Sentencing Law and Policy

Federal district judge enjoins part of new Nebraska sex offender law

As detailed in this local article, Sentencing Hall of Famer Judge Richard Kopf has issued a notable preliminary ruling concerning Nebraska's new sex offender law.  Here are the basics:

A federal judge has blocked portions of Nebraska's new sex offender registry law, but is allowing the bulk of it to take effect, as scheduled, Friday. In a ruling issued Wednesday, Judge Richard Kopf said lawmakers have mostly done what Congress wanted in revising the law.

Kopf is restricting enforcement of a provision that prohibits sex offenders from using social networking sites used by children. Affected as well is a requirement that sex offenders agree to searches of their computers. Convicted sex offenders who've completed their sentences and aren't on parole, probation or court-ordered supervision won't be subject to those two provisions.

The full ruling by Judge Kopf can be downlaoded below, and here is how it gets starts:

Plaintiffs attack amendments to Nebraska’s Sex Offender Registration Act that become effective January 1, 2010. With exceptions noted below, I decide that a preliminary injunction is unwarranted. By and large, Nebraska has only done what Congress (and the Attorney General of the United States pursuant to a delegation from Congress) permitted or required.

The exceptions: In the interim, Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit:

(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and

(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

Download Kopf ruling on Nebraska sex offender law

First Circuit debates applicability of child porn trafficking sentence enhancement

Today's opinion from the First Circuit in US v. Dyer, No. 08-1343 (1st Cir. Dec. 28, 2009) (available here), confirms not only that some federal courts are working this week, but also that downloading child porn in the wrong way can make one liable at sentencing for trafficking in child porn.  Here is the heart of the majority's ruling concerning the application of a federal guideline sentencing enhancement:

Dyer chose to download and frequently use LimeWire, a type of peer-to-peer software that creates a shared system of users, and he did so to acquire images of child pornography for his personal collection.  He downloaded these files into a "shared" folder that he knew would be made available to others.  He did so for two years and gave no indication to Agents Lechner and Pritchard that he would have stopped had he not been arrested.  He knew how to turn off the "sharing" feature of LimeWire and prevent other users from accessing these features, but he did not, at any point, make an effort to do so.  By his actions, Dyer took deliberate steps to become part of a virtual community of consumers of child pornography who shared images to enlarge their own collections.  Our holding that these acts showed an "intent to traffic" [and thereby supports a specific guideline sentencing enhancement] likewise comports with the holdings of other circuits on similar fact patterns.

A dissenting opinion in Dyer makes much of a distinction between general intent and specific intent to argue that the defendant in this case should not be subject to a trafficking sentencing enhancement.  And both the majority and dissenting opinions make for interesting reading.

"Md. girl's death sharpens criticism of sex offender laws"

The title of this post is the headline of this new local article reporting on the unsurprising response to the latest brutal high-profile crime by a registered sex offender in Maryland.  Here are excerpts:

Not even a full day after police found the body of an 11-year-old girl who was kidnapped, authorities say, by a registered sex offender, the Salisbury tragedy was spotlighted by Maryland activists who consider the state's child protection laws inadequate.

Jerry Norton, who heads Citizens for Jessica's Law in Maryland, a group that for years has fought to fortify laws against pedophiles, was calling lawmakers Saturday, underscoring his position....

Police said the girl had been taken from her bedroom Tuesday night by a registered sex offender, Thomas James Leggs Jr., who has been held since Wednesday in the abduction. Leggs briefly dated the girl's aunt, who had custody of her and her two siblings....

Leggs, 30, is listed in the Maryland registry because of a third-degree sex offense conviction in 1998. In Delaware, he is listed as a "high-risk" sex offender in connection with the rape of a minor in 2001.

Norton is flabbergasted that a man who raped a minor could be free so soon and associating with children. "What . . . is he doing back out on the street, and what is he doing having contact with this child?" he said. "I think the problem is with these guys going through a revolving door."

State Sen. Nancy Jacobs (R-Harford) co-sponsored Maryland's version of Jessica's Law, a bill passed in 2006 that set sentencing guidelines for child sex offenders. It's named for Jessica Lunsford, a 9-year-old Florida girl who was kidnapped, sexually abused and killed by a convicted child sex offender.

At the urging of activists such as Norton, Jacobs and other legislators have tried unsuccessfully to tighten the law to prevent offenders from getting parole. She thought Sarah's case would "absolutely" inspire legislators to reinforce the law. "I've already had e-mails from people asking about it," Jacobs said. "It's about how far can we go, and I'm in favor as going as far as we can."

Jacobs also said the case exposes weaknesses in how Maryland communicates with other states about child sex offenders. If Leggs was considered "high risk" in Delaware, she thinks he should have been in Maryland, too.

Del. Mike D. Smigiel Sr. (R-Cecil), who, heading into the 2010 legislative session, has pre-filed three bills that would tighten child sex offender laws, said he has been "seething" over the Salisbury case.

He's considering such options as civil incarceration, cracking down on plea bargains and allowing wiretapping of suspected child sex offenders. "We have very strict laws in Maryland, but I think more has to be done," he said. "These child predators are incorrigible. We have to find ways to deal with this threat to our community."

No happy ending in sentencing appeal by defendant involved in (illegal) happy endings

A panel of the Seventh Circuit issued an interesting little sentencing opinion yesterday in US v. Young, No. 08-2357 (7th Cir. Dec. 23, 2009) (available here).  The start of the Young opinion helps explain the title of this post:

Bok Young helped to run a day spa in Highland, Indiana, at which she and other workers provided sexual massages to spa customers.  She was arrested when the spa was raided by local and federal agents.  Young eventually pleaded guilty to conspiring to use the facilities of interstate commerce to facilitate prostitution, see 18 U.S.C. §§ 371 and 1952(a)(3), and the district court ordered her to serve a prison term of eighteen months, the minimum term called for by the Sentencing Guidelines.  Young appeals, contending that the district court made two errors in calculating her Guidelines range: characterizing Young’s role in the offense as that of a manager or supervisor, see U.S.S.G. § 3B1.1(b) and (c), and treating Young’s co-workers as victims whom she had enticed to engage in prohibited sexual conduct, see U.S.S.G. § 2G1.1(d).  Young also argues that the court failed to give meaningful attention to the mitigating factors she cited as a basis for a lower sentence, and that the sentence imposed by the court is unreasonable.  We affirm.

Two notable end-of-year appeals to SCOTUS

Thanks to How Appealing, I saw these two articles reporting on notable new sentencing appeals come from state officials to the US Supreme Court:

• From the San Jose Mercury News here, "Schwarzenegger makes last plea to U.S. Supreme Court in prison case"

• From the Louisville Courier-Journal here, "Sex-offender case appealed to U.S. Supreme Court"

Because the Supreme Court has so far dodged the California prison litigation, I am not sure Schwarzenegger is likely to get the Justices to take the case up now.  Similarly, though the sex offender case from Kentucky presents SCOTUS with a first opportunity to consider sex offender residency restrictions, I have an inkling that the Justices may be inclined to GVR the Kentucky AG's appeal after the Court addresses various ex post facto issues in the pending Carr case (which concerns sex offender registration requirements).

UPDATE:  In this post at C&C, Kent indicates that the Schwarzenegger appeal provides "very little to decide, as this is one of those rare cases where Congress has provided for an appeal rather than a writ of certiorari. It is not in the Court's discretion to take it or not. If they have jurisdiction, they have to take it."  I trust Kent's judgment here, though I suspect the Justices can figure out a way to dodge this case if they really set their mind to it.  Remember, SCOTUS is not final because it is infallible, it is infallible because it is final.

Maine's high court finds part of sex offender registration law unconstitutional

As detailed in this local press report, the "Maine Supreme Judicial Court has found some of the provisions of Maine's sex offender registry law are unconstitutional." Here are more details:

Attorney General Janet Mills says the court upheld most of the sex offender registry law, but found that some specific retroactive provisions violated both state and federal constitutional provisions that severely limit what are called ex post facto laws.  "Those parts that they found extra burdensome in retroactive application are the lifetime registration and the 90 day in-person registration, absent some kind of waiver provision that used to be in the law. Absent some remedy for the individual to say, 'I no longer should have to register.'"

Mills says she's pleased that the court found that the state has the authority to require sex offenders to register with the state and that the public should have the ability to see who is on that list.  She believes the Legislature can fix the law to meet the objections of the court and says she will work with lawmakers to craft a measure that will meet constitutional muster.

The full 54-page ruling in Maine v. Letalien is available here.

"Judges seek flexibility in child porn cases"

The title of this post is the headline of this new article in USA Today discussing a facet of post-Booker federal sentencing well-known to regular readers of this blog.  Here are excerpts:

People convicted of possessing child pornography are getting support from an unexpected source: federal judges.  In hearings across the country, defense attorneys and federal judges are asking the U.S. Sentencing Commission to allow judges greater flexibility to give lighter sentences for possession of child pornography when no other crime is involved....

Ernie Allen, president of the National Center for Missing & Exploited Children, says judges already give sentences that are lighter than the guidelines.  He says they sometimes minimize the crimes by not examining the pornography involved and are too often swayed by defendants who appear before them and do not match society's stereotypes of people who look at child porn.

"Doctors, lawyers, business executives, schoolteachers, police officers — they come out of mainstream America," Allen says.  "So in a lot of situations, judges look at them and say, 'They're not dangerous,' or they minimize it and say, 'This is just kiddie porn.' "

U.S. District Judge William Sessions, chairman of the commission and chief judge of the district of Vermont, says judges have been nearly unanimous that the guidelines and the mandatory minimums restrict their ability to sentence convicts based on the specifics of each case and defendant.  He says police and prosecutors want to maintain them intact to serve as deterrents to crime, and to use possible sentence reductions as incentives to win defendants' cooperation in investigations.

A few related recent child porn federal sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• More examples of sentencing uncertainty surrounding federal child porn cases
• Effective review of federal uptick in child-porn prosecutions
• Documenting the uptick in child porn prosecutions
• "Does the punishment fit the crime for child porn?"
• "Federal judges argue for reduced sentences for child-porn convicts"
• Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn

North Carolina law that excluded sex offender from church declared unconstitutional

This local article reports on a notable new ruling declaring unconstitutional certain restriction placed on sex offenders in North Carolina.  Here are the details:

A North Carolina law that limits sex offenders' ability to worship unconstitutional, a judge ruled Thursday. Two parts of a North Carolina general statute aimed at protecting children from child molesters are unconstitutionally vague and overly broad, Superior Court Judge Allen Baddour said Thursday. He said the statutes infringe on the constitutionally protected right to worship.

The decision comes after authorities arrested registered sex offender James Nichols in March for attending a Baptist church outside of Raleigh because the church provided on-premise childcare. Baddour dismissed the charges.

The statute says offenders must stay 300 feet away from any area intended for the use, care of or supervision of minors and any place where minors gather for regularly scheduled events.

Baddour said the laws "infringe upon protected rights ... to practice religion, which are fundamental rights protected by the First Amendment."

He added that it is impossible for a sex offender, law-enforcement officer or citizen to determine which areas fall under the category of a place where minors gather for regularly scheduled events. He ruled the law too vague to follow.

Baddour pointed to less drastic measures the state could take to protect children from offenders, including an exception already in the statute that allows offenders to be on school property for a specific purpose.

The full 16-page ruling in this significant case can be accessed at this link.

Notable coverage of efforts in Michigan to reform state's sex offender registry

As my copious blog posts today reveal, there seems to be a lot of especially good reading for sentencing fans in the newspapers today.  And here are two notable pieces from Michigan discussing sex offender registries  to add to the list:

• Coalition: Focus Mich. sex offender registry on risk
• At least two state lawmakers personally affected by ‘pervasive’ sex offender registry

The first piece reports this notable fact: "With over 45,100 names and faces on the registry of convicted sex offenders –- and even some whose records are conviction-free –- Michigan holds the eyebrow-raising distinction of having the highest ratio of its citizens on a state sex offender registry."

The second piece add this interesting twist:

According to Shelli Weisberg, legislative director of the American Civil Liberties Union of Michigan, there are now lawmakers (plural) with more than a passing interest in the registry.  “Another thing — and we knew that it would come sooner or later — is that we do have now two representatives now in the Michigan legislature who have family members that have been affected by the registry,” Weisberg told Michigan Messenger.

Eight years in state prison for failure to register as a sex offender

This local story from Ohio, headlined "Sex offender gets 8 years for not registering," reports on the longest prison terms I can recall seeing for merely failing to register as a sex offender.  The story provides only these sketchy details:

A 41-year-old Akron man was sentenced to eight years in prison late Thursday after being found guilty of failing to register as a sex offender. Summit County Common Pleas Judge Lynne Callahan found Clifford Godfrey guilty of failing to register as a sex offender and failing to register a change of address.

The Summit County Prosecutor's office said Godfrey was released from prison on May 14 after serving a term for corruption of a minor.  Upon release, he registered the address where he would be living with the department of corrections.

Under Ohio law, a sex offender must also register his address with the Sheriff's department office. Prosecutors said he did not do this.  A certified letter was sent to the address he provided the department of corrections, but the letter was returned because Godfrey did not live there, prosecutors said.

Godfrey was arrested and sent to Oriana House, but prosecutors said he left there as well. He was arrested a second time for not registering a change of address.

I suspect there may have been some additional aggravating factors involved in this case that might explain why such a long sentence was imposed for just the failure to register.  But I am also wondering whether the recently discovered crimes of long-registered sex offenders Phillip Garrido and Anthony Sowell may be influencing sentencing judges to go even tougher on sex offenders who do not keep up on their registration requirements.

Can downloading of child porn be blamed on post-traumatic stress disorder?

This local story from Virginia, which is headlined "Navy officer gets 40 months for child porn," reflects recent debates over both the federal child porn sentencing guidelines and showing leniency for those who served our country in the military.  Here are the details:

A Navy lieutenant commander who served in Iraq with an elite Riverine unit was sentenced today to 40 months in prison after admitting he downloaded child pornography. John J. Hall blamed his actions in part on post traumatic stress disorder, a claim that the judge in the case took into account in granting leniency.

The U.S. Attorney’s Office asked for a 70-month prison term, but U.S. District Judge Mark S. Davis cited Hall unblemished record and achievements in uniform in sentencing Hall to well below federal recommended guidelines.

Hall pleaded guilty in July to one count of possessing child pornography. He admitted that he downloaded child pornography in the fall of 2006 and then again upon his return from Iraq in 2007. Authorities discovered 288 child porn images on his computer. Hall has just shy of 20 years of service.

Some recent related posts:

• "Judge suggests more sentencing options for war veterans"
• Prior military service as a sentencing mitigator gets a big boost from SCOTUS
• Should prior military service reduce a sentence?
• 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
• "Federal judges argue for reduced sentences for child-porn convicts"
• Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn

Another thoughtful and notable district court opinion on restitution in child porn sentencing

A helpful reader sent me a copy of a new opinion from the Eastern District of Texas addressing a request for restitution in a child porn downloading case.  The opinion in US v. Paroline, No. 6:08-CR-61 (E.D. Tex. Dec. 7, 2009) (available for download below), denies restitution on a causation theory as explained in its conclusion:

[T]he Court finds that Amy was harmed as a result of Paroline’s conduct and thus, is a “victim” for purposes of section 2259.  However, a restitution award under section 2259 requires that the Government prove by a preponderance of the evidence the amount of the victim’s losses proximately caused by the defendant’s conduct.  Having considered the parties’ oral arguments and written submissions, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images and thus, the Request for Restitution is DENIED.

The body of the Paroline opinion includes this paragraph noting the disparate treatment that this interesting issue has been given in various district courts over the last few months:

Restitution orders entered in possession cases have varied among the various district courts addressing the issue.  On July 9, 2009, a district court in the Northern District of Florida entered a restitution order against a possessor criminal defendant in favor of Amy in the amount of $3,263,758.  United States v. Freeman, No. 3:08-cr-22 (N.D. Fla. filed July 9, 2009).  Similarly, a district court in the Southern District of Florida ordered a possessor criminal defendant to pay $3,680,153 in restitution to Amy without addressing the proximate causation issue.  United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *3–4 (S.D. Fla. Sept. 2, 2009).  On the other hand, a district court in the Northern District of California declined to order restitution because restitution was precluded under the defendant’s plea agreement, but noted that “a restitution order in [an end-user possession] case must be based upon the identification of a specific injury to the victim that was caused by the specific conduct of the defendant.” United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. August 7, 2009).  The Central and Eastern Districts of California have taken a different approach, seemingly adopting a set amount of restitution per defendant convicted of possession of child pornography.  See United States v. Brown, No. 2:08-cr-1435 (C.D. Cal. filed Oct. 5, 2009) (awarding restitution in the amount of $5,000 to each victim); United States v. Ferenci, No. 1:08-cr- 0414, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009) (awarding restitution in the amount of $3,000 to the victim).  In another case, the Government and the defendant stipulated to the amount of restitution because it was “in the best interest of justice, judicial expedience[,] and economy in resolving this novel legal issue.”  United States v. Granato, No. 2:08-cr-198 (D. Nev. filed August 28, 2009).  Most recently, a district court in Maine declined to order restitution finding that the Government “failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction.”  United States v. Berk, — F. Supp. 2d —, No. 08-CR-212-P-S, 2009 WL 3451085, at *8 (D. Me. October 29, 2009).

Download Paroline Memorandum Opinion and Order

Upstate New York struggling with 100-year-old "unrepentant pedophile"

Here is a local story that would seem like a bawdy joke if it was not so serious.  The piece from The Buffalo News is headlined "Oldest sex offender about to be freed here: 100-year-old pedophile unrepentant awaiting move to E. Side apartment," and here are the details:

Theodore A. Sypnier is a century old, but you wouldn't know it by looking at him or talking with him. He is highly alert, physically active and very capable of living alone and taking care of himself.

Theodore A. Sypnier also is a pedophile. He has been convicted at least twice of molesting children and suspected in other cases over the last six decades in the Town of Tonawanda and Buffalo, and psychologists, police and others say he is likely to molest children again. Therein lies a big problem.

Sypnier has been in prison for most of the last nine years and is soon to be released into a one-room apartment in Buffalo to live on his own.  If ever there was a person who should be permanently confined, even after serving out his prison term, police and experts say, it is Sypnier.

Sypnier, the oldest registered sex offender and parolee in New York State, is unrepentant.  "Those children crawled into bed with me because they were frightened, but there was never any sexual hanky-panky," Sypnier said of the two Town of Tonawanda sisters he was accused of molesting in 1999 while he was baby-sitting them.

He says he loves children and hopes to clear his name so that he can start up a relationship with several great-grandchildren he has never met.  Sypnier contends that he is the victim of a colossal miscarriage of justice, but authorities say he remains a threat to society and will be closely monitored once he leaves a Bailey Avenue halfway house.

Erie County District Attorney Frank A. Sedita III says he has no sympathy for Sypnier, who portrayed himself as a loving grandfather to children he met.  "Mr. Sypnier is the personification of evil and should be removed from civilized society permanently, until the day he dies," Sedita said. "He is an unrepentant child molester who has been doing this or trying to do this for 60 years. He can't be cured.  He's not sick.  He's evil.  He's not old.  He's evil."...

New York does have a civil confinement law that allows the state to confine a sex offender who has completed his sentence if he has an abnormality that makes him likely to commit more sex crimes. But Sypnier was ruled ineligible for lifetime civil confinement, state officials told The Buffalo News....

At 5-feet-5 and 145 pounds, with wisps of white hair and blue eyes, the bespectacled Sypnier brushes aside all of the criminal complaints against him from over the years.  "They were all single mothers with children and wanted my money," he said. "They were blackmailing me, threatening me with jail if I didn't give them money."

Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn

The Buffalo News has two effective new articles about the dynamics that surround the application of the federal sentencing guidelines for child porn offenses.  The start of this first article, which is headlined "Child porn suspect faces risk with trial: Brose case may be 1st to go before jury here," spotlights some of the plea and sentencing realities for child porn offenses in one federal district and nationwide:

If filmmaker Lawrence F. Brose goes to trial and wins an acquittal in his child pornography case, he will accomplish two firsts at Buffalo's federal court. He would be the first person ever arrested in a federal Internet child porn case to go to trial in Buffalo. He also would be the first person to emerge without a felony conviction.

Every other person charged with such crimes in the federal courts of Western New York — including at least 189 men since October 2005 — has either been convicted or still has charges pending, according to court records. A few men got breaks from federal judges, but authorities say most local defendants who admitted to possession of child porn got federal prison terms of at least four to 10 years. If a defendant chooses to go to trial and is convicted of the more serious charge of receiving child porn, he can get up to 20 years.

"We have never had a federal child pornography case go to trial here in Buffalo. Everyone has pleaded guilty," U.S. Attorney Kathleen M. Mehltretter said. "We did have three cases go to jury trials in Rochester, and all three were convicted."

On a national scale, federal trials in such cases are rare and acquittals exceedingly rare. According to the U.S. Justice Department, 7,234 people have been arrested on federal child porn charges since 2006. Of those, 292 defendants went to trial. All but 15 were convicted.

The start of this additional article, which is headlined "Sentencing guidelines may undergo revision," documents the broader on-going debate over the federal sentencing guidelines for child porn downloading:

Many Buffalo defense attorneys have complained for years that men convicted in federal court of looking at child pornography on their computers sometimes get longer prison terms than men convicted in state courts of actually molesting kids. Now, the issue is getting some national attention … from the federal judges who hand out the sentences.

Many federal judges throughout the nation have asked the U.S. Sentencing Commission to revise the advisory sentencing guidelines in cases of child pornography possession. Western New York's chief district judge, Richard J. Arcara, is one of them. "I'm not sure that the guidelines, as they are currently written, assist [judges] in identifying factors that distinguish a defendant who is a threat to the community and likely to re-offend from one who is not," Arcara said in July, while speaking at a public hearing on sentencing issues.

Officials of the Washington-based sentencing commission said they are looking at the suggestions from Arcara and other judges. The commission could propose some changes … which would have to be authorized by Congress … next year. "It is on our priority list for the forthcoming year to take a close look at the child pornography guidelines," Beryl Howell, a member of the sentencing commission, said during another public hearing in Chicago in September.

That word comes as very good news to Thomas J. Eoannou, Mark J. Mahoney and Marianne Mariano, Buffalo defense attorneys who have raised questions about the guidelines for years. "I believe possessing child pornography should be a felony crime, and it is," Eoannou said. "But I think the [federal] sentences for people who only possess it are way out of whack."

Mariano heads the federal public defenders office in Buffalo. She said she is thankful that judges are taking an interest in the issue because child porn offenders aren't a group likely to have many advocates before Congress.

Related issues concerning the debate over the federal guidelines for child porn offenses are also discussed in this local article from Virginia, which is headlined "Chesterfield man gets 17 years for 2nd child-porn conviction."  Among the interesting facets of that local story is the fact that  a member of the "Virginia attorney general's office [served] as a special assistant U.S. attorney" in the federal case.

Also, the Denver Post today has this notable editorial titled "Child porn laws do need review."

A few related recent child porn federal sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• More examples of sentencing uncertainty surrounding federal child porn cases
• Effective review of federal uptick in child-porn prosecutions
• Documenting the uptick in child porn prosecutions
• "Does the punishment fit the crime for child porn?"
• "Federal judges argue for reduced sentences for child-porn convicts"

"Pastor Offers Sex Offenders A 'Miracle': A New Start"

The title of this post is the headline of this new NPR story about a pastor in Florida who ministers to a community of convicted sex offenders.  Here is how the piece gets started:

More than 20 states, including Florida, limit where convicted sex offenders can live — keeping them away from schools, parks and other places where children congregate.  In Miami, dozens of homeless sex offenders live under a bridge because there are few, if any, options nearby.  But 90 miles away, there's a community dedicated to housing sex offenders.

Here is a segment of the piece providing part of the pastor's interesting back-story:

[Dick] Witherow believes people can change.  At Miracle Park, those on probation attend weekly court-ordered sex therapy sessions.  He also offers anger-management classes and sessions on relationships, inner healing and life skills.

Witherow has authored a book about sex offenders called The Modern Day Leper.  He says he could have worn the same label as the men at Miracle Park.  He was 18 years old when he met his first wife.  She was just 14, and before long she was pregnant.  A judge allowed them to get married but told Witherow he could have been charged with statutory rape.

"If that would have happened in today's society, I would have been charged with sexual battery on a minor, been given anywhere from 10 to 25 years in prison, plus extended probation time after that, and then been labeled a sex offender," he says.   Witherow knows that there are those who argue that's what should have happened.

Repeat offender gets state sentence of 100 years for possessing child porn and pot

While closely following the debates and disparities in federal sentences for downloading child porn, I keep thinking and wondering about whether and how these offenses are being prosecuted and sentenced in state court.  Thus this local article, headlined "Slidell man sentenced to 100 years in prison for possessing child porn," concerning a Louisiana sentencing caught my attention this morning.  Here are the details:

A 43-year-old Slidell man on Thursday received 100 years in prison for possessing child pornography and about a pound of marijuana. State Judge William "Rusty" Knight sentenced Andrew Galatas under stiffer sentencing guidelines after Knight determined that St. Tammany Parish Assistant District Attorney Scott Gardner had sucessfully labeled Galatas a habitual offender.

None of the images was of local children and Galatas had not taken any of them himself, only downloaded them off the Web, authorities said. A 12-member St. Tammany jury had found him guilty on Nov. 10 as charged of the two possession charges.

Although pornography involving juveniles carries a maximum term of 10 years in prison, Galatas has other felony convictions on his record so could be considered a habitual offender. He has molestation of a juvenile and a sexual battery charges from 1997, a possession of stolen property over $500 charge in 1996 and an issuing worthless checks over $100 charge from 1995.

Poll finds that one-third of all youths may be involved in child porn . . . er, sexting

This new Wired story, which is headlined "Survey: One-Third of Youths Engage in Sexting," provides the basis for my post title.  Here are the details:

If you think the sexting phenomenon is growing, you’re not imagining it.  According to a new survey, almost one-third of youths admit they’ve engaged in sexting-related activities that involved either e-mailing a photo or video of themselves in the nude or being the recipient of such images.

Of those who admitted to distributing suggestive images of themselves, about 61 percent report that they were pressured by someone to send the image.  Girls were more likely to share a naked image of themselves than boys.  Those who are already sexually active were much more likely to send an image than those who were not sexually active.

Most of the respondents sent the image to a significant other or a person of romantic interest to them.  But 29 percent said they shared naked images of themselves with someone they knew only online.

These are some of the findings of a survey conducted by MTV and the Associated Press as part of a new multi-year campaign the youth-oriented television network launched on Thursday with numerous partners.  The aim of the campaign, dubbed “A Thin Line,” is to educate teens and college-age students about safe and appropriate digital behavior.  The campaign will include a half-hour MTV news special to be broadcast next Valentine’s Day that will focus on sexting as well as a series of public service announcements addressing sexting, harassment, digital prejudice and other topics.

The age group surveyed by MTV and the AP ranged from 14 to 24, so much of the "sexting" discussed in this new survey (which is available here) may not technically qualify as child porn.  But, as is documented in prior posts linked below, in various setting, sexting by teenagers sometimes has generated talk of child porn prosecutions.

Some related "sexting" posts:

• The many fascinating legal and social issues swirling around "sexting"
• Federal district judge enjoins controversial state sexting prosecution
• Ohio ACLU writes to local lawmakers and prosecutors about sexting
• "Ohio judge sentences 2 teens for sexting"
• Some of the latest "sexting" news and notes
• Vermont legislature considering "sexting exception" to child porn prohibitions
• Pennsylvania town struggling with a "rash of sexting incidents"

"Federal judges argue for reduced sentences for child-porn convicts"

The title of this post is the headline of this long front-page article in today's Denver Post.  Here are excerpts:

In a nationwide series of hearings, members of the U.S. Sentencing Commission have heard from federal judges seeking reduced sentences for a group of defendants one would think unlikely to get sympathy from the bench: possessors of child pornography.

From New York to Chicago, and recently in Denver, federal judges have testified before the commission, which sets federal punishments, that the current sentencing structure for possessing and viewing child pornography is too severe.

The commission has made reviewing child-pornography sentencing guidelines a priority of its work, which will end in May and could include a change to the guidelines to allow shorter sentences for future offenders.

Judges, for the most part, have based their argument on a belief that some of the defendants who view child pornography have never molested a child or posed a risk to the community and may be better served by treatment rather than prison.

As federal guidelines now stand, the number of images and the way the contraband is obtained enhance prison terms. A first-time offender with no criminal history can be sentenced to 10 years in federal prison....

In 1995, federal defendants convicted of possessing child pornography were sentenced to an average of 15 months in prison, Ilgen's attorney wrote in court documents. By 2007, first-time child-pornography offenders were receiving 102 months in federal prison....

Ernie Allen, president and chief executive of the National Center for Missing and Exploited Children, said some judges don't realize possessing the images revictimizes the children in the photographs and fuels a growing online business. "There are too many judges who continue to provide token sentences for what we consider to be serious crimes," Allen said. "These are images of prepubescent children, growing numbers of them infants and toddlers, and they trade with each other for purposes of arousal and breaking down the inhibitions of other children."

Allen said educating the judiciary about the impact of child pornography on victims is key. "We are not in favor of disproportionate sentencing or disparities, but the problem here is too many judges who simply do not recognize how serious these crimes are," he said.

A few related recent child porn sentencing posts:

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

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

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

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

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

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

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

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

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

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

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

Sex offenders can now be blamed for ruining Christmas tradition

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

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

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

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

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