Sentencing Law and Policy

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.

How should positive behavior in prison impact resentencings after Booker?

This local article about an interesting sentencing hearing spotlights a number of challenging conceptual issues that surround federal resentencings in the post-Booker world.  The piece caught my eye due to its headline, "Victim helps press for longer sentence for nurse in 'nude therapy' case," but these snippets spotlight the array of legal issues this case presents:

Linda Kaufman, a nurse convicted of defrauding and abusing the mentally ill residents of the Newton home she ran with her husband, Arlan, told a federal judge she has been a positive influence on fellow inmates during her four years in prison.   But a former resident of the home said Kaufman still needs to be held accountable for what happened there.

Not because she "married a monster," said Nancy Jensen, but because Kaufman was a registered nurse.   "She was to do no harm, and she was to advocate for the people that she was to help," Jensen said.

The statements came Tuesday in the courtroom of U.S. District Judge Monti Belot, who has been required by the 10th Circuit Court of Appeals to reconsider factors that could lengthen the seven-year prison sentence he originally imposed on Kaufman. After a two-hour hearing, Belot took the matter under advisement and said he'd make his ruling in a written memorandum. He didn't say when he'd issue it.

Linda Kaufman, 66, and Arlan Kaufman were convicted in November 2006 of enslaving the home's residents, forcing them to work naked and perform sex acts. Belot gave Arlan Kaufman a 30-year sentence and Linda Kaufman a seven-year sentence.

The appeals court said Belot should reconsider Linda Kaufman's sentence because she was alleged to have used a stun gun, which the government said was a dangerous weapon; because the offenses involved a large number of vulnerable victims; and because she obstructed justice by interfering with a federal audit and investigation of the home.

The government has recommended a sentence of at least 20 years. Kaufman's attorney, Steve Gradert, asked Belot to reimpose his original sentence. That sentence was below sentencing guidelines. Belot had shown her leniency, believing she was manipulated by her husband....

Jensen, in an emotional statement, said the Kaufmans "did horrible things to us in the name of mental health and in the name of taking care of clients." Linda Kaufman was a nurse who was responsible for taking care of people with mental illnesses, she said. "The harm that she did is not easily seen because it was emotional and affected our behavior and our belief systems," Jensen said. "She used our diagnosis to blame us and abuse us. So, therefore, Linda knew how to hide the harm she caused us and blamed us for."...

Linda Kaufman told Belot that during her confinement she had done a lot of volunteer and self-improvement activities.   She had coexisted peacefully with other inmates, had no disciplinary reports, worked faithfully at her prison jobs and received high scores for her job performance and cooperation, she said. She also participated in continuing education and religious classes. She said she won a humanitarian award last year for her work with inmates and for her quilting.

Kaufman said if she had another chance, she "would do many things differently," but she was looking to the future. "I long to join, and re-join, my grandchildren as soon as possible," she said.

Important sentencing issues ranging from co-defendant influence and disparity to the impact of the victim's testimony to the significance of the defendant's status as a nurse are all richly presented in this notable case.  But, as highlighted by the question in the title of this post, I am especially interested to hear views on whether readers think Linda Kaufman's positive behavior while incarcerated can (or should or must) be a significant consideration in her resentencing in light of Booker and the terms of 3553(a).

The latest (beneficial?) litigation front in child porn downloading battles

I just found this effective local article discussing what is becoming an important and very interesting new front in the battle over child porn prosecution and sentencing.  The piece is headlined "Victim of child porn seeks damages from viewers," and here are excerpts:

The Misty series is one of the most popular and readily available kiddie porn videos on the Internet. It's considered a collector's item among pedophiles. Downloading it is a felony. Amy, now 20, remains traumatized by the crimes but became devastated upon learning they have been distributed worldwide. Officials have identified 750 individuals who possess the Misty series, but they believe tens of thousands of copies are out there.

In a novel approach to getting help, she and an attorney have begun petitioning federal courts for restitution against anyone convicted of possessing the Misty series....

The Violence Against Women Act of 1994 includes a section requiring restitution for victims of sex crimes. Whether that extends to defendants convicted of downloading and viewing child pornography remains a hotly contested question across the country. Some judges have awarded Amy millions; others have given her nothing.

Amy, who lives in the Northeast, seeks restitution for physical, psychiatric and psychological care, occupational therapy, transportation, housing, child care, lost income, attorneys' fees and other losses that might result from the crimes that have occurred.  She has described her horror in a letter to courts [which is available here] where she is seeking restitution....

Even though the restitution law has been on the books for 15 years, no one tried to collect from defendants who downloaded and viewed the videos until this year.  Those who produced the videos, such as Amy's uncle, have long been held accountable for payments to the victims. 

Only recently has the Department of Justice begun notifying victims such as Amy by letter that they could be entitled to restitution. More than 2,600 child victims have been positively identified.  Amy and another victim who was brutalized on film, in what's known as the "Vicky" series, began filing requests for restitution earlier this year.

In 20 cases, they have had mixed results.  A federal judge in Florida ordered a defendant to pay Amy $3.2 million, nearly the full amount she sought based on estimates for lost wages and mental health treatment for the rest of her life, but that case is on appeal.  Even if she wins, the defendant, James Freeman, is serving a 50-year prison term and has few assets.

Some child pornography defendants, such as Freeman and Norfolk's Shon Walter, who is serving 23 years in federal prison for looking at kiddie porn, are serving more time than Amy's uncle.  The uncle, convicted of repeatedly raping Amy, filming the attacks and selling the videos, is eligible for parole in 2011 after serving a minimum of 12 years.

Another judge in Florida awarded Amy her full $3.6 million request, but that case is also on appeal.  Most judges awarded Amy and Vicky minimal damages of between $1,000 and $3,000.  Federal judges in Oregon, California, Hawaii and Arkansas and in the Alexandria federal court denied restitution awards for Amy and the Vicky series victim.  The Arkansas judge found that there was no reasonable way to assess a restitution amount, that the victim was not identifiable and that there was no proof of a "causal link" between viewing the images and specific injury to Amy.

The government has appealed that case, which could set up a showdown at the U.S. Supreme Court over the conflicting rulings. 

As regular readers know, I am generally a fan of financial penalties as an alternative to long imprisonment terms.  Consequently, my first instinct is to be support of efforts by child porn victims to seek restitution awards from even those who only download these images.  That said, I do not think it makes much sense for individual downloaders to be on the hook for huge restitution payments. 

Moreover, I hope federal judges eager or inclined to award restitution in this kinds of cases ought also to seriously consider short prison sentences in service to the provisions of 18 USC 3553(a)(7), which require a judge to consider the "need to provide restitution" to victims at the time of sentencing.  It seems obvious to me that long prison terms necessarily will diminish the ability of a defendant to be able to make reasonable restitution payments.

Some related recent federal child porn prosecution and sentencing posts:

• 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
• Judge Adelman operationalizes deconstructed child porn guidelines
• Effective review of federal uptick in child-porn prosecutions

Extended First Amendment analysis of whether sex offenders can be banned from church

Over at Dorf on Law, Mike Dorf has this post with an extended discussion of the question in the title of his post: "Can Sex Offenders Be Barred From Church?"  Because I am not a First Amendment expert, I cannot take issue with the much of his constitutional analysis, but I was both struck and troubled troubled by Mike's apparent willingness to embrace the idea that a state always has a strong justification for seeking to keep any and all sex offenders away from any and all places in which children might be found. 

Specifically, at the end of his post, Mike says this: "Is there a compelling interest in keeping registered sex offenders away from children?  Of course."  I am left wondering if "compelling interest" analysis is this easy.  Some (perhaps many) "registered sex offenders" have not harmed a child and likely pose no special threat to children.  Registered sex offenders include  folks whose only victim was an adult and who engaged in fully consentual sex acts (such as a female prison guard who had sex with one of her prisoners).  Do states so obviously have a "compelling interest" keeping these kinds of registered sex offenders away from all children in all settings?

More fundamentally, is Mike suggesting that any and all registered sex offenders could be categorically prohibited from ever going to a public sporting event or a political rally or a movie or even walking down the street because children might possibly be at the event or the rally or the movie or the street?  I fully understand the gut instinct that we want to protect children from even marginally risky people in inherently risky places, but I am troubled by any analysis that is so quick to assume that all registered sex offenders are always so risky that they can and should be treated as if they were radioactive. 

Some recent related posts:

• "Banned from churches, sex offenders go to court"
• Pastor and city leaders fighting over sex offender working at church in California
• WWJD about the conflict between religion and restrictions on sex offenders?
• "Should Freedom of Worship Apply to Sex Offenders?"
• Time magazine asks "Should Sex Offenders Be Barred from Church?"

"Facebook membership could prove costly for sex offender"

The title of this post is the headline of this notable local article from New York.  Here are some of the particulars from the start of the article:

A convicted sex offender is facing up to three years in prison for neglecting to disclose his past while joining the Facebook social networking site.  Angelo Oesch, 25, of Colonie, also faces 10 years post-release supervision for failing to register and violating his probation.

He admitted having two Facebook accounts during a Tuesday appearance before Judge Thomas Breslin in Albany County Court.  Oesch had also joined the eHarmony dating Web site, as well as the AIM instant messaging service for America Online.

Authorities say Oesch was convicted in June of committing a criminal sex act for having sexual contact with a person less than 15 years old.  He is a Level 1 offender, which is considered the lowest risk of the three tiers of offenders. He has been living in a motel on Central Avenue in Colonie, authorities said.

Though this particular defendant does not seem well positioned or interersted in bringing a constitutional challenge to these kinds of charges, I suspect it is only a matter of time before some sex offenders start claiming that broad prohibitions on their on-line activities raises First Amendment issues.

Federal sentence for receiving child porn includes forfeiture of home

This local article from Kentucky, which is headlined "Lexington man sentenced to 15 years, forfeits home in child the sentencing of a child porn case. Here are the details:

A Lexington man must spend more than 15 years in prison and forfeit his Chevy Chase home after pleading guilty to child pornography charges, a federal judge ruled Tuesday.

Joseph Robert Leitner, 62, pleaded guilty in June to one charge of receiving child pornography.  He admitted collecting child pornography for years and had computers and CDs that contained more than 30,000 images of child pornography, some involving children as young as 6, according to his plea agreement.  There were approximately 100 CDs and several computers seized during the search of Leitner's residence in June 2008.

Senior Judge Karl S. Forester sentenced Leitner Tuesday to 188 months in prison.  The federal government will also seize Leitner's home at 417 Cochran Road because of the high volume of images and the length of time Leitner used his home to download and view child pornography.

Leitner is the first defendant to forfeit his home because of a child pornography conviction in the Eastern District of Kentucky, according to the U.S. Attorney's Office for the Eastern District of Kentucky. Assistant U.S. Attorney Hydee R. Hawkins, who prosecuted Leitner, said the sentence sends a message to child predators that "we are going to take the very place you used to exploit children."

Leitner said during sentencing that he had not downloaded or watched child pornography since 2000. "They probably were dusty as the devil when you guys found them," Leitner said of the CDs seized from his home. "I hadn't watched them in years."...

A man who said he was molested by Leitner more than 50 years ago also testified during Tuesday's sentencing.  Another man said testified that Leitner molested him for six years, beginning when he was 3.

Should there be an age floor for when a sex offense requires registration?

In the Graham and Sullivan cases, the Supreme Court will be struggling with whether and how to set a constitutional floor on the age at which an offender can be given an LWOP sentence.  This local article, headlined "Group opposes sex-offender registry for youths," spotlights the question of whether there ought also be a floor for when a young sex offender is subject to registration requirements. Here are excerpts from the piece, which also discusses other aspects of state resistance to federal sex offender registration provisions:

Legislation that requires states to publish the names and photos of minors who have been convicted of sex-related offenses in a nationwide public registry is being discouraged by a Washington, D.C.-based group.

Some states already include minors as young as 14 in their own statewide sex-offender registries, but legislation known as the Adam Walsh Child Protection and Safety Act of 2006 is calling for all states to take up the practice for a national registry.  States that don't comply with the act risk a decrease in federal criminal justice funding.  Yet, only one state and one tribe have complied completely since Congress the act became law in 2006.

Local lawyers see a problem with lumping minors with adults in a public sex offender registry. "We're still hoping that part of the act doesn't get passed," said Chris Gardner, chief deputy public defender in San Bernardino County's Human Services Division.

Research does not support the stance that a minor convicted as a sex offender is going to do the same thing as an adult, Gardner said. Studies show the opposite, and the vast majority of kids don't reoffend, he said.  "If a kid's crime is tried in Juvenile Court, where the idea is rehabilitation, it doesn't make sense for there to be any kind of long-standing history or sex registry," Gardner said.

Justice Policy Institute recently reissued a report that details the harm that public registries have on minors, a demographic where criminal justice usually aims for rehabilitation. "It's extremely detrimental to the youth," said Nastassia Walsh, a research associate at JPI.  "It isn't proven to improve community safety at all. It can really harm a kid's chances of having a `normal life."'...

Other states have cited numerous reasons for not complying, including the cost and the need for more equipment, resources and personnel.  A Congressional Budget Office analysis from December 2005 reported the act to cost $1.5billion to enact between 2006 and 2011.

Besides cost, California cited other reasons for not complying with the act: statutory barriers, juvenile privacy issues and constitutional privacy protections, according to an April survey conducted by SEARCH, a national consortium for justice information and statistics.

The National Center for Missing and Exploited Children, which is behind the Adam Walsh Act, estimates there were about 670,000 registered sex offenders in the United States.  But about 100,000 are lost in the system....

Prosecutors say only a limited number of sex-related juvenile crimes in California even qualify for a stay in the Department of Juvenile Justice and publishing in a public registry.

Karen Bell, a deputy district attorney who handles juvenile offenses in San Bernardino County, said she didn't anticipate there would be much support in the state for the labeling of minors through a public registry. "I think the reaction of that of the Legislature of California, and certainly the bench and the bar would be very much against it," Bell said.

Friday forum: What kind of sentence would you give to Roman Polanski?

The question in the title of this post is inspired by this new FindLaw commentary, which is headlined "What Kind Of Sentence Is Roman Polanski Facing?".  Here is how the commentary starts and ends:

Film director Roman Polanski's fate has been much debated recently. Polanski, as readers are likely aware, was arrested in Switzerland and now faces extradition to California, where he pled guilty to having had sex with an underage woman in 1977, but fled before being sentenced. The most exceptional current reporting on this case has been in The Daily Beast, by former Los Angeles County prosecutor Marcia Clark. She revealed that her former colleague's claim that he had improperly contacted Polanski's sentencing judge was false, thus killing Polanski's alibi for fleeing. And more recently, she has reported on the truly voluntary nature of the Polanski plea.

Facts, however, have had little impact on Polanski's supporters -- who include Ann Appelbaum at the Washington Post (whose husband is a Polish official lobbying for Polanski's release, a fact she failed to mention), Joan Shore at the Huffington Post (who is a friend of Polanski), and many in the Hollywood community. Others, like Kate Harding (who has no ties to Polanski) at Salon, believe that this captured fugitive should face the music for his admitted criminal behavior. I feel confident that Harding's view represents that of the overwhelming majority of those who have thought carefully about this subject.

A front-page story entitled "In Polanski Case, '70s Culture Collides with Today," which ran in the October 10, 2009 New York Times raised, but did not answer an interesting question: Assuming Polanski is finally sentenced, what sexual standard would the judge apply – the standard applicable at the time of the crime or today's tougher standard?...

Based on Professor [Lynn] Branham's analysis, not to mention his fugitive status, sentencing will no doubt be much worse for Polanski now than it would have been in 1977-1978, a fact that he and his attorneys surely appreciate. No doubt Polanski is looking for some way, any way, to get back to France, which refuses to extradite its citizens. Last time, Polanski escaped by simply jumping on a plane. This time, it will require all of the creative directing talents he can muster, given the script of this story.

This commentary does a solid job describing the basic issues likely to impact Polanski's eventual sentencing fate, but on a Friday afternoon I thought it might be fun for folks to use the comments to suggest the kind of sentence they would like to see given to Roman Polanski. Obviously, there are no right or wrong answers here, and my students know I always give extra points for creativity.

Time magazine asks "Should Sex Offenders Be Barred from Church?"

In this new piece, headlined "Should Sex Offenders Be Barred from Church?," Time magazine asks a question that always seems certain to prompt lots of different reactions from lots of different people in and outside the criminal justice system.  Here are some notable excerpts from this Time piece:

North Carolina is a proud member of the so-called Bible Belt of states that take their religion seriously.  So some eyebrows were raised when James Nichols was arrested for attending church.

His offense? Nichols, a convicted sex offender, had chosen to worship at a church that has a nursery where kids play while their parents pray.  Now Nichols, 31, who only recently got out of prison, is fighting back, challenging the legality of a new law that took effect in December prohibiting registered sex offenders from coming within 300 ft. — nearly a football field's length — of any facility devoted to the use, care or supervision of minors.

As more states have adopted laws regulating where sex offenders can go, it was only a matter of time before the noble goal of protecting children butted heads with the sacrosanct First Amendment right to worship where and when you choose.  Which takes precedence?

"This law makes it illegal to do things that are not wrong, like go to church," says Glen Gerding, Nichols' attorney. "When does the state stop interfering with a church's business? Will pastors be charged as an accessory for letting a known sex offender sit in a front-row pew and worship?"...

As soon as North Carolina's law went into effect in December, Katy Parker, legal director for the state's American Civil Liberties Union (ACLU) chapter, started fielding calls.  Offenders wanted to know if the law prevented them from going to church; pastors worried it would keep worshippers away.

Parker says the law was so vague that she couldn't offer advice, but she did put out the word to defense attorneys that should they wind up representing someone accused of breaking the law, the ACLU wanted to hear about it.  Nichols' March apprehension is one of two religion-based arrests that Parker is aware of.  "It's unbelievable that the N.C. state legislature and the people of North Carolina would not want someone to go to church for spiritual reasons and for rehabilitative reasons," says Parker.

But others think the ACLU is missing the point.  The premise of the law is sound, says Laurence Tribe, a constitutional-law expert at Harvard.  "If the moment you enter a church you don a cloak of immunity from the rule of law, then churches would become sanctuaries for crime," says Tribe....

Only time — and judges' decisions — will determine whether the new law bars offenders from attending any church (where children might attend) or just those with child-care facilities. What is clear is that those who hammered out the small print of the legislation are sticking by it.

David Hoyle, the state senator who sponsored the bill, says it took two years to pass, partly because legal advisers took care to word it to withstand legal challenges. The law is named for Jessica Lunsford, the Florida girl who was kidnapped and killed in 2005 by a convicted sex offender. Lunsford was born in Hoyle's district and attended school in the tiny town of Dallas, where Hoyle lives. He still talks to her father regularly; her cousin will serve as a senate page for Hoyle next year.

"I got e-mails calling me the anti-Christ and saying I'm going to hell, but we want to make the law just as strong as we can," says Hoyle. "We feel it is a good law.  When a person takes advantage of a child, I don't worry about their constitutional rights."

I am not sure what I find more notable and remarkable in this Time piece: (1)  the fact that one of the famous (supposedly liberal) constitutional scholars, Professor Larry Tribe, is quoted in this piece apparently defending the soundness of a law that seems to make it a crime for certain people to go to church, or (2) that a state senator seems to be proud about not having any worry about some persons' constitutional rights.  I suppose I am not all that surprised by the state senator's quote, but I was certainly surprised to see Professor Tribe quoted in defense of the prosecution of James Nichols for attending church.

Some recent related posts:

• "Banned from churches, sex offenders go to court"
• Pastor and city leaders fighting over sex offender working at church in California
• WWJD about the conflict between religion and restrictions on sex offenders?
• "Should Freedom of Worship Apply to Sex Offenders?"