middle-school teacher and coach on child-pornography charges shocked a community, but it was no surprise to members of law enforcement.

"There is no profile for these individuals," said Westerville Police Chief Joe Morbitzer. "There are so many different types, from all walks of life."  Among those prosecuted by federal authorities in the southern district of Ohio in the past year were a 42-year-old minister from Chillicothe, a 50-year-old information-technology worker for Ohio State University and a 56-year-old pediatrician from Troy.

Prosecutions have surged as investigators grapple with the increasing availability of child pornography on the Internet.  The U.S. attorney's office in Columbus prosecuted 44 people on child-pornography charges in the past 12 months, more than double the caseload during the previous year. Similar efforts are taking place nationwide.  Agents from federal, state and local agencies are forming more than 60 regional task forces, including one in Franklin County, to combat Internet crimes against children....

Two decades ago, law enforcement had all but eliminated child pornography, which then consisted of printed material and videos offered in adult book stores or through the mail.  But the advent of the Internet caused an explosion in the availability and graphic nature of the material....  The number of images sent to the National Center for Missing & Exploited Children after being intercepted by Internet-service providers and law-enforcement agencies has grown from 551,528 in 2004 to 8.6 million in 2008.

Interestingly, my paper also has this important new AP piece this morning, which is headlined "Framed for child porn _ by a PC virus."  Here are its main points: 

Of all the sinister things that Internet viruses do, this might be the worst: They can make you an unsuspecting collector of child pornography....  Pedophiles can exploit virus-infected PCs to remotely store and view their stash without fear they'll get caught.  Pranksters or someone trying to frame you can tap viruses to make it appear that you surf illegal Web sites....

An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus.  It can cost victims hundreds of thousands of dollars to prove their innocence.  Their situations are complicated by the fact that actual pedophiles often blame viruses — a defense rightfully viewed with skepticism by law enforcement.

A few related recent federal child porn prosecution and sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• More examples of sentencing uncertainty surrounding federal child porn cases
• Effective review of federal uptick in child-porn prosecutions

"10 Bodies in Sex Offender's Home: Is System Broken?"

The title of this post is the headline of this new ABC News piece which seeks to reflect on what the horrific Anthony Sowell case might tell us about modern sex offender regulation efforts. Here are snippets from the piece:

As the count of bodies found at the Cleveland, Ohio, home of a registered sex offender, more and more people are wondering how they could have gotten there without anyone knowing?

Now that Anthony Sowell has been arrested and charged with multiple counts of murder, the question is, why weren't the police and parole officers who were keeping tabs on him aware of what was going on?

Sowell, 50, today was ordered held without bail on five counts of aggravated murder, while police investigators confirmed they had found 10 bodies in and around his home, and a skull in his basement. "In 28 years of being on this bench, this is without question the most serious set of allegations that I have ever faced," Judge Ronald B. Adrine said during Sowell's court appearance today....

If it turns out that Sowell is responsible for the deaths of the people whose bodies have been found at his home, it could because he was able to exploit a broken parole and sex offender registry system.  Sowell was a registered sex offender, but authorities failed to enlist the community's help to be on the lookout for signs of trouble....

Experts say sex offender lists are not only long, but fail to distinguish between minor offenders and the most dangerous predators.  "The system that we have to do monitoring and supervision follow-up once they return to the community is just overwhelmed," said Ernie Allen of the Center for Missing and Exploited Children.

Ohio Supreme Court hears challenge to state's new sex offender registration rules

As detailed in this local article, which is headlined "Lawyers fight law on sex offenders before Ohio Supreme Court," the latest legal battle over the latest sex offender laws is taking place in my own backyard.  Here are the basics:

Thousands of registered sex offenders would be subject to less-stringent reporting requirements if defense lawyers succeed in challenging parts of a 2007 state law intended to crack down on sexual criminals.

The attorneys told the Ohio Supreme Court today that the get-tough law was applied illegally to more than 26,000 sex offenders who were sentenced before it took effect. In addition, the lawyers said, the measure penalizes people who commit sex offenses before they turn 18 by requiring them to continue to register as sex offenders well into adulthood.

The state's highest court heard four cases today challenging Senate Bill 10, which created a new system for classifying sex offenders based more on the severity of the crime than the likelihood of committing future offenses. More than half of the offenders were placed in the most-serious category — sexual predators — who are required to register every 90 days for life.

Jeffrey M. Gamso, a Toledo lawyer who argued one of the cases, said the law had more to do with securing federal funding under the Adam Walsh Act than protecting Ohioans....

State Sen. Timothy J. Grendell, R-Chesterland, said the law makes it easier for the public to monitor the whereabouts of registered sex offenders on the Internet and through mandatory notices to neighbors.   "The policy decision, from my perspective, was based on protecting public safety," Grendell said.  "The timing was based on us being told we'd get an additional 10 percent (in Adam Walsh funding) if we did this by a certain time. We would not make public policy just to get money."

Is there a "middle ground" on California's sex offender residency restrictions?

The question in the title of this post is prompted by this press report on yesterday's argument before the California Supreme Court concerning the state's sex offender residency resrictions.  Here are the details:

The California Supreme Court appeared to be searching for a middle ground Tuesday in a dispute over whether thousands of formerly imprisoned sex offenders must live at least 2,000 feet from parks and schools, a voter-approved restriction that would exclude them from most of the state's urban areas.

A state lawyer argued that Proposition 83, a November 2006 initiative, imposed the residency restriction on all 65,000 registered sex offenders in California and subjected them to prosecution for violations.

An attorney for four paroled offenders, two from the Bay Area, said the restrictions covered, at most, only those who committed sex crimes after Prop. 83 passed — and made little sense even for that group.  "It is not rationally related to the harm the voters were trying to prevent," attorney Ernest Galvan told the court. The law limits only where ex-convicts can live, and doesn't prohibit them from entering parks or school grounds where children would be found, he noted.

Kenneth Mennemeier, lawyer for the state Department of Corrections and Rehabilitation, countered that Prop. 83 reflected voters' "desire to protect children from the threat of recidivism that sex offenders pose."  He said it should be interpreted broadly to apply to anyone who has ever been convicted of a sex crime requiring registration.  Those crimes range from indecent exposure to forcible rape.

Justice Marvin Baxter said both sides were "arguing extremes."  The court spent most of the one-hour hearing debating how the initiative affects offenders who were on parole when Prop. 83 passed, those who were paroled afterward, and those who have completed parole supervision but are still subject to the lifetime registration requirement.

The state says about 6,800 registered sex offenders are now on parole.  Nine months after Prop. 83 passed, parole officers began ordering them to leave their homes if they lived less than 2,000 feet from a park or school, and arresting them for parole violations if they stayed.  Under those rules, "San Francisco is one big exclusion zone," Galvan said. Because authorities have refused to let parolees move to other counties, he said, their only choices are homelessness or prison.

Baxter noted, however, that Galvan's four clients had all been paroled before Prop. 83 passed, and would not be subject to the residency restrictions if the court interpreted the measure to cover only post-November 2006 parolees.  That was the most logical interpretation of the measure, said Baxter, generally the court's most conservative justice.

"Man Charged With Filming Sex With 14-Year-Old Says He Is 'Going To Jail For Love'"

The title of this post is the headline of this interesting federal sentencing story from Tennessee, which actually raises some interesting post-Booker sentencing issues.  Here are the basics:

A 23-year-old Winchester man was sentenced in Chattanooga Federal Court on Monday to serve four years and four months in federal prison for filming sexual encounters with a 14-year-old girl. Mary Ellen Coleman, attorney for Brad A. Davis, said he "cared" for the girl and had no intention of distributing the videos of her.

Davis, after being sentenced by Judge Sandy Mattice, said, "I guess I'm going to jail for being in love."  Davis had been charged after a Winchester attorney turned a tape over to the Winchester Police Department.  The attorney said he got it from a member of the victim's family.

Authorities said Davis made a video of the girl having consensual sex with him and also used his cell phone to film her performing a sexual act on him.  He also used a Nikon camera to take 22 photos of her nude in provacative positions....

The sentencing range for Davis was 46-57 months.  Attorney Coleman asked for a lighter sentence, noting that former Baylor teacher/coach got diversion after having sexual encounters with a 16-year-old girl.  Prosecutor John MacCoon said that was in state court, and he said federal judges are not to take state sentencing into account but to focus on uniformity in the federal system....

Prosecutor MacCoon said the Davis situation became a federal case rather than a statutory rape charge in state court because he took the videos and pictures.  He pleaded guilty to possession of child pornography.

California Supreme Court to hear challenge to sex offender residency restrictions

As detailed in this local article, which is headlined "California Supreme Court to review Jessica's Law," an important challenge to California's sex offender residency restrictions is to be heard this week. Here are the basics:

The state Supreme Court on Tuesday is considering whether the residency restriction contained in Proposition 83 is so broad and intrusive that it violates the constitutional rights of registered sex offenders. Under the law, critics say, many sex offenders cannot find a place to live in urban areas across the state and are effectively forced into homelessness....

"The problem with this law," said attorney Ernest Galvan, who represents S.P and three other convicted sex offenders, "is it arbitrarily banishes people from home and family without any regard to whether the past offense in any way was even related to children."

Gov. Arnold Schwarzenegger, a strong backer of Proposition 83, is defending the law, along with the state Department of Corrections and Rehabilitation, which has largely been responsible for enforcement through its parole units. The administration's lawyer declined to comment but in court papers has defended the law's constitutionality. "The residency restriction is designed to protect children, not to punish the offender," state lawyers wrote in court papers.

Jessica's Law, however, has been openly questioned for its effectiveness, even in the law enforcement community, and also for its legality. More than 20 states have adopted similar provisions, with courts taking a mixed view of whether they pass legal muster.  Most courts, including two federal courts in California, have found the laws cannot be applied retroactively to sex offenders who committed their crimes and were released from prison before the laws were passed.

Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts.

At the local level, police departments find the law largely unworkable. San Jose police Sgt. Ed Pedreira, head of the city's sex offender unit, noted that Proposition 83 didn't even create a separate crime for violating the residency restriction.  "The intention of the law was good," Pedreira said.  "But what it leaves us with is no teeth in the law to where we can go out and actively enforce it." 

"Let juries determine sex offenders’ fate"

The title of this post is the headline of this interesting new editorial in the Boston Globe.  Here is how it begins and ends:

Middlesex District Attorney Gerard Leone wants state lawmakers to give juries more say in whether some sex offenders should be civilly committed after completing their criminal sentences.  It’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law.

In Massachusetts, convicted sex offenders who complete their sentences get to choose whether a judge or jury will determine if they suffer from a mental abnormality that makes them a likely risk to reoffend.  Such a finding results in confinement and, equally important, treatment in Bridgewater State Hospital.  Leone wants the Legislature to change the law so that either the defendant or the prosecutor can demand a jury trial, as is the case in other civil matters.  Leone notes that juries in Middlesex County since 1999 have been almost twice as likely as judges to commit offenders for periods that can last from one day to life.  But juries are not acting reflexively, either.  In a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous.

This is a challenging area in which judges or juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future.  Experts argue over whether convicted sex criminals are more likely to reoffend than other criminals. But the law already recognizes the uniquely compulsive nature of sex crimes by allowing for civil commitments in limited cases.  It is only reasonable, therefore, to expect that the state should be on equal footing with the convicted sex offender when deciding how those cases should be heard initially.  That’s how it works already when convicted sex offenders get to appeal their commitment after one year — either the offender or the prosecutor can demand a jury trial....

The cases are often awash in conflicting medical testimony and legal fine points.  Witness that of David Flavell, a 40-year-old homeless man accused of trying to rape a woman last month in a bathroom stall at Massachusetts General Hospital. Flavell’s record is littered with sexual offenses ranging from indecent exposure and lewdness to an attempt to rape a woman outside an American Legion Post in Methuen.  Twice prosecutors had tried to convince judges to commit Flavell.  Twice they failed, based on conflicting medical reports and Flavell’s apparent willingness to engage in treatment.  Would a jury have seen it the same way?  It’s not certain.  But it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens.

This is no small matter.  Community acceptance of verdicts is a pillar of the legal system, as any judge would attest.  And jurors have proven time and again that they are up to the task of fact-finding when deciding difficult cases.

As regular readers may know, I am a fan of greater jury involvement in the operation of various aspects of the criminal justice system.  I am intrigued to learn that juries already can and do play a role in Massachusetts' sex offenders civil commitment scheme, and I am pleased to see this editorial make an effective case for this kind of community involvement in tough criminal justice decisions.

New US Sentencing Commission report on the history of federal child porn guidelines

The US Sentencing Commission today posted here an important new report on the hottest topic in federal sentencing right now.  The new report is titled simply "The History of the Child Pornography Guidelines," and it runs over 50 pages.  The report's concluding summary provides an effective overview of what this document says and does:

This report provides a history of the child pornography guidelines, which were initially promulgated in 1987 and substantively revised nine times in the following 22 years.  The most recent guideline revision is pending before Congress and, absent congressional action, will become effective on November 1, 2009.  Congress has demonstrated its continued interest in deterring and punishing child pornography offenses, prompting the Commission to respond to multiple public laws that created new child pornography offenses, increased criminal penalties, directly (and uniquely) amended the child pornography guidelines, and required the Commission to consider offender and offense characteristics for the child pornography guidelines.

Sentencing courts have also expressed comment on the perceived severity of the child pornography guidelines through increased below-guidelines variance and downward departure rates.  Consistent with the Commission’s duties to review and revise the guidelines, and the Supreme Court’s direction, the Commission has established a review of the child pornography guidelines as a priority for the amendment cycle ending May 1, 2010. This report is the first step in the Commission’s work on this priority.

This looks like a must-read for any and everyone who has been following the craziness surrounding federal child porn sentencing over the last few years.

Some related recent federal child porn prosecution and sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• Is there an ivy-leaguer exception to federal child porn charges?
• More examples of sentencing uncertainty surrounding federal child porn cases
• Is there a law student sentencing discount for federal child porn charges?
• Judge Adelman operationalizes deconstructed child porn guidelines
• Another notable child porn sentencing decision
• Another notable sentencing opinion in a child porn downloading case
• Acquitting and downloading some additional USSC priorities
• Thoughtful opinion focused on bad health as the basis for a below-guideline sentence
• Effective review of federal uptick in child-porn prosecutions
• Another puzzling report on federal child porn sentence
• Notable long child porn sentence upheld by split Sixth Circuit
• Remarkable coda at end of First Circuit opinion affirming child porn sentence

Kentucky AG talking about appealing sex offender residency restriction ruling to SCOTUS

I have long thought it's only a matter of time before the US Supreme Court is called upon to resolve various constitutional issues that arise in the enforcement of state residency restrictions on sex offenders.  And, as detailed in this local article, which is headlined "AG To Ask US Supreme Court To Hear Sex Offender Law: Kentucky Supreme Court Says Part Of Law Unconstitutional," an ex post facto case from the Bluegrass State could be on its way to the Justices. Here are the basics:

Hundreds of sex offenders could be living next to schools and day care centers. Kentucky Attorney General Jack Conway said that could happen if a state law is not protected. Conway said he's going to file a request for the U.S. Supreme Court to hear the case.

It came after Kentucky's Supreme Court ruled the 2006 law limiting where sex offenders can live is unconstitutional for offenders whose cases pre-date that law....

In 2006, a new Kentucky law went into effect limiting all sex offender registrants ... from living within 1,000 feet of a school a day care center or a playground. The state's Supreme Court ruled it was unconstitutional to enforce that law with offenders who were registered before the law went into effect.

Conway has asked the Supreme Court to delay implementing that ruling until the U.S. Supreme Court decides whether or not to review the case. In a statement released Thursday, Conway said, "I have serious concerns about how the Kentucky Supreme Court's ruling will affect public safety. And in the interest of protecting Kentucky families, I will ask the U.S. Supreme Court to hear our case."

The ruling that the Kentucky AG is eager to appeal came in in Kentucky v. Baker, No. 2007-SC-000347-CI (Ky. Oct. 1, 2009), and it is available here.

Effective new opinion discussing restitution in federal child porn possession cases

I posted hereearlier this week an effective newspaper report on efforts by some persons who were victimized in "popular" child porn to obtain restitution from defendants being sentenced for possessing this child porn.  Coincidentally, on Monday, Maine US District Judge George Singal issued a long and thoughtful opinion on this topic in US v. Berk, No. 08-CR-212-P-S (D. Maine Oct. 26, 2009) (available for download below). Here are some notable excerpts from the opinion (with some cites omitted):

It has long been uncontroversial to order restitution when the defendant is convicted of the actual physical abuse of a child or of producing images constituting child pornography. But victims and the Government have only recently begun seeking restitution from the end-users or possessors of child pornography. Indeed, counsel for “Amy” represents that the first restitution order against a defendant convicted only of possession of child pornography was entered in June of this year. (Amy’s Restitution Br. at 78.)

A review of the cases decided thus far shows that victims’ success in obtaining restitution has varied significantly in district courts across the country.6 At one extreme, courts have awarded the entire amount requested by the victims without any discussion as to proximate causation.  See, e.g., United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *4 (S.D. Fla. Sept. 2, 2009). At the other extreme, some courts have declined to order any restitution based on the lack of evidence showing a quantifiable loss proximately caused by the offense of conviction.  See, e.g., United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009).  Some courts appear to have adopted a set amount for each defendant convicted of possession of child pornography. For example, the Central District of California seems to routinely order restitution of $5000 while the Eastern District of California routinely orders restitution of $3000.  See United States v. Brown, No. 2:08-cr-1435-RGK-1 (C.D. Cal. filed Oct. 5, 2009) (awarding $5,000); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009).  Additionally, in some cases, the Government and the defendant have stipulated to a restitution amount.  See United States v. Granato, No. 2:08-cr-198 (D. Nev. filed Aug. 28, 2009)....

It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm.  The difficulty lies in determining what portion of the Victims’ loss, if any, was proximately caused by the specific acts of this particular Defendant.

Having reviewed all of the evidence, the Court finds that there is nothing in the record showing a specific loss that was proximately caused by this particular Defendant’s possession of the victims’ images.  The losses described the by the Victims are generalized and caused by the idea of their images being publicly viewed rather than caused by this particular Defendant having viewed their images. In the documentation supporting the Victims’ restitution requests, there is no mention of the impact that learning of Mr. Berk’s offense had on either of the Victims.  In fact, there is no mention of Mr. Berk at all....

Because the Government has failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction, the Court declines to enter a restitution order in this case.

Download Berk ruling on CP Restitution

Some related recent federal child porn prosecution and sentencing posts:

• The latest (beneficial?) litigation front in child porn downloading battles
• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• More examples of sentencing uncertainty surrounding federal child porn cases

UPDATE:  A helpful readers sent m a copy of a revised amended opinion in Berk, which can be downloaded below:

Download Amended Order on Restitution in Berk

Supervised sex offenders required to attend education meeting on Halloween night

In recent years in lots of communities, sex offenders are formally required or highly encouraged to turn off their lights and/or otherwise avoid any involvement in Halloween activities.  Now, as detailed in this local article from Alabama, it seems that many jurisdictions are now taking more proactive measure to keep sex offenders out of the community and out of sight on Halloween:

A new policy from state and federal probation offices is aimed first at helping educate and reintegrate sex offenders and secondly to safeguard the community, said U.S. Supervisory Probation Officer Jeff Purcell.

Felony sex offenders are required by the State of Alabama Probation and Parole Office and the U.S. Probation Office to report to an undisclosed location for a meeting from 5:30 to 9 p.m. Saturday, according to the Probation Office of the U.S. District Court, Northern District. This includes felony sex offenders under federal supervision in Madison, Morgan, Lawrence counties and Madison County offenders under state supervision.

“We thought it would be comforting for the community to know these folks are not at home on Halloween night and they don’t have to worry about kids going to their doors,” Purcell said.

The meeting includes an educational program for offenders, with discussions including updates on sex offender laws, the Adam Walsh Act and rehabilitation opportunities, as well as training for employment. “This operation is a proactive venture to provide education and training to sex offenders, improve accountability and behavior change, as well as safeguard the community in that these sex offenders will not be participating in Halloween activities,” Purcell said.

Previously, felony offenders were required only to turn off their lights, not answer the door or hand out candy on Halloween. “We would have to check up on them and make sure they were doing that,” Purcell said. “It’s difficult to get to all the houses.” The meeting is required only for supervised offenders. “We don’t have any authority over those who are not under supervision,” he said.

Interesting debate over "Guns as Smut" thanks to Columbia Law Review

The October 2009 issue of the Columbia Law Review has an interesting article by Darrell A.H. Miller, which is titled "Guns as Smut: Defending the Home-Bound Second Amendment." Here is a synopsis:

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms.  But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for “future evaluation.”  This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment right to keep and bear arms for self-defense the same as the right to own and view adult obscenity under the First Amendment — a robust right in the home, subject to near-plenary restriction by elected government everywhere else.

In addition, the Sidebar feature or the CLR has this commentary about the article from Eugene Volokh.  His response, which is titled simply "The First and Second Amendments," makes this key point:

The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home.  That premise does not extend to private gun ownership under Heller.

And naturally Guns as Smut’s unsound premise leads to unsound results.  If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession.

Professor Miller gets in a final word through this short Sidebar reply.

UPDATE:  Folks can access the full draft of "Guns as Smut" at this SSRN link.