Sentencing Law and Policy

Potent DOJ response to ABA Journal article about federal child porn sentencing

As noted in this post last month, the June issue of the ABA Journal includes this long article on the debate over federal child porn sentencing titled, "A Reluctant Rebellion."  I just learned about this extended response to the article coming from Alexandra Gelber, the Assistant Deputy Chief of Child Exploitation and Obscenity Section of the Criminal Division of the US Department of Justice. Here is how the extended response starts:

I write in response to Mark Hansen’s article “A Reluctant Rebellion,” which appeared in the June 2009 issue of the ABA Journal.  Although Mr. Hansen’s article raises questions about the child pornography sentencing guidelines, his piece speaks to a much more fundamental question about the legitimacy of the crime at issue.  While Mr. Hansen does not explicitly argue that the collection, trade, viewing, and possession of images depicting the sexual exploitation and abuse of children should be legal, he does strongly question whether the crime should be treated as seriously as it currently is under federal law. Indeed, he writes, “Critics say the mandatory and recommended penalties for child porn offenses under the guidelines far exceed the seriousness of the crime committed by the typical offender who is swapping and downloading child porn online with other like-minded individuals in the presumed privacy of his own home.”

Mr. Hansen’s article perpetuates fundamental misunderstandings about the nature of the crime, the offenders, and the law.  When properly understood, the substance and structure of the criminal provisions and sentences for these pernicious crimes show an appropriate response to an exploding crime problem.

Some related federal child porn prosecution and sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• 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

Judge Alex Kozinski cleared of misconduct (but my illegality concern is not addressed)

The blogosphere is buzzing with the news that the Third Circuit, which was tasked with reviewing misconducts complaint against Judge Alex Kozinski, has concluded its investigation via this just-released opinionin which Judge Kozinski is admonished for poor judgment, but cleared any official judicial misconduct.  Specifically, effective coverage can already be found at Above the Law and How Appealing and Patterico's Pontifications.

Though the outcome of this matter strikes me as just right, I am a bit disappointed that the Third Circuit opinion and related commentary completely dodges the dicey question of whether any of the files possessed by Judge Kozinski might have technically been child pornography or illegal obscenity.  The Third Circuit opinion notes that some content Kozinski had was "sexually explicit material [that] is undoubtedly offensive to many."  Slip op. at 27.  But nowhere does the opinion confront the (real?) possibility that this content was illegal to possess under federal law because it could fit the technical definition of child pornography or illegal obscenity under federal law.

I am not eager to assail Judge Kozinski for his behavior, but rather eager to highlight how expansive the technical definitions of child pornography and illegal obscenity can be under federal law.  For that reason, I am not really surprised (bit still remain disappointed) that the Third Circuit and others are eager to dodge these issues altogether.

Some related posts:

• What should we make of Judge Kozinski's porn postings?
• Should defendants facing long sentences for downloading child porn be filing Kozinski claims?
• Effective review of federal uptick in child-porn prosecutions
• Is there a law student sentencing discount for federal child porn charges?
• Is there an ivy-leaguer exception to federal child porn charges?

Second Circuit blesses future medical expense restitution in child porn sentencing

The Second Circuit has an intriguing little restitution ruling today in US v. Pearson, No. 07-0142 (2d Cir. July 2, 2009) (availalbe here).  Here is how the opinion starts:

Defendant-appellant Abraham Pearson appeals from a judgment entered January 12, 2007, in the United States District Court for the Northern District of New York (McAvoy, J.) convicting him, following a guilty plea to multiple counts of producing, transporting, receiving, and possessing child pornography, and sentencing him, inter alia, to serve fifteen years’ imprisonment and to pay restitution to the child victims of his crime in the amount of $974,902.  Because we conclude that the defendant has not waived his right to appeal the restitution amount, we are called upon to consider whether a restitution order pursuant to 18 U.S.C. § 2259 may include an amount for estimated future medical expenses, and, if so, whether the amount of restitution ordered, which included an estimate of the victims’ future medical expenses, is reasonable.  We hold that a restitution order pursuant to 18 U.S.C. § 2259 may provide for estimated future medical expenses, but we find that the district court has not explained adequately its calculation of the restitution amount.  Therefore, we vacate that portion of the judgment and remand for further sentencing proceedings limited to that issue.

Notably, the estimated future medical expenses at issue in this case concerned the need for lifetime counseling due to the the victims’ mental health issues resulting from their underage involvement in sexual activity induced by the defendant.

Seventh Circuit rejects broad-side attack on child porn guidelines

The Seventh Circuit today handed down an intriguing little per curian opinion dealing with the federal child porn guidelines in US v. Huffstatler, No. 08-2622 (7th Cir. June 30 2009) (available here). Here are the choice quotes:

[W]e need not ultimately decide whether Kimbrough gives district courts the discretion to disagree with the child-pornography guidelines on policy grounds, because Huffstatler does not contend that the district court abused its discretion. See United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir. 2008).  He argues instead that the methodological flaws that supposedly run through the child-pornography guidelines invalidate them entirely.  Thus, he submits, not only may a district court sentence below the child-exploitation guidelines based on policy disagreements with them, it must.

Huffstatler’s stance is untenable.  His argument is based on analogy to the crack guidelines, yet those guidelines remain valid, even after Kimbrough.  See United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008).  Judges are not required to disagree with them; a within-guidelines sentence for a crack offense may be reasonable. Id.; see also United States v. Lopez, 545 F.3d 515, 516-17 (7th Cir. 2008) (affirming a within-guidelines sentence for possession with intent to distribute crack).  The child-exploitation guidelines are no different: while district courts perhaps have the freedom to sentence below the child-pornography guidelines based on disagreement with the guidelines, as with the crack guidelines, they are certainly not required to do so.  Because the district court was not obligated to sentence Huffstatler below the range recommended by valid sentencing guidelines, Huffstatler cannot establish error, let alone plain error.

Notable veto by Texas Gov of sex offender registration reforms

This local article from Texas, headlined "Gov. Rick Perry vetoes bill lifting sex offenders 21, younger from registry," spotlights an interesting development in the Lone Star State.  Here is how the piece starts:

Aaron Jernigan had just started college at age 18 and was planning a career as a music teacher when he met a girl at a party and his whole world changed.  Now 25, Jernigan finished a four-year prison sentence instead of a four-year degree.

He is trying to get on with his life, but a year out of prison he still cannot find work and has had to move twice because he will forever carry with him the black mark of a registered sex offender. "I was pretty much just a regular old kid in high school," he said.  "And they kinda threw away the key on me."

Last week, Gov. Rick Perry vetoed a bill that would have given people such as Jernigan the chance to try to have their names removed from the Texas sex offender registry.  Perry said the measure approved by legislators failed to protect young victims.

For Jernigan and other sex offenders like him, who got involved with young people close to their own age, the veto was a disappointment and a setback.  "We were already ready to get everything settled and get our lives back," Jernigan said.

Is deterrence of child porn offenses sought by federal harshness undermined by state leniency?

Regular readers know about the many federal child porn downloading cases in which the federal sentencing guidelines call for many years or even decades of imprisonment.  Federal prosecutors frequently defend these harsh sentencing terms by contending they are needed in order to send a message and deter others from getting involved in accessing child porn.  But this message and the goal of general deterrence must surely be undermined by this kind of local story noting a prominent child porn offender getting sentenced only to probation:

Thomas Adams, the former Green Oaks mayor and Lake County Republican chairman, was sentenced to probation Monday in his child pornography case.  Judge Patricia Golden, who was brought in from Kane County to hear the case, went along with a recommendation from a pre-sentencing investigation and prosecutor Patricia Fix's suggestion that Adams is suitable for probation.

Adams, 71, pleaded guilty in February to 16 counts of possession of child pornography, a Class 3 felony, which is punishable by up to five years in prison, but is also probationable. As part of his plea deal, more serious charges connected to the dissemination of child pornography were dropped....

Adams was arrested on July 24, 2006, after authorities discovered that he e-mailed pornographic photos to an undercover agent in Clearwater, Fla. He was charged with 33 counts of child pornography, including 11 counts for dissemination. The images mostly depicted young boys.  In the days after his arrest, Adams resigned as mayor and as leader of the Lake County Republican party.

Mark Pleasant, an investigator for Lake County State's Attorney's Office, said during the sentencing hearing that Adams got most of the photos through AOL Instant Messenger and AOL chat rooms.  In one online conversation, Adams discussed the possibility of having sex with an undercover agent's teenage sons, though it never progressed, Pleasant said.

Problems with registration requirements for homeless sex offenders

Thanks to this post at How Appealing, I discovered that state court in Pennsylvania held in this opinion that, though "the Legislature could have drafted the Megan’s Law registration requirement to require a homeless and transient person to register ... it did not."  The opinion notes that other states have struggled with registration requirements as applied to homeless sex offenders, and concludes this way:

Because Wilgus’s homeless existence precluded the possibility of a residence, or fixed place of habitation or abode, we are constrained to hold Wilgus was without a “residence” to register, change or verify within the meaning of Pennsylvania’s Megan’s Law.  The Legislature may well consider amending the statute to address the status of homeless offenders within the registration requirements of Megan’s Law.

Supreme Court grants cert on federal sex offender civil confinement

As detailed in this order list, the Supreme Court this morning granted cert on United States v. Comstock, which concerns Congress's authority to enact a federal statute permitting court-ordered civil commitment by the federal government of “sexually dangerous” persons.  This case technically has more to do with congressional power than with sex offenders, but the sex-offense setting still makes this a case to watch for sentencing fans.

Some related posts:

• Fourth Circuit finds federal sex offender civil commitment law unconstitutional
• "Release of sex offenders delayed"
•  Two significant sex offender rulings on constitutional issues from the Eighth Circuit 

UPDATE:  At SCOTUSblog here, Lyle Denniston has this description of the grant in Comstock and the other criminal justice case that the Justices took up today:

The Supreme Court, granting review of three cases Monday, agreed to settle the constitutionality of a 2005 law giving federal officials authority to order the long-term confinement of individuals considered to be sexually dangerous (U.S. v. Comstock, 08-1224).

In an important case on the scope of “Miranda rights,” the Court said it would decide whether those warnings to a suspect in police custody must exclude an explicit assurance that the individual may have a lawyer in the room while questioning goes on (Florida v. Powell, 08-1175).

WWJD about the conflict between religion and restrictions on sex offenders?

This article from the Atlanta Journal-Constitution, headlined "Church-activity ban prompts legal fight," raised questions about what will judges do (and also what would Jesus do) concerning a Georgia law prohibiting sex offenders from volunteering at churches.  Here are some of the particulars:

A Georgia law banning sex offenders from volunteer work at churches should be struck down because it "criminalizes fundamental religious activities," a court motion filed Tuesday says.  The motion is the latest legal assault on the controversial state sex-offender registry law, one of the toughest in the nation.  A new provision says no registered sex offender shall be employed by or volunteer at a church.

This makes it a crime for sex offenders to sing in adult choirs, prepare for revivals or cook meals in a church kitchen, said the motion, which seeks a court order halting enforcement of the provision before it becomes law July 1.  It was filed in U.S. District Court in Atlanta as part of ongoing litigation that seeks to declare the law unconstitutional....

The goal of the state's sex-offender registry law is to keep sex offenders away from areas where children congregate and let the public know where the offenders reside.  Its punishments are severe: Any offender caught working at or volunteering at a church can be sentenced to 10 to 30 years in prison.

Sen. President pro tem Eric Johnson (R-Savannah) said Tuesday that nothing in the law prohibits someone from attending a place of worship. "They just can't be Sunday school teachers or volunteer for a vacation Bible school," he said. "It prevents them, as it should, from being around children." The motion stretches the intent of the law as a way to topple it, Johnson said. "I think somebody's trying to use religion to accomplish their own agenda."

Lori Collins, a 47-year-old mother of two from Henry County, is on the registry because she was convicted of statutory rape six years ago in Screven County for having sex with a 15-year-old boy. In prison, Collins completed the Department of Corrections' faith and character program and served as assistant to the chaplain. Since her release, Collins has become a licensed pastor, is a regular churchgoer at Mount Paran Church of God and is active in prison ministries.

As of July 1, she said Tuesday, she will no longer be able to do this volunteer work or help with administrative functions at two small evangelical ministries.  "If we're practicing our faith and doing this work, we're doing the work God called us to do," said Collins, who filed an affidavit in support of the motion.  "The state is hindering what the Bible clearly speaks about. I just want them to take another look at this." Collins said she would never volunteer for any activity involving children....

The motion is part of ongoing litigation filed in 2006 after the Legislature enacted restrictions on where sex offenders could live and work. U.S. District Judge Clarence Cooper initially issued a temporary restraining order prohibiting law enforcement from barring registered offenders from living within 1,000 feet of a school bus stop.  That order has since been lifted, but the bus stop restriction is not being enforced while the litigation makes its way through court.

Last year, the Georgia Supreme Court struck down part of the law prohibiting registered offenders from living within 1,000 feet of places where children congregate.  This past session, the Legislature revised the law primarily to address the state Supreme Court's ruling.

Missouri Supreme Court rules that federal sex offender registration requirement trumps state limits

This local article, headlined "Ruling to force sex offenders' names back on Missouri registry," provides a report on the significant impact of a ruling from the MIssouri Supreme Court concerning what sex offenders must register with the state:

Thousands of Missouri sex offenders will have to put their names back on the state registry after a ruling Tuesday by the state Supreme Court.  The offenders — including roughly 600 in Jackson County alone — were wiped from the registry in late June 2006.  The court at the time said the Missouri Constitution didn’t allow for laws to be enforced retroactively, so only offenders convicted after the law took effect in January 1995 had to comply.

But the state judges unanimously ruled Tuesday that sex offenders must obey a federal law that went into effect about a month after that 2006 ruling. The federal Sex Offender Registration and Notification Act requires all offenders, regardless of when they were convicted, to register.  The federal law “imposes an independent obligation requiring respondents to register as sex offenders in Missouri,” the judges wrote.

Law enforcement authorities across the state, including Attorney General Chris Koster, applauded the ruling. Koster said the registry was designed to protect the community from offenders and the “court’s ruling supports that goal.”  Former Jackson County Sheriff Tom Phillips, a defendant in a lawsuit filed by sex offenders, said the intent of the law was for all offenders to register, not just some.  “I think that’s what people want,” Phillips said. “Hopefully now that will go into place. … If the laws weren’t clear as to who should and who shouldn’t register, this should clear that up.”

The court ruled Tuesday in the case of 10 convicted Jackson County sex offenders who argued that they were not required to register because of the Missouri Constitution’s protection against retrospective laws.

The brief opinion from the Missouri Supreme Court can be accessed at this link.

Long opinions affirming very long federal child sex abuse sentences

Any concern that federal judges are too lenient when sentencing those who abuse children sexually should be allayed by some very long sentences affirmed in two long circuit court opinions today. 

From the Second Circuit, we get US v. Jass, No. 06-4899 (2d Cir. June 16, 2009) (available here), which affirms a 65-year sentence on a woman involved in the sexual abuse of two adolescent girl.  (Her boyfriend, who was the father of one of the victims, got a sentence of 115 years.)  From the Eleventh Circuit, we get US v. Sarras, No. 08-11757 (11th Cir. June 16, 2009) (available here), which affirms a 100-year sentence on a man involved in the sexual abuse of his step-daughter. 

Both cases cover interesting sentencing issues following a long discussion of various other legal issues and after reporting the sordid facts of the crimes.  The offenses in both cases are disturbing (the Jass facts are especially awful), so this is R-rated reading.  

Though there is little to savor in these ugly cases, I must note that the defendant in Sarras was subject to an obstruction-of-justice guideline enhancement based on evidence that he "had manipulated his penis in the defense photos" submitted to support the defense's failed trial argument that the defendant was not the person appearing in certain pornographic pictures.  In the future, lawyers advising federal defendants should be sure to warn clients that even improper penis manipulation can provide a basis for a sentence enhancement.

ABA Journal covers the controversies over federal child porn sentences

The June issue of the ABA Journal includes this long article on the debate over federal child porn sentencing.  The article is titled, "A Reluctant Rebellion," and here are some excerpts:

[Judge Lynn] Adelman’s criticism [of the child porn sentencing guidelines] goes to the heart of a much larger struggle in the federal courts over the federal sentencing guidelines that apply to computer-based child pornography offenses. Those guidelines tend to treat even first-time offenders with no history of abusing or exploiting children as seriously as murderers, rapists or child molesters.

Critics say the mandatory and recommended pen­alties for child porn offenses under the guidelines far exceed the seriousness of the crime committed by the typical offender who is swapping and down­loading child porn online with other like-minded in­dividuals in the presumed privacy of his own home.... But prosecutors and activists say the proliferation of child pornography on the Internet is an insidious problem that justifies the taking of extreme measures.

It is a debate that pits polite society’s disgust and revulsion against a judge’s solemn duty to impose a penalty that serves the three main purposes of sentencing: to punish the defendant, protect the public and deter the offender from re-offending.

Child porn cases account for about 2 percent of the entire federal criminal caseload, according to the U.S. Department of Justice, but they make up one of the fastest-growing segments of the federal court docket. The number of new cases filed has grown from a few dozen annually in the late 1990s to more than 2,200 in fiscal 2008, ending Sept. 30. That latest figure represents a 33 percent increase over the 2006 fiscal year, and a doubling in the number of new cases since 2003.

The average sentence has lengthened as well, according to the U.S. Sentencing Commission. In 1997, child porn offenders (not including those involved in its production) received an average sentence of less than 21 months in prison. In 2007, the same class of offenders received an average sentence of more than 91 months, an average annual increase of more than seven months per offender and a nearly 350 percent increase over the previous decade.

But those same statistics also show that more than one-third of all child porn defendants sentenced for nonproduction-related offenses in 2007 — 351 out of 1,025 offenders — received sentences below the recommended guidelines. And, in the past two years alone, a small but growing number of federal judges have felt strongly enough about the guidelines to register their objections in the form of a written opinion.

Some related federal child porn prosecution and sentencing posts:

• 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

"Teen with 47 IQ gets 100 years in sex abuse case"

A helpful reader forwarded to me this article with the headline that appears in the title to this post.  Here are the particulars:

A teenager who has profound mental disabilities was sentenced to 100 years in prison after pleading guilty to charges in a sex abuse case involving his 6-year-old neighbor.

Aaron Hart, 18, of Paris, was arrested and charged after a neighbor found him fondling her stepson in September. The teen pleaded guilty to five counts, including aggravated sexual assault and indecency by contact, and a jury decided his punishment.

Lamar County Judge Eric Clifford decided to stack the sentences against Hart after jurors settled on two five-year terms and three 30-year terms, The Dallas Morning News reported Wednesday. The judge said neither he nor jurors liked the idea of prison for Hart but they felt there was no other option.

Do female sex offenders present special issues and problems?

This new piece at CorrectionsOne, titled "Female sex offenders: A new phenomena?," prompts the question in the title of this post. Here are snippets from the article:

The majority of sex offender research pertains to male offenders. However, in recent years some big cases have called attention to a "new phenomenon" — the female sex offender. The media is responsible for much of the hype, primarily because many of the perpetrators have been attractive school teachers....

According to a 2006 report by the Federal Bureau of Investigation, women commit less than 10 percent of prosecuted sex crimes in the U.S.  Females represent only one percent of arrests for forcible rape and about six percent for other sex crimes.

While adult female sex offender rates have not increased, research shows that female juvenile sexual offenses are on the rise.  Between 1997 and 2002, juvenile cases with girls as the offender rose 62 percent for violent sex offenses and 42 percent for non-violent sex offenses.

This new population of offenders presents a different set of challenges for police, corrections officers and treatment providers.

Gender and cultural stereotypes can impact how the criminal justice system handles female sex offenders.  For instance, the notion that adolescent males must "conquer" women to gain social status undermines and minimizes the detrimental impact that female sex offenders can have on their victims.  Further, far too few mental health professionals specialize in handling female sex offender.

By virtue of their gender, female sex offenders are often seen as non-threatening.  Meanwhile, because of societal stereotypes, male victims are given conquest status when they have sex with an older female.  Not only can this undermine the tragic results of victimization, it can lead to under reporting of the crime.

The research on female sex offenders is minimal at best. In order to better understand and treat this growing population, academics and practitioners alike must expand this field. Treatment options for female sex offenders must be explored as well as reasons why the offending behavior began in the first place.

Noting differences in sentences for intra- and extra-family sex abuse

This local article from Minnesota, headlined "Justice is unequal in sex abuse: Those who molest family members get lighter sentences than outsiders, data show," documents a sentencing story that I suspect is not uncommon in most jurisdictions.  Here areis how the effective (and long) article starts:

A young woman in Hennepin County accuses her father of sexually abusing her since she was 12 and impregnating her at age 18. A 13-year-old Ramsey County girl tells a school counselor that her father had been touching her while her mother was in the hospital. A 15-year-old Anoka County boy reports to police that his stepfather, convicted of a sex offense years earlier, committed sex acts with him, once in exchange for help with a video game.

In each case, Minnesota sentencing guidelines called for a seven-year or 12-year prison sentence. Instead, each defendant pleaded guilty and was sentenced to a year or less in jail and a long probation.

Such lighter sentences are given more often to defendants abusing children in their own families or households than to those who abuse outside their families, a Star Tribune analysis of nearly 1,500 child sex abuse cases shows.

From 2001 to 2007, 33 percent of family or household child sex abuse defendants facing prison time ended up with probation, compared with 26 percent of those abusing outside their families. In the most serious cases where victims were between 13 and 15 years old, the difference was even greater: 37 percent versus 24 percent.

That sentencing disparity troubles some legislators and advocates for victims. "It's really unfortunate because ... girls and boys who have experienced incest are somehow valued less than girls and boys who have experienced abuse at the hands of neighbors and coaches and teachers and other people," said Elizabeth Saewyc, a nursing professor in Canada who studies abuse victims in research with Children's Hospital of St. Paul.

Even family members who initially agreed to lighter sentences for abusers -- to protect children from having to testify or to keep a family wage earner working -- sometimes come to feel probation sentences aren't enough as they watch the effect of abuse on the child victim play out for years.

But others in the justice system say family relationships make the cases extra difficult to prosecute. Sending a defendant to treatment with decades of probation is still a tough penalty and often right for the family in the long run, they say. "When you come down to trying to figure out what to do with these cases, you have to get realistic and you have to be pragmatic," said Pat Diamond, deputy Hennepin County attorney.

"Probation for Michigan official in sidewalk sex"

The title of this post is the headline of this local story. Here are the particulars:

A married Oakland County official who police say was caught having sex with another woman on a sidewalk in the Detroit suburb of Novi has been sentenced to two years' probation.

District Judge Dennis Powers on Wednesday also ordered 56-year-old Kim Capello to perform 50 hours of community service and undergo intensive outpatient substance-abuse counseling. Capello pleaded guilty to indecent exposure. The misdemeanor charge may be dismissed if he successfully completes his sentence.

Police say officers on April 18 found an unclothed man and woman apparently having sex against a wall. The couple said they'd been drinking.  The Republican county commissioner said Wednesday in court he was urinating and not having sex.

This additional local coverage provides even more of the explanation of how urinating and having sex might be confused in this sentencing setting.

"Restorative Justice and Child Sex Offences: The Theory and the Practice"

The title of this posts is the title of this recent article from the British Journal of Criminology, which is now available here via SSRN.  Here is the abstract:

Restorative justice advocates have made a number of claims about the effectiveness of restorative justice in relation to sexual assault crimes, such as its ability to defuse power relations between the parties and heal the harm.  This article examines whether or not restorative justice is one of the ways forward in the difficult area of prosecuting child sex offences by re-analysing some of the data reported in Daly (2006) and comparing restorative justice with other reforms to the sexual assault trial.  It concludes that there is insufficient evidence to support the view that there are inherent benefits in the restorative justice process that provide victims of sexual assault with a superior form of justice.

Two stories on different types of sex offenders

One of many reasons that sex offender law and policy is so messy and controversial is because the term sex offender can mean so many different things in some many different contexts.  These two promientn MSM stories about different types of sex offenders brings this reality into sharp relief:

• From CBS News here, "Targeting Teens For Sexting"
• From Time magazine here, "A Florida Epidemic: Female Teachers Sleeping with Their Students"

The Time story is especially interesting because it tries to unpack whether and why Florida might have an unusually large number of these unusual teacher-student sex crimes:

But why should Florida seem to be experiencing an especially high number of such cases?  Are those women, and for that matter the hormonally charged boys they target, somehow egged on by the state's more sexually relaxed atmosphere, with its sultry climate and scantily clad beach culture? (California also has a high rate of teacher sexual misconduct.) Or are Floridians simply reporting more cases like Hernandez's?  It is a crime in Florida, as in most states, not to; but perhaps the tabloid publicity of the Lafave case has prodded Sunshine State denizens to be more vigilant, to no longer be in denial about cases like these or take them so lightly.

And yet paradoxically, says [local state prosecutor Michael] Sinacore, it might also be engendering more cases. As potential female predators see more and more headlines about teachers like themselves bedding boys, it can seem more acceptable behavior in their eyes — especially when they see that offenders like Lafave get relatively light sentences. (That might be changing, however: a Florida judge recently slapped a two-year prison term on a 28-year-old female teacher in Pensacola convicted of unlawful sexual activity with a 15-year-old male student.)

Governor Jindal unwilling to take on costs of sex offender confinement proposals

This local AP story out of Louisiana provides yet another example of how tight budget times will always put a squeeze on efforts to get extra tough on criminals.  This AP piece is headlined "Jindal administration scraps key sex offender bill," and here are excerpts:

Gov. Bobby Jindal's administration scrapped the centerpiece of his sex offender proposals on Tuesday after deciding the post-prison "civil commitment" program would be too expensive, a health department spokeswoman said.

Lauren Mendes, a spokeswoman for the Department of Health and Hospitals, said the proposal was dead for the current legislative session.  "It is a concept that DHH and the governor's office do support and will revisit when it's more financially viable for Louisiana," she said.

Rep. Fred Mills' bill would have provided treatment for certain sex offenders after their release from prison. Mills said the program would require about $12 million over five years — for surveillance equipment, medication and psychiatric evaluations — an expensive price tag in a year of budget cuts.

The idea was geared toward offenders deemed most likely to commit more crimes after being released. Jindal is backing several bills this year to crack down on sex offenders, but Mills' was the most ambitious....

Mills said initial estimates for the civil commitment program — $26,000 annually per sex offender — turned out to be low compared to a similar program in Texas. Most sex offenders in the program would also require the treatments for life, Mills said, compounding the future costs.

Mills told the House Appropriations Committee that he agreed with the governor's office and DHH that the bill is too costly.  "Between all of us, we got together and said, 'It's a good policy, but let's try it another year,'" said Mills, D-Parks.

Some related recent posts:

• "States pull back after decades of get-tough laws"
• Notable report on the impact of the prison economy in the Sunshine State
• "Ohio lawmakers mull sweeping reform to cut prison populations"
• What should Florida and other states do with all their old sex offenders?
• "Is 500 serious crimes worth the freedom of 50,000 offenders? That's my question."
• FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management

What should Florida and other states do with all their old sex offenders?

The question of this post follows from reading this interesting local article, headlined "Judge decides sex offender will stay confined at age 89."  Here are excerpts:

He's the state's oldest living sexually violent predator, but who is the real Ralph Hawker?

To some, he's an infirm World War II veteran who will turn 90 in September and uses a wheelchair because of the effects of diabetes, Parkinson's disease, thyroid and heart disease.  To others, he is a pedophile who, despite his age, would continue to prey on young boys if given the opportunity.

"I don't think anybody's concerned about [Hawker] putting on his Nikes and running down the street chasing kids," Palm Beach Circuit Judge Chuck Burton said at a court hearing May 18 to decide whether the convicted pedophile should be released from a civil commitment center where he has been locked up since 2000. "But he's stubborn as hell," Burton said. "What do you do with somebody with an attitude like that?"

You leave him in Arcadia's Florida Civil Commitment Center, Burton ruled Thursday. "If he were in the company of a young teenage boy whom he deemed to be consenting to sexual activity, this Court has no doubt that Hawker would offer sexual gratification to the boy," Burton wrote in his order. "He sees nothing wrong with it as long as the child had participated in some type of sexual activity previously."

In 1988, Hawker was sentenced to 10 years of probation for molesting two pre-teen boys, one of them a relative. Just before the sentence ended, Hawker violated the terms of his probation by being in the company of an unsupervised minor. He was imprisoned.  As his 2000 release date approached, the state began proceedings to have Hawker committed under Florida's Jimmy Ryce Act. Since 1999, the Ryce Act has allowed the indefinite civil commitment of sex offenders after they have completed their prison terms.

In 2005, a Palm Beach County jury found Hawker to be a sexually violent predator — the required designation to commit someone to the center. He has been locked up there since then. He is one of 677 residents at the center, according to state Department of Children & Families.  He is the oldest resident, one of 25 men age 70 or older.

In a written statement to the Sun Sentinel, a facility spokesman said the center can accommodate its elderly residents, who are scattered among the general population.  Officials at the facility are considering developing a 20-bed unit for elderly residents with medical challenges, a criterion Hawker meets.

The problem highlighted in this article — namely deciding just what will be done with (really) dirty (really) old men — is one that lots of states other than Florida will also surely be facing in the years ahead.  With so many long sentences and civil commitment schemes in place for sex offenders, and with so many fearing that sex offenders can never be trusted not to reoffend, it seems likely that all states should be prepared to build facilities to house elderly sex offenders.

Some related posts:

• NPR story about elderly sex offender prisoners
• Are all states going to need to create old-age prisons?
• "Elderly Offender Home Detention Pilot Program"
• When tough-on-crime bills come due
• The (medical) costs of long sentences
• More on the (medical) costs of long sentences
• Aging gracefully ... in prison?
• The high costs of an aging prison population