Wednesday, February 03, 2016

"Do sex offenders deserve a scarlet letter on their passport?"

The question in the title of this post is the headline of this Los Angeles Times editorial.  Here is how it starts:

After rousing themselves from the 30-plus-year bad trip that was the war on drugs — or rather, the war on drug users — many Americans in and out of elected office looked around for someone else to persecute.  Someone, somewhere, must be so depraved and hateful that liberals and conservatives, Democrats and Republicans could join in common cause to vilify them.

They appear to have found their target: sex offenders.  The current case in point is a congressional proposal to alert the nations of the world that particular U.S. citizens who have committed sex offenses against minors are planning to visit.  Passports would be specially marked so that other countries could turn travelers away at the border because of old crimes for which they have already served their time in the U.S.

This vindictive bill has been wisely rejected numerous times in the past, but now it's heading to President Obama's desk.  He should veto it.

Sex offenses against minors are particularly horrendous crimes.  But when offenders have completed their sentences and periods of supervision, there is no more reason to continue hounding and harassing them than convicted murderers or drug traffickers, who don't bear scarlet letters on their passports.

But wait, some supporters argue, people who commit sex crimes against children are a special case.  As soon as they've done it once, they'll want more, posing imminent danger to any underage person anywhere.  Their front doors should be marked to warn trick-or-treaters.  They should be banned from park benches.

This blatantly false argument thrives on ignorance.  There are indeed mentally disordered sex offenders whose conditions make them extremely high risks to commit more crimes of the same variety.  Some may target minors.  But that is far different from saying that anyone convicted of a sex offense against a minor falls into that very narrow category.  Corrections officials in California report that most sexual crimes committed by adults against minors occur among family members, and that the rate of recidivism is fairly low.

Prior related post:

February 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (29)

Tuesday, February 02, 2016

"International Megan's Law" heading now to Prez Obama's desk

As reported in this dispatch from The Hill, the US House of Representatives "easily cleared legislation on Monday to expand efforts within the Department of Homeland Security to track registered child sex offenders’ travel plans as a means of combatting human trafficking."  Here is more about a bill often called an international Megans Law:

The measure, passed by voice vote, would codify the Department of Homeland Security’s (DHS) “Operation Angel Watch” program that determines whether countries should be notified of sex offenders’ travel.  Under the legislation, sex offenders would be required to report to law enforcement when they plan to travel internationally.  Sex offenders who fail to comply would face up to ten years in prison.

In addition, the State Department will be obligated to create a unique identifier for child sex offenders’ passports.  Lawmakers said the provisions would help prevent sex offenders from trying to break the law undetected.  “Child predators thrive on secrecy,” said Rep. Chris Smith (R-N.J.), the bill’s author.

The House previously passed a version of the bill last January, and the Senate later approved it with amendments by unanimous consent in December.  Congress last year approved legislation to create a fund for victims of sex trafficking and give prioritize states for federal grants if they establish “safe harbor” laws for child victims of trafficking.

Last month here at The Volokh Conspirary, David Post expressed concerns about this legislation. The title of the post reveals the basic nature of his concerns: "The yellow star, the scarlet letter, and ‘International Megan’s Law’."  The Marshall Project has this new piece echoing similar themes under the headline "Congress Acts to Mark Passports of Sex Offenders: Target of legislation is sex-traffickers; critics call it a ‘scarlet letter’."

February 2, 2016 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (13)

Monday, February 01, 2016

Seventh Circuit panel upholds Wisconsin's lifetime GPS monitoring for certain sex offenders against various constitutional complaints

As reported in this local Wisconsin article, headlined "Court upholds GPS tracking of sex offender convicted before law passed," a Seventh Circuit panel late last week reversed a district judge's determination that a Wisconsin law requiring lifetime GPS tracking of certain sex offenders was constitutionally problematic. Here are the basics from the start of the news report:

Making a Wisconsin sex offender wear a GPS anklet for life, when he was convicted before that was the law, does not violate the constitutional prohibition against retroactive punishment, a federal appeals court has ruled.  A three-judge panel of the 7th U.S. Circuit Court of Appeals on Friday reversed a Green Bay federal judge who found the lifetime tracking improper for 72-year-old Michael Belleau.  The case had been argued before the court earlier this month.

In 2012, two years after Department of Corrections officials affixed an ankle bracelet on him after his discharge from civil commitment, Belleau sued, claiming the practice amounted to an ex post facto law, banned by the Constitution, as well as unreasonable search and seizure without a warrant.

In September, Chief U.S. District Judge William Griesbach agreed, saying Belleau had served his sentences and couldn't be punished further just because the state now thinks the original sentence was too lenient.  "Nor may the state force Belleau to wear a GPS tracking device around his ankle so that it can record his movement minute-by-minute for the rest of his life because it believes he might commit another crime in the future," Griesbach wrote. "The state's authority over the individual is not unlimited."

But Judge Richard Posner agreed with the state's position that the GPS monitoring is merely regulatory, not punitive, and doesn't limit where Belleau can go, like someone on probation.  Posner also agreed that it's not an illegal retroactive law because the monitoring was triggered by Belleau's discharge from civil commitment in 2010, after the GPS law took effect in 2006, not his earlier criminal convictions.  "So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor."

The full ruling in Belleau v. Wall, No. 15-3225 (7th Cir. Jan. 29, 2016), which rejects both a Fourth Amendment claim and an ex post facto claim lodged by the sex offender to the lifetime GPS requirement, is available at this link.

February 1, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (8)

Saturday, January 30, 2016

Judge Jack Weinstein disregards severe federal child porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

Saturday, January 23, 2016

New Jersey appeals court upholds parole board's monitoring of sex offenders using lie detector machines

As reported in this local article from New Jersey, a local "appeals court on Thursday upheld the state Parole Board's use of polygraph tests to monitor sex offenders after their release from prison." Here is more about the extended ruling:

The panel of state judges largely rejected the argument of five sex offenders sentenced to lifetime supervision that the tests amounted to coerced interrogations that violated their constitutional rights.  The court found, however, that the board must take steps to protect the offenders' right against self-incrimination and that the test results alone could not be used to justify punishment.

Under state law, all sex offenders sentenced to lifetime monitoring can be subjected to the examinations, popularly referred to as "lie detector" tests.  The tests are used to help parole officers determine whether the offenders are adhering to treatment plans and the terms of their parole.  But critics point out that the tests can be unreliable, and their results aren't allowed to be used as evidence in most criminal cases.

Currently, there are 7,469 offenders being monitored by the state that could be subject to polygraph tests.  Samuel J. Plumeri, Jr., the vice chairman of the New Jersey State Parole Board, said in an e-mail the use of the tests was "dependent upon an assessment" of each offender's case....

A 2009 Parole Board report on the use of polygraph tests described them as "an essential tool" for monitoring sex offenders.  The technology, the report found, "appears to encourage honesty with parole officers and treatment providers" and prevent convicts from re-offending.

But Michael C. Woyce, an attorney for the five sex offenders — whom the court identified only by their initials — argued the tests were unconstitutional because the subjects weren't permitted to have an attorney present, weren't read their Miranda rights and could face sanctions by refusing to answer "intrusive" questions.  The Public Defender's Office, which also argued in the case, also called the tests both "unfair" and "extremely unreliable."

Woyce said the technology has largely fallen out of favor in criminal courts, but persists in the monitoring of sex offenders because of the stigma attached to their crimes.  "Being labeled a sex offender is a scarlet letter," Woyce said. "Because of that, the courts often — not always, but often — treat them differently."  Woyce said offenders who do not cooperate or perform poorly on the tests can have their access to the internet revoked, be prohibited from traveling out of state, or be subject to GPS monitoring without due process.

The court rejected the sex offenders' argument that they were entitled to have an attorney present during the tests under the Sixth Amendment, finding they were not the same as a criminal interrogation.  "The subject can face later consequences if he chooses to leave before the examination is completed but, unlike an arrestee at a police station, he is not subject to immediate confinement if he refuses to cooperate," the judges wrote.

But recognizing that New Jersey courts consider polygraph test results "unreliable proof," the 72-page ruling prohibits parole officers from using them "as evidence to justify a curtailment of an offender's activities."  If in the course of a polygraph an offender admits any wrongdoing, that could be used against them, however, and the court ordered the board to adopt "regulations and practices to protect the offenders' privileges against self-incrimination."

The full ruling in JB v. New Jersey State Parole Board, No. A-5435-10T2 (NJ App. Jan. 21, 2016), is available at this link.

January 23, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (10)

Friday, January 08, 2016

"Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response"

The title of this post is the title of this notable paper authored by Paul Cassell and James Marsh now available via SSRN. Here is the abstract:

In this article, we have reviewed the legal issues surrounding restitution for child pornography victims.  In our view, the Supreme Court’s Paroline decision failed to fully implement the congressional mandate that victims receive restitution for the “full amount” of their losses.  Congress should move swiftly to ensure full restitution for child pornography victims by enacting the proposed Amy and Vicky Act — a more rational scheme for awarding restitution.

After the Supreme Court's Paroline ruling in April 2014, a number of reasonable folks reasonably predicted that Congress could and would move quickly to pass legislation to remedy the victim-oriented concerns stressed in this article. But, now nearly two years later, "Paroline fix" legislation seems stuck in Congress while victims like Amy and Vicky and others wait and wait for statutory reforms that, in the words of this article, would create "a more rational scheme for awarding restitution."

January 8, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, January 02, 2016

"Throwaway Children: The Tragic Consequences of a False Narrative"

The title of this post is the title of this notable new paper authored by Catherine Carpenter now available via SSRN. Here is the abstract:

Truth be told, we are afraid for our children and we are afraid of our children.  The intersection of these disparate thoughts has produced a perfect storm.  We have created increasingly harsh sex offender registration schemes to protect our children from sexual abuse.  At the same time, fear of our children ensnares and punishes them under the very same laws that were designed to protect them.  Yet, what compels action is premised on a false narrative that includes flawed studies on recidivism rates and misguided case decisions that embraced these findings.

In this article, I explore the inherently unfair and deeply flawed practice of mandatory lifetime registration for children who commit sex offenses.  Examination reveals two fallacies in a system that condemns children to lifetime monitoring: the breadth of its ensnarement, and the presumption of a child’s continued sexual predatory behavior. Fueled by emotional rhetoric, both are tightly bound in a fundamentally false narrative that is unnecessary and wholly damaging for the child registrant.

The utility of an overly-simplified registration scheme comes with a hefty price tag: the acknowledgement that mandatory lifetime registration captures and shatters the lives of many non-dangerous children.  It is a price tag we should no longer be willing to bear.  In the face of overwhelming statistical evidence to the contrary, we must commit to changing the false narrative that children who commit sex offenses are presumed to become sexually dangerous adults.  We must commit to replacing it with a narrative that acknowledges that recidivism rates are low and that mandatory lifetime registration is both unnecessary and devastating.

January 2, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Wednesday, December 30, 2015

How can a sex offender prove he is no longer a threat ... three decades after molesting a child?

The question in the title of this post is prompted by this local article about a state court ruling from New Hampshire headlined "Judge rules convicted sex offender must remain on registry until he can prove he is no longer a threat." Here is the interesting backstory:

A Manchester sex offender convicted 28 years ago will remain a lifetime registrant unless and until he proves he is no longer a threat, which, at least for now, he can ask to do at any time, a judge in Concord has ruled.  The decision, issued last week and distributed Monday by Merrimack County Superior Court, caps the latest phase in a years-long campaign by the man, identified by the court under the pseudonym John Doe, to become eligible for public housing.

Doe’s real name is Norman St.  Hilaire. He has long pressed to be removed from the state’s public registry of sex offenders, arguing that his conviction predated its creation.  More recently, though, he asked the court to table that question and instead recognize that a recent state Supreme Court decision effectively lifts his lifetime status -- a smaller change, but one that could be enough to secure him housing eligibility.

In his new ruling, Judge Richard McNamara quickly rejected the request, writing that the higher court’s decision allows St. Hilaire to change his status only if and when he proves he is no longer a threat.  “If he never succeeds in showing that he is not a danger to the public, he must continue to register,” McNamara wrote.  “It follows that the only accurate way to describe his status at the current time is that of a lifetime registrant.”

St. Hilaire is currently a Tier III “lifetime” offender, the state’s highest sex offender category.  His attorneys had claimed he should no longer be classified as such because he now has the chance to petition to get off the registry, a privilege unavailable to Tier III offenders convicted after the registry’s creation in the early 1990s.  Tier III offenders convicted today have no opportunities to get off the list.

St. Hilaire’s case was scheduled for an evidentiary hearing in November, but he backed out shortly before, citing his victim’s request to testify.  She and victims advocates suspect he was worried she would easily derail the effort by describing the abuse and possibly disclosing new allegations (though the statute of limitations on new charges involving her has passed).

McNamara’s ruling was only a partial win for state prosecutors, who not only objected to St. Hilaire’s petition but also asked that he be barred from bringing another request for five years.  Like the Supreme Court, McNamara deferred to the Legislature on that question, saying it’s their responsibility to set parameters for how frequent the reviews should be.

Several state lawmakers are proposing new parameters, and hearings on their legislation, sponsored by Republican Senate Majority Leader Jeb Bradley and two dozen others, are expected to begin next month.  The bill prohibits offenders from getting off the list if they have been convicted of serious crimes since their original convictions. Among other things, it also requires that victims get the chance to address the court, and that offenders whose petitions have been denied wait five years before petitioning again.

Amanda Grady Sexton, director of public policy for the New Hampshire Coalition Against Domestic and Sexual Violence, said the proposed language mirrors the requirements in place for lower tiered offenders who want to be removed from the registry. Sexton called McNamara’s ruling “a big win for victims.”...

In arguing earlier this month for the five-year ban, Assistant Attorney General Dianne Martin said the victim, now in her 40s and living out of state, “had to go through preparation for this case, and she had to relive all the events that she suffered as a child.” She should not have to constantly wonder if and when St. Hilaire will bring another petition, Martin said.

Chapman countered that St. Hilaire, who is 66 and has physical disabilities, had no plans to request a hearing, but hoped to reserve the right to do so in case his physical condition deteriorates further.  St. Hilaire has not been present for the court proceedings. He was arrested last month and charged with failure to register, a felony.  Police have said he created a Facebook account but never reported it, as required. He is out on bail and was scheduled for an arraignment at the end of this month.

St. Hilaire was convicted three decades ago of molesting the woman when she was a young teen in Hooksett, once in 1983 at Lambert Park and again the next year at their home, where the woman’s mother and three other children also lived. He was placed on probation and ordered to attend sex offender counseling, which he did weekly for two years. In an interview last month, the victim said the abuse was far more pervasive than the convictions reflected.  She said St. Hilaire sexually abused her numerous times over a decade, starting as a toddler and continuing into adolescence. 

December 30, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (11)

Thursday, December 24, 2015

"Child Pornography Sentencing in the Sixth Circuit"

The title of this post is the title of this notable new papaer by Carissa Byrne Hessick now available via SSRN. Here is the abstract:

This Symposium Essay explores and analyzes the Sixth Circuit’s approach to child pornography sentencing.  It critiques the Sixth Circuit’s decision to apply heightened scrutiny to below-Guideline sentences for child pornography possession.  In addition to presenting a critique of the Sixth Circuit’s cases, the Essay also provides guidance for defense attorneys seeking a below-Guidelines sentence.  It notes that there are particular strategies those attorneys should follow in order to secure not only a more lenient sentence from a district court judge, but also a sentence that is more likely to be upheld by the Sixth Circuit on appeal.

During the course of this discussion, the Essay identifies and criticizes three significant features of the Sixth Circuit’s cases in this area.  First, it notes that the Sixth Circuit is the only circuit to have adopted heightened appellate review of below-Guideline sentences for child pornography possession.  Second, it explains that the Sixth Circuit appears to be developing a common law of sentencing in child pornography cases; such a common law is contrary to the language and the logic of the Supreme Court’s Sixth Amendment sentencing cases.  Finally, it explains that the Sixth circuit has failed to give appropriate deference to district court decisions to sentence below the Guidelines based on facts and circumstances of particular cases.

December 24, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, December 20, 2015

Michigan Supreme Court takes up punishing questions about lifetime sex offender registration

As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago."  Here is more about the case and context:

The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.

In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”

The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.

The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:

The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.

The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)

Sunday, December 13, 2015

Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification

A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification.  Here is how the opinion starts:

We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.  The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense.  In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence.  In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights.  We agree.  For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.

December 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, December 09, 2015

Jared Fogle's partner in sex crimes scheduled for sentencing

This Indianapolis Star article, headlined "Russell Taylor turns on Jared Fogle as he awaits sentencing," reports at length on the sad sorted backstory for this week's federal sentencing of the crime partner of a high-profile federal sex offender. Here is how the extended article gets started:

Russell Taylor and Jared Fogle had much different backgrounds, but their lives became intertwined to the point that people started calling them "an old married couple." Fogle was sent to prison last month for more than 15 years on child pornography charges, and Taylor will stand before the same federal judge Thursday to learn his fate.

While degrees of depravity for child pornographers might be hard to accept, the man leading the prosecution used his toughest designation on Taylor. "In every respect, he's a monster," Assistant U.S. Attorney Steven DeBrota said at Fogle's sentencing. But, DeBrota added, Taylor is a monster Fogle helped create.

The sentencing in U.S. District Court for the Southern District of Indiana marks the end of a shocking Hoosier child pornography case that attracted international attention because of Fogle, the former Subway sandwich pitchman.

Taylor, who headed Fogle’s charitable foundation from 2009 until his arrest in April, has agreed to plead guilty to 12 counts of producing child pornography and one of distributing. The production charges involve images of a dozen children between the ages of 9 and 16, including family members, that Taylor secretly recorded in his home and then shared with Fogle.

As part of a plea deal, prosecutors are asking for a sentence of 35 years, while Taylor’s attorneys want a prison term of 15 to 23 years. Taylor has been in jail since his arrest. The length of Taylor’s sentence will be decided by Judge Tanya Walton Pratt, who is not bound by terms of the plea agreement.

Under federal law, Taylor faces a minimum sentence of 15 years. The maximum is 380 years if Pratt issues the longest sentence on all counts — 30 years for each count of production, 20 years on the distribution count — and orders them to be served consecutively, not concurrently.

The sentencing will close the door on the criminal case. Yet questions will linger, including why nobody, especially Taylor's wife, knew or intervened until an Indianapolis woman alerted police in September 2014 to Taylor's interest in child pornography and bestiality.

The facade of Fogle and Taylor promoting healthy lifestyles and helping young people came crashing down months later, revealing two married fathers who sought out strippers and prostitutes, drank heavily and dove into the seamy world of child pornography with virtually no level of depravity too taboo. They were, literally, partners in crime.

The prospect of growing old in federal prison, however, brought an acrimonious end to what Taylor described as a “12-year run” in which he and Fogle lived the high life, traveling the world and meeting celebrities — while carrying on debauched double lives. Since their arrests earlier this year, Taylor and Fogle have turned on each other, admitting their own guilt but attempting to minimize their roles and cast the other as more reprehensible.

The rise and fall of the men is detailed in hundreds of pages of court records from the two criminal cases. How much of their stories are true is hard to tell. Both men were desperately maneuvering to avoid long prison sentences when they submitted their version of the facts to the judge.

December 9, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, November 19, 2015

Jared Fogle given (above-guideline and above-prosecutor-recommend) sentence of 188 months in federal prison for sex offenses

As reported in this local article, "Jared Fogle was sentenced to 15 years, eight months in prison Thursday for possession and distribution of child pornography and traveling across state lines for commercial sex with a minor." Here is more about the sentencing:

Judge Tanya Walton Pratt announced the sentence for the former Subway pitchman in federal court in Indianapolis. Fogle was taken into custody of the U.S. Marshal after the four-hour, 42-minute hearing. He was handcuffed behind his back and led out of the courtroom as family members hugged and cried.

Immediately after the hearing, Fogle blew a kiss and waved goodbye to family members in the front row. About a dozen family members and friends attended the hearing. The sentence is more than the 12 1/2 years that prosecutors agreed to seek in a plea deal. Pratt said the advisory sentence range of 135 to 168 months "does not sufficiently account for the defendant's criminal conduct."

Federal prisoners must serve at least 85 percent of their sentences. The judge recommended that Fogle be sent to a prison in Littleton, Colo., because of its program for sex offenders.  "Federal judges do not sentence based on emotion or public sentiment," Pratt said. She added, "The level of perversion and lawlessness exhibited by Mr. Fogle is extreme."

She described Fogle, 38, as having had a "privileged" upbringing before becoming "obsessed" with sex and minors. Pratt talked about Fogle's journey from being morbidly obese while at Indiana University to losing weight and being discovered by Subway.  "What a gift to have such a professional windfall fall in your lap," Pratt said.

Pratt said she believes Fogle is sincere in his remorse and took into account the $1.4 million in restitution he has paid. "This defendant's celebrity cuts both ways," she said. "He will likely get protection when he goes to the Bureau of Prisons."

Prior related posts:

November 19, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (34)

Thursday, November 12, 2015

Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle

As reported in this local article, headlined "Prosecutor to ask court to sentence Jared Fogle to 12.5 years," the feds have filed their sentencing recommendations in the child sex prosecution of former Subway pitchman Jared Fogle. Here are some of the details via the press report:

A court filing by prosecutors in advance of Jared Fogle's sentencing next Thursday tells the judge she must send a message to others involved in child exploitation.  Fogle, the former Subway pitchman, has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.

The prosecutor is asking U.S. District Judge Tanya Walton Pratt to sentence Fogle to 12-1/2 years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. Attorney had agreed to seek in a plea bargain struck with Fogle in August.  Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

"Persons with a sexual attraction to young children may be difficult to deter, but these sentences matter," the document said.  "These offenders frequently communicate with each other online and they are concerned about the law enforcement efforts. "In many ways, the results of these cases help to deter and teach by example.  There is no avoiding the point that, whatever the result, in this matter, it will be closely watched by current and potential offenders who have not yet been identified."

The document said that Fogle "repeatedly expressed sexual fantasies concerning children to multiple persons," but despite exhaustive investigation, "no victims under the age of 18 years could be specifically identified from those victims already charged in this case."  Prosecutors have identified 14 victims.  Prosecutors said in the filing that they were trying to prevent more trauma to the victims in a high-profile case that has already caused "substantial anguish."

"A public trial would only have made this process of healing even more protracted and difficult, without changing the outcome," the filing said. Among the new information in the court filing:

• Fogle paid for sex from adults "on hundreds of occasions."

• Some of the commercial child pornography he had, which prosecutors believe was produced in Eastern Europe, included actual or simulated sexual intercourse by children as young as 6.

• Russell Taylor, former head of Fogle's foundation, who has also agreed to plead guilty to child porn charges, gave minors drugs, alcohol and money to induce them into sex acts. Two of the minors were 14 years old.

Taylor will be sentenced Dec. 10. In his case, prosecutors agreed not to seek a sentence of more than 35 years in prison.  Taylor agreed not to ask for less than 15 years in prison.

The new court filing said that Fogle rationalized his viewing of child porn made by Taylor. Because Taylor was going to secretly produce the material anyway, "he might as well benefit from the production by seeing the results, which interested him."

Prosecutors noted that Fogle had a "good childhood" and that his wife, who has filed for divorce, "had no idea he was doing any of these things."

Prior related posts:

November 12, 2015 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Split Ohio Supreme Court rejects constitutional challenge to registration requirement for 21-year-old who had consensual sex with 15-year-old

Any and all college guys in Ohio who may still be dating younger high school girls will want to know about the new Ohio Supreme Court opinion in Ohio v. Blankenship, No. 2015-Ohio-4624 (Nov. 12, 2015) (available here). Here is how the majority opinion gets started:

Appellant, Travis Blankenship, challenges as cruel and unusual punishment the sex-offender-registration and address-verification requirements imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging in unlawful sexual conduct with M.H., a 15-year-old, when he was 21. Because we hold that the Tier II registration requirements imposed upon him are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and to the community’s sense of justice, we affirm the judgment of the court of appeals.

The chief dissent gets started this way:

The framework within which an issue is presented can unduly influence the outcome. For example, if you ask a stadium full of people whether requiring a Tier II sex offender to comply with certain reporting requirements shocks their sense of justice, you are unlikely to receive a single affirmative response.  But... but add that the offender was an adult male who had sex with a 15-year-old girl ...[and] add that the offender was a 21-year-old male, that the 15-year-old girl consented, and that the registration and address-verification requirements must be complied with every six months for 25 years, and now we are at the threshold.  Many will see the consent as a mitigating factor, many will see the relatively modest age difference as a mitigating factor, and many will see the 25-year time period as unnecessarily long.  As the majority notes, and I acknowledge, these potentially mitigating factors are not statutorily relevant, but they are nevertheless constitutionally relevant.

Assume further that the offender has been determined by a psychologist to have none of the characteristics of a sex offender and to have a low risk of reoffending. There would be many who would be shocked at the severity and length of the punishment, i.e., the reporting requirements.  Assume all of the above and add that the offender could have received a sentence of up to 18 months, see R.C. 2929.14(A)(4), that he was sentenced to six months in prison (the shortest term possible), and that a judge released him after he had served a mere 12 days.  Now the community’s sense of justice has been violated.  Few would deem it appropriate to require a person who committed a crime that warranted a 12-day sentence to comply with reporting requirements every six months for the next 25 years.

The touchstone of federal cruel-and-unusual-punishment analysis is that the punishment must be proportional to the crime. Weems v. United States, 217 U.S. 349, 367 (1910). The case before us fails this standard.

November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

Saturday, November 07, 2015

Split NC Supreme Court upholds state prohibition on sex offenders using social media available to kids

As reported in this local article, yesterday the "N.C. Supreme Court has upheld a state law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join." Here is more about the notable ruling:

In the split opinion issued Friday, the justices reversed an N.C. Court of Appeals ruling that found the 2008 law too broad and vague, and therefore unconstitutional. The challenge was brought by Lester Gerard Parkingham Jr., a registered sex offender in North Carolina, who faced additional charges after Durham police found a Facebook page he created under an assumed name.

The case raises questions about whether such laws prohibit sex offenders from participating in web-based forums, which have become virtual town squares, as they re-enter society. The four justices in the majority ruled that the “incidental burden imposed” upon convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”

Writing for the majority, Justice Robert Edmunds stated, “the General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors. For example, Edmunds wrote, the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.

Edmunds wrote that the law is meant to limit conduct and that it only incidentally affects speech. “The justification of the statute — protecting minors from registered sex offenders — is unrelated to any speech on a regulated site,” he wrote.

Emails and text messages aren’t restricted by the law. “Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.

Justice Robin Hudson dissented, and Justice Cheri Beasley joined her in a minority opinion describing the law as unconstitutionally vague. They contended that the law prohibits sex offenders from “communicating with others through many widely used commercial networking sites.” It also could restrict sex offenders from joining news sites and being able to use retailers such as Amazon....

In North Carolina, where 14,268 people are entered in the N.C. Sex Offender and Public Protection Registry database, civil liberty organizations have paid close attention to Packingham’s case. The 2008 restriction was part of a legislative package that N.C. Attorney General Roy Cooper advocated for years. Packingham argued that prohibiting him from those social media sites is a violation of his rights to “free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.”...

Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued several years ago that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search. The law defines a “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions and allows users to create pages to post information.

The full ruling in North Carolina v. Packingham, No. 366PA13 (N.C. Nov. 7, 2015), is available at this link. The majority opinion in this case explained why the court believed that the North Carolina statute being challlenged was more narrowly tailored than somewhat similar statutes struck down by federal courts in Indiana and Louisiana. But the dissent cites some recent US Supreme Court rulings to make the case that the NC statute is still not sufficiently limited to be compliant with the First Amendment.

Though I am never good at predicting whether and when the Supreme Court will take up an important criminal justice issue, I would not be at all surprised if the Justices show some interest in this case if (when?) the defendant were to seek certiorari.

November 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Friday, November 06, 2015

SCOTUS grants review on federal/international sex offender registration issue

The big news from the US Supreme Court's order list this afternoon is the grant of review on another issue concerning the intersection of religious liberty and Obamacare requirements.  But sentencing fans might be interested to see SCOTUS also took up a federal case involving sex offender registration laws: by granted cert on just question 1 in the case of Nichols v. United States, the Justices will consider later this Term "whether 42 U.S.C. $ 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals."  

November 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Saturday, October 31, 2015

"Is Halloween Really More Dangerous for Kids?: A lack of evidence doesn’t stop cities from rounding up sexual offenders on the holiday."

Halloween-MGNThe title of this post is the headline of this recent Marshall Project piece that seems fitting to spotlight on October 31.  Here is an excerpt (with links from the original):

Despite research showing no evidence that children are at greater risk of experiencing sex abuse on Halloween than on any other day, states and localities around the country impose severe restrictions on registered sex offenders during the holiday.

Some, including parts of Virginia, Georgia, Delaware and Texas, require sex offenders on probation or parole report to designated locations. O thers, such as Missouri, Florida and Nevada, direct some offenders to post signs on their doors that say, “No candy or treats at this residence.”  Broader restrictions in most states direct people on the registry to keep their lights off to deter trick-or-treaters and stay away from children in costumes in their neighborhood or at the local mall.

Before a 2014 ACLU complaint, the Plaquemines Parish Sheriffs Office in Louisiana required all registered sex offenders post this sign on their front lawn on Halloween.

For more than six years, the Gaston County Sheriff’s Department in North Carolina has ordered sex offenders who are still on parole to report to the courthouse on Halloween, said Capt. Mike Radford, who helps to oversee the program.  “We keep them in one big courtroom and call people in and out to do random drug testing and vehicle searches, and we have guest speakers,” he said.  “If they don’t show up, we pick them up and arrest them.”  Radford said he doesn’t know why the program began but believes it is because Halloween presents “easy accessibility to a minor.”

The laws began to proliferate nationwide in the 1990s, when the fear of a predator who lures young children into his home with candy arose amid other concerns, such as poisoned treats and razor blades in apples.  “Going back decades, there is this sense that there are these dangers to children on Halloween,” said Jill Levenson, a clinical social worker and associate professor at Barry University in Florida.

But studies have shown that more than 90 percent of children who are sexually abused know their abuser, who is often a family member or close acquaintance. A Bureau of Justice Statistics report showed that only 7 percent of those who sexually abused juveniles were strangers to their victims.

Levenson co-authored a study that examined the Halloween effect by looking at sex crimes against children between 1997 to 2005.  The researchers analyzed more than 67,000 crimes in which the perpetrators were strangers, acquaintances, and neighbors.

In a year-by-year comparison that zeroed in on Halloween, the researchers found no variation in number or types of crimes committed, even as more laws were added.  But that’s not the message families hear in the weeks before Oct. 31, when articles with headlines such as “Homes to Watch Out for This Halloween,”which run the addresses of local registered sex offenders, are common.

October 31, 2015 in Collateral consequences, Criminal Sentences Alternatives, National and State Crime Data, Sex Offender Sentencing | Permalink | Comments (9)

Thursday, October 29, 2015

States find (unsurprisingly) that civil commitment for sex offenders not a simple solution

This lengthy New York Times article, headlined "States Struggle With What to Do With Sex Offenders After Prison," documents some of the difficulties states have had with sex offender civil commitment programs. Here are excerpts:

Minnesota’s civil commitment program — which detains more people per capita than any other state — is facing an overhaul.  Earlier this year, a federal judge found it unconstitutional, calling it “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”  The judge, Donovan W. Frank, of Federal District Court in St. Paul, is expected to order changes to the program as soon as this week.

Minnesota is not alone in revisiting its policies.  In Missouri, a federal judge last month found that state’s program violated people’s right to due process, potentially imposing “lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.”  Of about 250 people held since Missouri began committing people in 1999, state officials say seven have been granted what the state considers release with court­ordered restrictions, though some of those men remain in a group­-home-­like setting behind razor wire at a state facility.

In Texas, which previously had a unique outpatient method for treating sex offenders civilly committed after their prison sentences, the Republican-dominated State Legislature this year revamped the program after a Houston Chronicle investigation found that none of the hundreds committed to the program had ever graduated from it.  The investigation also found that nearly half of the men detained for treatment while living in halfway houses and other facilities were actually sent back to prison for breaking the program’s rules.

“My sense was that we had to make changes or a federal court is going to strike down the whole program, and we need this program — some of these people would scare the hell out of you,” said State Senator John Whitmire, a Democrat who helped push through the overhaul, which included opening a former prison in remote Littlefield to house the detainees.  “The way it was, it just looked like incarceration with double jeopardy,” Mr. Whitmire said.  “This at least holds out a pathway to graduate.”

Civil commitment gained support in the 1990s amid reports of heinous sex crimes by repeat offenders.  Today, 20 states, along with the federal government, detain some sex criminals for treatment beyond their prison time.  But not all have been as sharply criticized as Minnesota’s program.  In Wisconsin, 118 offenders have been fully discharged from commitment since 1994, and about 135 people have been given supervised release, according to Judge Frank.  New York had sent home 30 people and moved 64 people out of secure facilities for the civilly committed and into strict supervision and treatment, Judge Frank wrote.

But the picture in Minnesota looks far different.  Since the current program was created in the mid­-1990s, civil commitments have soared.  The abduction, rape and murder in 2003 of Dru Sjodin, a North Dakota college student, by a sex offender who had been released six months earlier enraged residents and set off a wave of efforts by county attorneys to call on judges to hold such offenders after their prison terms.  Minnesota now has the highest population of civilly committed offenders per capita — nearly all men — in the nation, Judge Frank found, and the lowest rate of release.  And costs have soared — to about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota, the judge said.

Yet even in a state that is often seen as liberal­-leaning, changing the policy is politically fraught. Gov. Mark Dayton, a Democrat, faced intense criticism before his last election over whether to release from commitment — with strict conditions — a serial rapist who had admitted attacking at least 60 women.  And proposals aimed at paying for regular risk evaluations for committed people, as well as other changes, have stalled in the State Legislature.  “It’s really a stalemate now because the House Republicans have made it clear that anybody who supports any kind of step forward is going to be castigated in the 2016 elections,” Mr. Dayton said.

October 29, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8)

Sunday, October 18, 2015

Sex offenders in San Diego sue over strict Halloween rules

As reported in this Los Angeles Times article, headlined "Halloween rules to protect children violate sex offenders' rights, lawyer says," another season of spooks and sex offender restrictions is bringing another round of suits.  Here are the basics:

As a safety precaution, state authorities have imposed Halloween restrictions on sex offender parolees, barring them from putting up decorations or passing out treats. And in San Diego County, they are required to post signs outside their homes discouraging trick-or-treaters from approaching.

A lawyer and activist from Santa Maria, Calif., wants to change that. She filed a lawsuit last week in San Diego federal court on behalf of an unidentified Chula Vista man, accusing the state of violating his rights and those of other registered sex offenders.

"For them, Halloween truly is a night of horrors," said Janice Bellucci, who also is president and founder of California Reform Sex Offender Laws. The organization is "dedicated to protecting the U.S. Constitution by restoring the civil rights of individuals required to register as sex offenders in California," according to court documents.

Bellucci said many parolees don't know how officers are going to interpret the special conditions on Halloween night. She said she's received calls from people with concerns that they might be violating parole if they turn on the porch light for a visiting relative or if they post a pumpkin drawing on the refrigerator created by one of their own children. "They don't know truly what is required of them," Bellucci said....

For more than 20 years, the department has run what it calls Operation Boo, a statewide Halloween night event in which parole officers and other law enforcement conduct compliance checks on known sex offenders. The goal is to make sure that sex offender registrants aren't attracting children to their homes....

According to the lawsuit, requiring parolees to post signs on their front doors encourages speech in violation of their 1st Amendment rights. It also invites harm to themselves, the people they live with and their property by forcing parolees to "advertise" their status as registered sex offenders.

Bellucci contends in the suit that state authorities enforce the Halloween policy in an "arbitrary and unreasonable manner," taking no account of the age of a sex offender's conviction or whether it involved a crime against a child.... Bellucci has filed similar lawsuits against the cities of Simi Valley and Orange over Halloween restrictions on registered sex offenders — "registered citizens," as she prefers to call them — including mandatory sign requirements. She said officials repealed the laws and the suits were dismissed.

Last year, parole agents arrested 62 of the 1,294 sex offender parolees who were contacted during Halloween night compliance sweeps throughout the state. The arrests were on charges of possession of child pornography, narcotics, weapons and other parole violations, state authorities said.

October 18, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6)

Wednesday, October 14, 2015

Prospect of civil commitment leads UK judges to refuse to extradict child sex offender back to US

A helpful reader alerted me to this notable story about a notable legal ruling from across the pond last week.  The piece is headlined "Judges refuse to extradite 'paedophile' unless his human rights are guaranteed," and here are excerpts:

UK judges are refusing to extradite an alleged American paedophile who has been on the run from the FBI since 2007 until they have received an assurance that his human rights will not be breached.

The two judges sitting at the High Court in London made it clear that if no assurance is given they will refuse to hand over Roger Giese, 40, to stand trial in California, where is charged with sexually abusing a boy under the age of 14 from 1998 until 2002. The former choir master has been living in a village in Hampshire under a different name and working for a PR company.

An extradition request from the United States was certified by the Home Office in May 2014, and Giese was arrested on June 4 last year. But Magistrates' Court District Judge Margot Coleman refused the request last April.

She ruled there was "a real risk" that Giese would be subjected to an order for civil commitment - a form of indeterminate confinement in a secure facility - if convicted of a series of sexual offences against the boy. Judge Coleman said such an order would be a "flagrant denial" of the European Convention on Human Rights (ECHR).

The US government appealed against Judge Coleman's decision, but today it was upheld by the High Court, which gave the US authorities a deadline to assure the court that, if Giese was found guilty, "there will be no attempt to make him the subject of a civil commitment order".

Lord Justice Aikens and Mr Justice Holroyde stated in a joint written judgment that Judge Coleman was right to conclude that extradition would be "inconsistent" with Giese's ECHR rights. The judges said that if no assurance was given "in due time", the US government appeal for the right to extradite "must be dismissed".

Giese is wanted in Orange County, California, for allegedly committing "lewd acts" with a child. He is alleged to have befriended the boy in 1998, when he was working as a voice coach for the All-American Boys Chorus. He fled the US eight years ago just as he was about to stand trial.

According to a Mirror newspaper investigation, he set up home with a new partner in the Hampshire countryside. There was no suggestion she knew about his past. Together, the pair built a PR company with clients including travel giants Thomas Cook....

California is one of 20 states in the USA which have a system of civil commitment, the High Court heard. A commitment order can be imposed against "a person of unsound mind" deemed to be dangerous who has been convicted in the criminal courts and served a sentence for certain types of sexual offence.

The High Court judges said the fact that the US government was not prepared to state that no petition for civil commitment would be filed in the case of Giese did give rise to an inference that there was a real risk of that happening.... But the judges added that Giese's extradition was not being sought to make him subject of a civil commitment order but so that he could stand trial "in respect of 19 serious charges of sexual offences" against a young boy. They ruled the US government should be given a further opportunity to offer "a satisfactory assurance" that if found guilty "there will be no attempt to make him the subject of a civil commitment order".

The full 27-page ruling referenced in this article can be accessed at this link.

October 14, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Friday, October 09, 2015

Highlighting who is now highlighting the inefficacy of sex offender registries

This new local Ohio article, headlined "Sex offender registries draw criticism from some unlikely sources," spotlights that some perhaps unexpected voices are advocating against sex offender registries. Here are excertps (with links from the source):

You might think that all advocates for rape victims would support the practice of forcing sex offenders to publicly register their addresses after their release from prison. But you would be mistaken.

Growing numbers of victim advocates and criminal justice researchers are among those who have concluded that sex offender registries are too costly and provide little or no protection to the public.  "The registry gives the appearance that our community is safer, but we really question whether it lives up to that expectation," said Sondra Miller, president of the Cleveland Rape Crisis Center....

It's not surprising that defense attorneys oppose the registries, but therapists and victim's advocates also are among those calling for change.

"The biggest frustration we have with the registry is it feeds into the myths that the general public has about sexual assault," Miller said.  "It feeds this stranger-danger mentality when we know it's such a small fraction of the sexual assaults that occur in our community."  Miller said the registries give people a "false sense of security" that sex offenders can be easily identified and avoided, when that's not the case. 

Tyffani Dent, a clinical director at the Abraxas Counseling Center and a psychologist who works with both victims and offenders, said registries spread law enforcement too thin. Deputies have to check in not only on repeat, violent offenders but also teenagers who sent illicit text messages to their girlfriends, and who pose little threat to their neighbors.   "I want for victims to get justice," she said. "Unfortunately, registration the way it is now doesn't do what it's designed to do."

Several large-scale studies have shown that registries don't do much to prevent criminals from committing new crimes.

  • A 2008 U.S. Department of Justice study concluded that "Megan's Law showed no demonstrable effect in reducing sexual re-offenses."
  • A 2011 study from the University of Chicago found that "registered sex offenders have higher rates of recidivism" than those who did not have to register.
  • Another study published in 2011 found that a registration requirement has a deterrent effect on sexual offenders, but the notification aspect of the registries leads to higher rates of offense because of the social and financial costs to the offender. 
  • A 2004 Canadian study found that "after 15 years, 73 percent of sexual offenders had not been charged with, or convicted of, another sexual offense."

Dent doesn't think the registry system should be abandoned entirely.  Instead, she favors registering only the most dangerous offenders.  That would free up resources for preventative measures and treatment, such as mental health therapy, which Dent said has been proven to reduce recidivism.   In particular, Dent said cognitive behavioral therapies, which address the way people think and behave, have been proven to reduce recidivism among sex offenders.... 

Miller ... noted that victim's services and treatment programs are both underfunded, and could use some of the more than half a million dollars Cuyahoga County spends maintaining its registry.  "It really is a question of where do we put our resources where we're going to have the maximum impact and I'm not sure the sex offender registry is where we're getting the most impact," Miller said.

This companion story to the one quoted above carries the headline "Sex offender says registry amounts to punishment for life." Here is how it starts:

Nearly three decades ago, Emil Basista was convicted of raping a 33-year-old woman. While serving time in prison, he was retroactively labeled as a sexual predator, a designation that requires him to report where he lives every 90 days to the sheriff's department. Basista, 66, is one of several thousand Ohioans who have tried to challenge the state's sexual offender registration requirements, contending that the publicly accessible registries amount to life-long punishment.

October 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, September 30, 2015

Missouri Supreme Court considering constitutional challenge to lifetime sex offender registration for 14-year-old offender

As reported in this local article, headlined "Missouri’s juvenile sex offender registry challenged as unconstitutional," the top court in the Show Me state heard argument today on a notable constitutional question involve a juve sex offender.  Here are the details:

A 14-year-old Missouri boy’s vicious sexual assault on his adult sister landed him in the juvenile justice system. But should it land him on the Missouri sex offender registry for the rest of his life?

That’s the question the Missouri Supreme Court is being asked to answer by attorneys for the St. Louis boy, identified in court documents as S.C.. The court heard oral arguments on the case Wednesday morning and took the matter under advisement.

Attorneys for S.C. argue that subjecting a juvenile to the same registration requirement imposed on adult sex offenders is cruel and unusual punishment, and it contradicts the goal of the juvenile justice system to “rehabilitate and reintegrate.” They say several studies show that juvenile sex offenders are no more likely to commit sex offenses as adults than other juveniles.

“Lifetime sex offender registration has no relationship to the goal of protecting society from re-offenders and yet imposes severe hardship on juvenile offenders by impairing their ability to rehabilitate and function as productive members of society,” according to documents filed by S.C.’s lawyers.

The Missouri Attorney General’s Office argues that S.C.’s appeal should be dismissed. They say that Missouri is following federal law in requiring certain juveniles to register as offenders, and federal appeals courts have upheld the constitutionality of similar laws in other states.

“The risk posed by someone who, like S.C., has attempted to forcibly rape another, creates a sufficient basis...to mandate actions that will protect the public against the likelihood of similar future offenses,” the state says in its written answer to the appeal.

The American Civil Liberties Union of Missouri has filed a brief supporting the boy’s case. “When children are treated and punished as adults, we see constitutional difficulties,” said Gillian Wilcox, an ACLU staff attorney in Kansas City....

Under Missouri law, most juveniles placed on the registry are removed when they turn 21. But those, like S.C., who were 14 or older when they committed certain serious crimes, have to register as adults when they turn 21.

Statewide, more than 300 people are now on the registry for crimes committed while juveniles.... Once on the adult registry, placement is for life, and the law does not allow for a way to petition for removal....

In its arguments in support of S.C., the ACLU of Missouri cites research by social scientists that shows that requiring lifelong sex offender registration for juveniles can actually increase their chances of recidivism because offenders “find themselves isolated from important social, educational and family networks.”

“No opportunity exists for children or their counsel to present evidence demonstrating they should not be required to register publicly for the rest of their lives,” the ACLU argues.

Attorneys for the state, however, argue that appeals courts have found that sex offender registry laws are not criminal punishments, but are civil in nature and are designed with the “rational basis” of giving the public information about individuals who pose “a significant risk.”

September 30, 2015 in Assessing Miller and its aftermath, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8)

"The Costs and Benefits of Subjecting Juveniles to Sex-Offender Registration and Notification"

LogoThe title of this post is the title of this notable new research report released by the R Street Institute. Here is the report's executive summary:

Every state and territory in the United States has registration and notification laws that apply to adults convicted of, and juveniles adjudicated delinquent for, certain sex offenses.  Most jurisdictions enacted these laws on their own, but expanded them in response to the Adam Walsh Act of 2006 (AWA).

Registration laws require offenders to appear in person to provide identifying information (e.g., fingerprints, DNA samples) and, at least once a year, to provide an updated current photograph.  States vary with respect to the kinds of additional information they require, but the list is extensive.  An in-person update also is required for any covered change in life circumstances.  These include changes in residential, school, work or email addresses, screen names and even blog avatars.  

The time allowed to complete each update is short. Failure to register or update an existing registration is itself a felony.  Offenders may be covered by multiple states, each with its own rules and procedures.  Notification laws make some of this information publicly available via the Internet.

Registration is calculated to produce about $200 million in social benefits per year.  Social costs are calculated to range from $200 million to $2 billion, depending on the proportion of registrants listed due to offenses committed as juveniles.  Thus, net benefits are calculated to range from -$40 million to -$1 billion per year, with present-value net benefits that range from -$2 billion to -$20 billion.  This result depends on a small number of parameters.  First, based on the best available study in the literature, which applies to all sex offenders and not just juveniles, registration is assumed to have reduced sex-offense recidivism by about one-eighth.  This translates into an annual reduction of about 800 major sex offenses committed by juveniles.

Notification is estimated to produce no social benefits, with social costs per-year that range from $10 billion to $40 billion and present-value costs that range from -$100 billion to -$600 billion.  About three-fourths of these costs are borne by sex offenders’ neighbors. This occurs because living near a registered sex offender – whether an adult or juvenile – has a substantial “disamenity” value.  Costs imposed on juvenile offenders are calculated to range from $400 million to $2 billion per year.  Costs on their families are calculated to add another 50 percent to these amounts.  Additional costs on third parties are calculated as: $3 billion per year on employers for registry searches; $100-$500 million on employers for adaption and mitigation of employment issues; and $200 million to $1 billion on the public for registry searches.

Because notification cannot produce net benefits, the qualitative prospective benefit-cost analysis focuses on ways to reduce the social costs of notification.  A number of reform alternatives warrant consideration to reduce the substantial net social costs of notification. These alternatives involve exempting certain fractions of registrants listed due to offenses committed as juveniles.  High-quality risk assessment is necessary to minimize false positives.

September 30, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, September 23, 2015

Wisconsin appeals court declares unconstitutional criminalization of sex offenders photographing kids in public

As reported in this local article, a "Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday." Here is more about this notable ruling concerning a notable sex offender restriction:

The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.

Because of a 2002 child sexual assault conviction, Christopher J. Oatman was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos Oatman had taken the previous fall of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.

He was charged with 16 counts of intentionally photographing children without their parents' consent, and later pleaded no contest to eight so he could appeal on the constitutional issue. The judge sentenced Oatman last year to consecutive 18-month prison terms, the maximum, on each count.

In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places. Any law that aims to restrict speech based on its content must be narrowly drawn to protect a compelling state interest. The court found the law at issue failed both tests.

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. "Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said....

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime. "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the decision reads, quoting a U.S. Supreme Court case. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

The full ruling in Wisconsin v. Oatman is available at this link, and the nature of the final ruling meant that the appeals court had no reason to consider or comment on the specific sentence that had been imposed on the defendant under this law. That said, I cannot help but wonder if the judges considering the appeal were influenced by the remarkable fact that the defendant had been sentence to more than a decade in prision(!) for simply taking pictures (presumably from inside his own home) of children playing outside in public.

September 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

Wednesday, September 16, 2015

Federal child porn downloaders complaining to judges about Jared Fogle's (too sweet?) plea deal

This local article from Indiana, headlined "Convicted sex offenders object to Fogle's proposed plea deal," reports that at least a couple of incarcerated federal child pornography offenders have written to a federal judge to complain about how federal prosecutors used their discretion to resolve sex offense charges against former Subway pitchman Jared Fogle. Here are the basics:

Sex offenders in prison right now around the country are writing the judge here in Indiana handling the Jared Fogle case, upset over his possible plea deal.

In the letters — one from an inmate in Tucson, the other from an inmate in Florida — both talk about the time they are serving for distribution of child pornography.  One is serving a 40-year sentence, the other 16.5 years.

They are critical of Fogle's plea deal that could have him serve 5- to 12.5 years behind bars. They argue they are serving far more time for child pornography, and Fogle is also accused of having sex with underage girls.  Both asked for the judge to deny the plea deal.  Fogle's sentencing is set for November 19.

These two inmate letters make for fascinating reads and they can be accessed at this link. Among other stories, these letters provide an interesting perspective on how federal prosecutorial discretion can and does contribute to federal sentencing disparity and on how this disparity is perceived by those most impacted by it.  Notably, in a post last month I asked, Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?, and the question prompted a good comment dialogue.  Obviously, some federal child porn offenders think the answer to this question is obviously yes.

Prior related posts:

September 16, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Saturday, September 12, 2015

Federal judge finds unconstitutional Missouri's operation of its sex-offender civil commitment program

As reported in this local piece, headlined "U.S. judge rules handling of state's sexual predator program is unconstitutional," a federal judge issued late friday a significant ruling concerning Missouri's sex offender laws.  Here are the details:

In an awaited ruling from the federal bench, U.S. District Judge Audrey G. Fleissig ruled late Friday afternoon that Missouri’s sexually violent predator law is constitutional, but not how it’s applied.  The judge wrote that there is a “pervasive sense of hopelessness” at the Department of Mental Health’s Sex Offender Rehabilitation and Treatment Services, or SORTS program, because patients aren’t being properly released.

With help from the state attorney general’s office, SORTS is indefinitely committing about 200 people to treatment in the belief that they might reoffend.  The program has been praised and criticized since it began in 1999.  Before the trial started in April, nobody had completed treatment and been allowed to live outside of secure SORTS facilities in Fulton or Farmington.  They entered the program after completing prison sentences for sex crimes.

“The overwhelming evidence at trial — much of which came from Defendants’ own experts — did establish that the SORTS civil commitment program suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause,” Fleissig wrote in her ruling.

“The Constitution,” the judge added, “does not allow (Missouri officials) to impose lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.”  Those issues will be addressed soon in the remedy portion of the trial.  A hearing will be held Sept. 29.

“I can’t believe it, man,” said John Van Orden, 55, who lived in the Springfield, Mo., area before being committed to SORTS in 2005.  “It’s hard to describe after all that we have been through here.  Finally, we get some light at the end of the tunnel.”  The class-action lawsuit began in 2009.

Eric Selig, a lead attorney for the plaintiffs, said Friday: “We hope to work with the attorney general’s office and the Department of Mental Health to fix the program and start releasing the people who have successfully completed treatment, which is what the statute is all about.”...

Gov. Jay Nixon, a Democrat, has supported the program as a needed public safety tool.  He has said judges weigh annual reports to determine when patients deserve to be released. And the Legislature, now Republican-controlled, adds a layer of oversight, scrutinizing the program’s budget.  Plaintiffs’ attorneys attempted to punch holes in these positions and others during the eight-day federal bench trial that ended here April 30.

The judge agreed. In her ruling, she said the state of Missouri has not:

  • Performed annual reviews in accordance with the Sexually Violent Predator Act.
  • Properly implemented any program to ensure the least restrictive environment.
  • Implemented release procedures, including director authorization for releases, in the manner required by the law.

At the center of the case in Missouri — and other states struggling with similar laws — was the question of whether SORTS facilities genuinely rehabilitate sex offenders, or are merely an extra layer of punishment outside of the prison system.  In June, a federal judge in Minnesota ruled that indefinitely committing sex offenders is unconstitutional.

While the Missouri Attorney General’s Office argued at trial that progress is being made in treatment, plaintiffs’ attorneys harped on the fact that no patient had been released back into society.  They used the state’s own witness to point out a sense of hopelessness among staff and patients, who already have completed prison sentences before being detained indefinitely for treatment.

Plaintiffs’ attorneys sifted through hundreds of thousands of pages of the program’s documents, including a memo from the former chief of operations who wrote in 2009 that 16 patients could be moved to the St. Louis Psychiatric Rehabilitation Center, a less restrictive facility at 5300 Arsenal Street. In the memo, Alan Blake wrote that the top five of those 16 patients could be moved “today” and “easily” pass a test that shows they can live close to neighbors without harm.  “The rest may need greater support/treatment, but don’t represent a risk to the community in terms of compliance and appreciation of their situation,” Blake added.  “The setting would likely enhance their treatment and provide motivation.”  The memo went on to say that a few of the patients would even make good employees or peer counselors at the St. Louis rehab center.

Testimony in the federal case showed that those details — ones that seemed to show favorable patient progress — weren’t included in the annual reports to courts that make the ultimate decision about release.  With the addition of 20 SORTS patients a year and nobody being released, plaintiffs’ attorneys pressed the issue of reforming the program and developing a fast track to a nursing home for elderly and infirm patients. At least 17 patients have died in the program, including one who was well into his 80s.

The full 60-page trial court ruling in this matter can be accessed at this link.

September 12, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, September 08, 2015

"The Pointless Banishment of Sex Offenders"

The title of this post is the headline of this New York Times editorial in today's paper.  Here are excerpts:

It’s a chilling image: the sex predator skulking in the shadows of a swing set, waiting to snatch a vulnerable child.

Over the past two decades, that scenario has led to a wave of laws around the country restricting where people convicted of sex offenses may live — in many cases, no closer than 2,500 feet from schools, playgrounds, parks or other areas where children gather. In some places, these “predator-free zones” put an entire town or county off limits, sometimes for life, even for those whose offenses had nothing to do with children.

Protecting children from sexual abuse is, of course, a paramount concern.  But there is not a single piece of evidence that these laws actually do that.  For one thing, the vast majority of child sexual abuse is committed not by strangers but by acquaintances or relatives. And residency laws drive tens of thousands of people to the fringes of society, forcing them to live in motels, out of cars or under bridges.  The laws apply to many and sometimes all sex offenders, regardless of whether they were convicted for molesting a child or for public urination.

Lately, judges have been pushing back.  So far in 2015, state supreme courts in California, Massachusetts and New York have struck down residency laws....  The United States Supreme Court has not yet weighed in on residency restrictions, although a 2003 ruling upholding mandatory registration for sex offenders suggested that such laws may violate the Constitution.

It is understandable to want to do everything possible to protect children from being abused.  But not all people who have been convicted of sex offenses pose a risk to children, if they pose any risk at all . Blanket residency-restriction laws disregard that reality — and the merits of an individualized approach to risk assessment — in favor of a comforting mirage of safety.

September 8, 2015 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15)

Saturday, August 29, 2015

"Is It Ethical to Chemically Castrate a Child Sex Offender?"

The question in the title of this post is the headline of this RYOT piece discussing an alternative sentencing debate afoot in Australia.  Here is how the piece gets started (with links from the original):

When it comes to its convicted child sex offenders, Australia is considering nipping the problem in the bud, literally.  The country may soon require perpetrators to be chemically castrated instead of sent to prison, VICE News reports.

New South Wales’ justice minister, Troy Grant, would like the treatment to be made mandatory since the rate of recidivism for sex offenders is so high, according to the Australian Broadcasting Corporation.  About 17 percent are arrested for a similar crime within two years of being released from prison.  Currently, sex criminals can volunteer for treatment, but are not required to undergo it.

Child sexual abuse runs rampant in Australia.  Thirty percent of the population reports having fallen victim to it in their lifetime, 10 percent of whom say the abuse was “severe,” a report by the Australian Institute of Criminology found.

Anti-libidinal treatment is nothing new.  In fact, courts in Western Australia and Victoria can already mandate libido-reduction treatment to convicts who have been deemed dangerous by prison standards.

In the US, child sex offenders could potentially be sentenced to life in prison; many opt to undergo anti-libidinal treatment instead of extended prison stays, especially since even after sex-offending convicts are released, at least seven states mandate they remain in confinement.

Compared to other offenses, recidivism rates for sex criminals in America are not as high. Only about 5 percent are sent back to prison within three years for a similar crime. Yet states such as Iowa, Florida and California can require sex offenders to be administered libido-eliminating treatment.

Sex offenders may not be a particularly sympathetic group since they pose a serious threat to the most vulnerable members of society, children. Still, many feel chemical castration goes too far.  

Both Amnesty International and the American Civil Liberties Union in the US have condemned the practice, calling it inhumane.  “At first sight, forced chemical castration could be taken as a matter-of-course decision; however, it is incompatible with human rights, which are the foundation of any civilized democratic society,” read a statement by Amnesty International in March 2012.

In addition to the controversy around forcing people to take drugs they may not want in their bodies, the drugs used for chemical castration don’t come without their fair share of side effects, namely symptoms mimicking menopause in women.

August 29, 2015 in Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Technocorrections | Permalink | Comments (15)

Friday, August 28, 2015

Massachusetts SJC rules local sex offender restrictions preempted by state law

As reported in this Boston Globe article, "Massachusetts cities and towns cannot broadly restrict where sex offenders can live, the state’s highest court ruled Friday, declaring that measures in place in more than 40 municipalities were in conflict with state law."  Here is more on the ruling: 

The decision came as the Supreme Judicial Court upheld a lower court ruling on a Lynn ordinance that the judges said would have affected 95 percent of the city’s residential properties.  The court decried the measure, which it said conflicted with a 1999 state law that set up a system to keep track of sex offenders in communities.

“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst,” the ruling said.

Timothy Phelan, who sponsored the Lynn ordinance when was City Council president in 2011, called the decision discouraging and disappointing. SJC rules against sex offender zone laws in Mass.  “It seems like the rights of children are taking a back seat to what is politically correct,” Phelan said.

The ordinance placed strict limits on the ability of Level 2 and 3 sex offenders — those deemed by the state to have moderate and high risks of reoffending — from living within 1,000 feet of a park or school.

John Reinstein, the attorney who argued the case on behalf of three registered sex offenders, said the strong language in the ruling is “a shot across the bow to any attempt to provide the authority for broad-based restrictions to cities and towns.” Reinstein began work on the subject while he was legal director of the American Civil Liberties Union of Massachusetts and continued after his retirement in 2013.

He and his colleagues had urged the court to reject the law on constitutional grounds, arguing that it violated the fundamental rights of sex offenders to move freely within the state and choose where they live.

Friday’s decision instead followed a lower court ruling in deciding that the ordinance violated “home rule” provisions because it is a local measure in conflict with state law. The outcome leaves open the possibility that lawmakers could restore the ability of municipalities to create residency restrictions for sex offenders.

The full unanimous Massachusetts SJC ruling is available at this link.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Do tough sex offender restrictions really hurt women and children more than keeping them safe?

The question in the title of this post is prompted by this lengthy new Al-Jazeera America article headlined "Collateral damage: Harsh sex offender laws may put whole families at risk: Research says that registries and residency bans leave children of sex offenders vulnerable to bullying, homelessness." Here are excerpts:

In 1996, Congress passed Megan’s Law, which allowed states to publicize the names of those convicted of sex offenses. A wave of federal and state laws followed that created online sex offender registries, broadened who is listed and restricted where registrants can live.

But today there’s a growing body of research and court opinions questioning those laws’ effectiveness and constitutionality. No studies have looked at what proportion of the country’s nearly 850,000 people on state registries are providing for families of their own. Activists say, however, that thousands of female partners and children are being hurt by laws that aim to protect kids....

Vicki Henry, who runs Women Against the Registry, a group trying to roll back registration and residency laws nationwide, [with] volunteers operate a hotline for family members of registrants seeking help in dealing with the consequences of those laws. They field about 100 calls a month, Henry says.

The only quantitative study to date suggests how serious those consequences may be. In the American Journal of Criminal Justice in January 2009, researchers Jill Levenson and Richard Tewksbury reported on their survey of nearly 600 immediate family members of registrants. More than 20 percent said they had to move out of a rental because their landlord found their relative’s name on the registry, and 40 percent said they found it hard to find an affordable place to live.

Respondents said that their kids didn’t fare well either. Two-thirds reported that their children felt left out of activities because of their parent’s status, more than three-quarters said their children were depressed, and almost half reported that their children were harassed....

Two new qualitative studies provide more backing for the 2009 study findings. From 2010 to 2012, a team of researchers from four universities surveyed almost 450 registrants about the consequences for their families of their being on the list. Their report on the study ran in the October 2014 Justice Policy Journal. Another by two University of Delaware researchers involved surveys last year of 36 family members and interviews with 16 of them; it’s still under review for publication. Both studies asked open-ended questions, so the researchers couldn’t crunch any numbers. But key themes run through the responses — children being shunned and harassed, families struggling to find a place to live, wives losing friends and jobs because a husband is on the list....

Those families may be the collateral damage in a war on sex crimes that’s been underway since passage of Megan’s Law. But it’s far from clear that the chief weapons politicians have employed — registries and residency bans — are helping to protect children or the public.

None of the six studies on sex offender registries conducted between 1995 and 2011 found that registries lowered recidivism, according to a meta-analysis of 20 years of research in the November 2012 Journal of Crime and Justice. “Over the last 15 years, sex offender registries have been established in all empirical forums not to reduce sexual offending behavior, violence, or the number of victims,” Kristen Zgoba, coauthor of that study, wrote in an email.

There’s an even broader consensus on residency restrictions. A U.S. Department of Justice brief released last month concluded that “research has demonstrated that residence restrictions do not decrease and are not a deterrent for sexual recidivism.” And a December 2013 study report in the journal Criminal Justice Policy Review noted that Florida’s residency laws likely play a “significant role” in homelessness and transience among sex offenders.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, August 20, 2015

Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?

The question in the title of this post is one that I first had when I initially heard of the basics facts and basic plea deal terms (reported here) surrounding the child sex crimes committed by former Subway pitchman Jared Fogle.  In addition, a number of blog commenters have in prior posts comments likewise wondered about the sentencing range Fogle would appear to be facing under the terms of the plea deal.  Along those lines, here are now some recent media coverage on this plea deal front:

As federal practitioners know, whatever plea deal that has been put together in this case by the parties could ultimately be rejected by the district judge. Such a plea deal rejection, in a typical federal criminal case, is quite rare. But the media attention already generated by this case makes it anything but typical, and that media attention might also end up influencing the judge who has to approve the deal before it becomes official.

Helpfully, this official press release from the U.S. Attorney’s Office for the Southern District of Indiana provides a bit more detail about what seem to be the sentencing elements of the proposed plea deal: 

According to Senior Litigation Counsel Steven D. DeBrota, who is prosecuting the case for the government, under the terms of the plea agreement, Fogle faces a mandatory minimum sentence of at least 5 years of imprisonment, a fine of up to $500,000, and supervised release after serving his prison sentence for at least 5 years and up to the remainder of his life. There is no agreed sentence in the case and the government may request of up to 151 months of imprisonment. However, Fogle may not request a sentence below 5 years of imprisonment.

The Plea Agreement also requires Fogle to pay a total of $1,400,000 in restitution to the 14 victims in the case, 8 of whom are still minors, and forfeit assets of $50,000. This is the largest amount of restitution ever ordered for a child pornography or sex trafficking case in the history of the Southern District of Indiana. The victims will be able to use these funds to pay for counseling and treatment to combat the debilitating life effects of these crimes.

Reading between the lines, it seems that the plea deal as described here may only limit the severity of the sentencing that prosecutors recommend, it may not formally limit what sentence the judge could acually impose. If this is accurate, then I would predict that the district judge would be inclined to accept even a seemingly "sweetheart" deal for Fogle safe in the knowledge that he could ultimately impose a sentence longer than the 12.5 years of imprisonment likely to be recommended by prosecutors when sentencing finally rolls around.

Prior related posts:

August 20, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Wednesday, August 19, 2015

Even with plea deal, Subway pitchman Jared likely facing at least a decade in federal prison for sex offenses

This Reuters article, headlined "Former Subway pitchman seeks to plead guilty to child pornography, sex charges," provides a lot more factual details concerning the multiple federal sex offenders committed by a renown TV figure.  Here are the ugly factual and legal specifics surrounding Jared Fogle:

Former Subway sandwich chain pitchman Jared Fogle asked a federal judge on Wednesday to accept his plea of guilty to charges of child pornography and traveling for illicit paid sex with minors.  Federal Judge Mark Dinsmore must now review the plea deal Fogle's attorneys reached with prosecutors and decide whether to accept it. In the meantime the court entered a technical plea of not guilty on Fogle's behalf.

Fogle, who became famous after losing a lot of weight on a diet that included Subway sandwiches, was placed on home detention and must wear an electronic monitoring device. No date has been set for his next appearance.

Under the deal, Fogle would serve between five and 12 years in prison, pay $1.4 million in restitution to 14 minor victims, register as a sex offender and meet other conditions....

According to the charges, Rusell Taylor, head of the Jared Foundation set up to combat child obesity, secretly taped 12 minors while they changed clothes and showered at his home, including two who were as young as 13 or 14. He shared the images with Fogle, who knew they showed minors, prosecutors said.

Prosecutors said Fogle also received commercial child pornography from Taylor, viewed it and failed to report it. He stored explicit images of children as young as six, prosecutors said.

Fogle traveled to New York City at least twice between 2010 and 2013 seeking sex with minors, and paid for sex acts with a girl he knew to be 17 years old and another girl younger than 18. He told the first girl he would "make it worth her while" if she could find him another minor to have sex with, "the younger the girl, the better," according to the indictment. Prosecutors said he repeatedly asked prostitutes and others to find him 14- and 15-year-olds for sex.

Police and prosecutors said in a news conference on Wednesday that the investigation of Taylor and Fogle started after a tip from a private citizen....

Immediately after the hearing Fogle's wife, Katie, said in a statement that she would seek an end to the marriage. "Obviously, I am extremely shocked and disappointed by the recent developments involving Jared. I am in the process of seeking a dissolution of the marriage," she said in the statement released by her lawyer.

Fogle's attorney Jeremy Margolis told reporters in a statement on the courthouse steps: "He expects to go to prison, he will do his time... He will continue to make amends to people whose lives he has affected, and at some point hopes to become again a productive member of society."

Authorities searched Fogle's home in the Zionsville suburb northwest of Indianapolis in July, two months after Taylor was arrested on federal child pornography charges. Assistant U.S. Attorney Steven DeBrota said at a news conference that Fogle continued to seek paid sex with minors even after Taylor's arrest, but was not successful.

I would need to see the text of any plea agreement in order to come up with any firm prediction as to Fogle's likely guideline sentencing range or as to what ultimate sentence he will receive. Nevertheless, the fact that Fogle's crimes included not only child porn offenses, but also repeated solicitation of under-age girls (even after he was under investigation) leads me to predict a double-digit prison sentence is already pretty likely.

Prior related post:

August 19, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (8)

Tuesday, August 18, 2015

What sort of child porn federal plea deal might be in works for Subway pitchman Jared Fogle?

The question in the title of this post is prompted by this (celebrity?) federal criminal justice news emerging from Indiana late today: "Jared Fogle, the former Subway spokesman, is expected to plead guilty to possession of child pornography charges."  Here are the details:

Sources say Fogle will accept a plea deal Wednesday. The U.S. Attorney’s Office will hold a press conference tomorrow afternoon to discuss the deal and charges against Fogle. Fogle’s attorney, Ron Elberger, had no comment in regards to the plea deal. He said any information regarding the charges would come from the attorney’s office. Elberger did say Fogle’s suspension with Subway continues....

The charges come after federal agents raided Fogle’s Zionsville home in early July. FBI sources confirmed to FOX59 state and federal investigators were serving warrants at his home in connection with a child pornography investigation. Several computers and DVDs were seized from Fogle’s home.

Earlier this year, Russell Taylor, the former director of the Jared Foundation started by Fogle, was arrested in a child pornography case. He was accused of possessing and producing child pornography. Investigators said a search of Taylor’s home turned up more than 500 videos with images of child pornography. In May, Taylor unsuccessfully tried to kill himself while in jail.

Fogle gained national fame after attributing massive weight loss to eating Subway sandwiches. He was a freshman at Indiana University at the time. He later became a visible presence in Subway ad campaigns, pitching the restaurant’s sandwiches and touting their health benefits.

Subway suspended their relationship with the spokesman shortly after the raid.

Prior related post:

August 18, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (3)

Sunday, August 16, 2015

"Sex Offenders Locked Up on a Hunch"

The title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:

The essence of the American criminal justice system is reactive, not predictive: You are punished for the crime you committed.  You can’t be punished simply because you might commit one someday.  You certainly can’t be held indefinitely to prevent that possibility.

And yet that is exactly what is happening to about 5,000 people convicted of sex crimes around the country.  This population, which nearly doubled in the last decade, has completed prison sentences but remains held in what is deceptively called civil commitment — the practice of keeping someone locked up in an institution for months, years or even decades for the purpose of preventing possible future offenses.

The authorities have the power to detain people with mental illnesses or disorders who cannot function independently, or who pose a danger to themselves or others.  But since the early 1990s, this power has been used increasingly to imprison one distinct group: sex offenders....

In a decision in June, a federal judge ruled that Minnesota’s civil-commitment law for sex offenders violates the Constitution.  Federal District Judge Donovan Frank said the law imposes “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”  For example, local prosecutors — not clinicians or mental health professionals — choose whether to seek continued detention based on a screening test that claims to predict a person’s likelihood of committing another sex offense, though there is no clear evidence such tests are accurate.

Yet based largely on those screening tests, more than 700 Minnesotans who have completed their prison sentences are locked up, at an annual cost of more than $120,000 per person — triple the cost of prison.  This civil commitment rate is by far the highest in the country. Some people have been held for more than 20 years.  During that time, not one person has been released from the program unconditionally.

A central flaw, Judge Frank said, is that Minnesota does not perform reassessments of risk, so the burden lies with the detainees to prove they no longer pose a danger.  On Aug. 12, Judge Frank ordered the state to come up with constitutionally valid reforms by the end of September, or he “may demand a more forceful solution.”

Despite the public perception that all sex offenders are recidivists — a belief that drove these laws in the first place — sexual re­offense rates are in fact lower than those for other crimes (though an unknown number of sex crimes go unreported).  In addition, while some states’ laws make it easier for detainees to earn their way out, 30 states have no civil­-commitment laws at all, and there is no evidence that a state’s sexual­-violence rate is affected by whether it has such a law....

Public safety would be better served if resources were directed toward community supervision and other services for those leaving prison, rather than toward skirting the edges of the Constitution to keep them locked away.

August 16, 2015 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12)

Thursday, August 06, 2015

Teen placed on sex offender registries after encounter with girl claiming to be 17 to be resentenced

According to this new CNN piece, there seems to be a notable new legal development in a notable case of a teen facing extreme sex offender restrictions after a seemingly not-so-extreme sex offense.  The piece is headlined "Judge reconsidering case of teen on sex offender registry," and here are the details:

A 19-year-old Indiana man convicted of a sex offense after a teenaged girl lied about her age on a hookup app may get a new sentence. The judge in the case, Dennis Wiley, did not make a decision Wednesday, but he agreed to consider Zach Anderson's request to be resentenced, meaning that Anderson could potentially be taken off the sex offender registry.

Anderson met the girl on the dating app "Hot Or Not." The 14-year-old girl lied about her age, claiming she was 17, which made having sex with her a crime.  She lived in southern Michigan, close to Anderson's parents' home in Elkhart, Indiana.  Anderson was given a 90-day jail sentence, five years probation and placed on both Indiana's and Michigan's sex offender registry for the next 25 years -- the same registry as child rapists, pedophiles and predators.

Anderson and his lawyer, Scott Grabel, had asked a court in Niles, Michigan, to vacate Anderson's sentence, alleging that prosecutors broke the plea agreement, the defense attorney said.  Grabel, who accuses the prosecution of not staying neutral during the sentencing of Anderson as required under the agreement, described the judge's decision Wednesday as a "significant step."  Wiley is expected to make a further ruling in about a week.

"In the long run, I'm confident we're gonna get this thing fixed," the attorney told CNN. Both the girl's mother and the girl herself had earlier appeared in court, to say they didn't believe Anderson belonged on the sex offender registry....

"Our goal is to get this case resentenced in front of a different judge, because the law mandates if the prosecutor violates their plea agreement, then it should be sent to a different judge for possible resentencing, or if we want to withdraw the plea and go to retrial that may be an option, as well," Grabel told CNN before the court action Wednesday.

Anderson's attorney is also striving to get the entire case dismissed. "I don't certainly speak for the public in general, but the comments I've read nationally think that his whole life shouldn't be ruined by his decision to go on a date and obviously have sexual relations with that person, especially when that person in all honesty misrepresented their true age," Grabel said.

As a registered sex offender, Anderson can't access the Internet, go to a mall or linger near a school or playground. His parents say because he has a 15-year-old brother, he can't even live at home any longer....

Anderson's case has stirred much debate about the one-size-fits-all sex offender laws that treat all offenders the same whether they are serial child predators or teens who've had sex with a girlfriend. His family has started a Facebook page, called "Justice 4 Zach," and has been very vocal about what they call the injustice of the sex offender registry. "He's obviously not a sex offender," Anderson's father told CNN, "I mean when there's a consensual act, to have one person labeled as the offender and the other person as a victim ... It's hard to swallow."

A former judge in a nearby town said the sex offender registry has to be changed. "If we caught every teenager that violated our current law," said former Judge William Buhl, "we'd lock up 30 or 40% of the high school. We're kidding ourselves."

According to The National Center for Missing & Exploited Children, there are 850,000 people on the sex offender list and about a quarter of them were juveniles when they were sentenced, but the records are not broken down by the severity of the crimes they committed.

Some recent related posts:

August 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8)

Friday, July 31, 2015

ABA Journal spotlights continued child porn federal sentencing challenges

This article in the August 2015 issue of the ABA Journal, headlined "Minors Sentence: Courts are giving reduced terms to many child-porn defendants," provides an review of the enduring difficulties federal courts face when sentencing certain offenders convicted of using new technologies to download illegal dirty pictures.  Here is an excerpt:

Courts’ reaction to child pornography sentencing is part of a pushback against sentencing guidelines after U.S. v. Booker and U.S. v. Kimbrough, two Supreme Court opinions filed in 2005 and 2007 that found the federal sentencing guidelines advisory, not mandatory. As a result, courts have undercut child pornography sentencing guidelines when the images are taken from P2P programs.

According to one study cited in a 2012 U.S. Sentencing Commission report, 85.3 percent of child pornography distribution convictions in the first quarter of fiscal year 2012 involved P2P programs. Of offenders who used the programs, 55.6 percent distributed images solely with an open P2P program.

The study also found that the rate of known sexual recidivism for nonproduction offenders was 7.4 percent. The agency suggested that Congress revise the nonproduction child pornography sentencing scheme, because crimes stemming from downloads involve less culpability.

If prosecutors think that a child pornography defendant’s mental health contributed to the crime, and that the individual is sincere about rehabilitation and is not a child predator, they will agree to diminished incarceration plea agreements, says Raymond Cassar, a Farmington Hills, Michigan, defense lawyer....

One such case involved Nicholas Dubin, who has Asperger’s syndrome. According to a government sentencing memo, the FBI logged on to a P2P network in 2010 and identified 12 files on Dubin’s computer. More than half contained child pornography. The government obtained a search warrant for his home and found “several hundred to 1,000 images” of child pornography on his computer....

At the time of his arrest Dubin was the dean of students at a high school. In 2013, he pleaded guilty to one count of child pornography possession, and his sentencing range under the guidelines was between 97 and 120 months. The government, however, agreed to sentence Dubin to one day in federal custody, with credit for time served, and five years of supervised release. A 2013 sentencing memo submitted by the Eastern District of Michigan’s U.S. attorney’s office notes that people with autism spectrum disorders often have limited intimate relationships. The document also asserts that Dubin, who had no prior criminal record, was remorseful about his actions and had focused his therapy to understand why his crime was harmful.

“A sentence of one day time served does not, in any way, adequately reflect the seriousness associated with the possession of child pornography,” the government wrote. “However, in this exceptional case, a noncustodial sentence will effectively promote respect for the law and provide just punishment.”

To some, child pornography offenders may not seem as dangerous anymore, because their profile has changed, says Melissa Hamilton.  A visiting criminal law scholar at the University of Houston Law Center, her research focuses on violence, sex crimes and sentencing. “Going to a physical location and buying child pornography off the shelf or sending away money to get it by mail,” she says, involves more culpability than searching for it online.  The sentencing guidelines, she adds, were written before the uptick in prosecutions involving child pornography from P2P programs, and it’s unlikely that they’ll change in the near future.

“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says. “I have noticed some instances where very senior judges, who are reflecting [on the defendants they sentence] sometimes write long opinions saying that the child pornography downloaders don’t look as scary and risky, in terms of other violent offenders before them.”

July 31, 2015 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (8)

Wednesday, July 29, 2015

"Should Therapists Have to Report Patients Who Viewed Child Pornography?"

The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California.  The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:

Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities.  The requirement applies to adults who admit to having viewed explicit images of children.  And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.

Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”

Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”

Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation.  “If we don't know about it,” he said, “we can't prosecute it."  The effect would ostensibly be fewer victims of an abhorrent industry.

But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.

July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)

Tuesday, July 21, 2015

Intriguing federal civil rights case assailing New York sex offender family restrictions

A helpful reader altered me to this fascinating story, headlined "Bronx Dad's Case Tests Restrictions on Sex Offenders," concerning a fascinating federal court case being litigating in New York. Here are the basic details via the press account (with links):

With a name resembling a kindergartner's alphabet primer, the lawsuit ABC v. DEF takes on far more insidious themes -- namely the parental rights of a Bronx man who spent eight years in prison for raping his ex's teenage niece.     

A federal judge issued an order in the case last week that could earn that man unspecified financial compensation from New York state.  Three law professors interviewed by Courthouse News say they have never heard a sex offender case quite like it.

Though the case was unsealed last year, a pseudonym still shields the name of the 50-year-old plaintiff.  The docket meanwhile evinces a powerful support network for his cause, including dozens of family members and friends who wrote to the court on his behalf.  Doe's attorney, Debevoise & Plimpton partner Michael Mukasey, is a former U.S. attorney general.

It's been 10 years since a jury found that Doe committed second-degree rape and other offenses against his ex-wife's niece, who accused him of assaulting her when she lived with the family between the ages of 13 and 14.  The jury acquitted Doe of the first-degree charges, and he is appealing the counts for which he was convicted, maintaining that he is innocent.

While still behind bars, Doe and his wife divorced, and he remarried another woman he had known for 25 years.  They had a child, "M.S.," shortly before Doe successfully completed his sex-offender and substance-abuse rehabilitation programs in the fall of 2012.  Since Doe requires permission to contact anyone under the age of 18, parole officers ordered him away from his new home -- and into a homeless shelter -- when his son turned 1 month old.

A Bronx Family Court already allowed the father of six to have unsupervised visits with his teenage daughter, and social workers saw no danger with his raising a newborn son.

Doe's accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life. "Why should he live happy and comfortable when he took something from [me] that [I] can't get back?" she asked them, according to court papers.

After this conversation, a Manhattan bureau chief of New York State's parole division ordered Doe away from his new family in a one-paragraph directive stating that the "victim's perspective is always important." Bureau Chief Joseph Lima officer noted in his decision that Doe's crimes "occurred within the family constellation and in some instances while other family members were present in the residence."

Doe's attorney Mukasey noted in a legal brief that all four of their client's adult children wrote letters to the court on behalf of their father. "He has a close relationship with his five oldest children, who range in age from 14 to 27," the brief states. "Mr. Doe has never been accused of neglecting or abusing any of these children; to the contrary, they speak fondly of their relationship with him and his importance in their lives. Mr. Doe desperately wants to establish an equally loving bond with his one-year-old son, plaintiff M.S."...

Neither Mukasey nor his co-counsel would respond to press inquiries. Their amended complaint sought a court order reuniting the family, plus unspecified monetary damages for deprivation of Doe's rights to due process and intimate association. U.S. District Judge Paul Engelmeyer pushed the case forward to discovery Wednesday, in a 36-page opinion and order.

Since parole officers can impose "several dozens" of conditions on the lives of registered sex offenders, Engelmeyer said their expansive powers must face a check. "In addition to the power to decide whether Doe may have contact with any person under age 18, a parole officer has the authority to grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess 'any children's products' or photos of minors; rent a post office box; obtain a driver's license; 'rent, operate or be a passenger in any vehicle'; travel outside of New York City; visit an arcade, bowling alley, beach, or swimming pool; or have visitors at his approved residence," the opinion notes.

Refusing to grant immunity, Engelmeyer wrote "there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court action, over so many aspects of a parolee's life." His ruling allows Doe's claims against six DOCCS officials to advance to discovery. In a phone interview, Georgetown University Law professor Abbe Smith called the decision a "terrific development."

"If you commit a crime, and you're punished, you should be allowed to serve your debt to society and then move on," said Smith, who co-directs the university's Criminal Defense and Prisoner Advocacy Clinic. "[The Bronx father] has a newborn son. I can't imagine on what basis he could be deprived from having contact from his own child."  Smith added that she never heard of a case like this before because, "typically, parole officers have immunity," and the ruling emphasizes that they cannot have "limitless discretion."

David Rudovsky, a Penn Law School professor and founding partner of the Philadelphia-based firm Kairys, Rudovsky, Messing & Feinberg, LLP, called the case "significant" because it expands upon a Second Circuit case striking down restrictive probation terms involving relationships with close family members.  Unlike that case, however, the ruling in Doe's lawsuit "extended that doctrine to a damages claim against a parole officer," Rudovsky said in an email....

Florida State University professor Wayne Logan, an expert on sex-offender registries, said he had not heard of such a case either....  Smith, the Georgetown professor, said that she felt sympathy for the Doe's victim, but she said that criminal justice must "root for people to rebuild their lives."

"Marriage and making a family, becoming gainfully employed, those are all signs that a person has abandoned their lawless ways," she said.

July 21, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, July 07, 2015

Subway pitchman and his "Jared Foundation" subject to serious child porn investigation

At the risk of encouraging some poor-taste puns (such as that one), I could not resist reporting here on this remarkable unfolding story of an on-going FBI investigation in Indiana which, if I had to guess, could well result in a very high-profile federal child pornography sentencing.  This latest press report is headlined "Attorney for Jared Fogle says Subway pitchman is cooperating in probe," and here are some of the unsavory details:

An attorney for Jared Fogle says the Subway pitchman has not been arrested on any crime and is cooperating with investigators as they look into items authorities took out of his Zionsville home. "Jared has been cooperating, and continues to cooperate, with law enforcement in their investigation of unspecified charges and looks forward to its conclusion," attorney Ron Elberger said in an email. "He has not been detained, arrested or charged with any crime or offense."

Fogle was driven away from his Zionsville home by an attorney in a black Lexus Tuesday afternoon amid an hours-long police investigation conducted by federal and state officials. The Subway chain said it believes the investigation is related to the prior arrest of a former Jared Foundation executive on child pornography charges.

Investigators from the FBI, Indiana State Police and Postal Service arrived at Fogle's large, brick home in the 4500 block of Woods Edge Drive early Tuesday and parked an evidence truck in the driveway.  In the early hours of the probe, Fogle was seen leaving the truck, and investigators carried electronics and other items out of Fogle's home.

It could not be confirmed why police were at the residence, but the raid comes just two months after 43-year-old Russell Taylor, the executive director of The Jared Foundation, was arrested in Indianapolis on federal child pornography charges.  A detective's affidavit filed in May to obtain search warrants for Taylor's residence details allegations against the former head of Fogle's foundation, including claims he produced and possessed child pornography involving children — both boys and girls — as young as 9 years old.

One item police recovered from Taylor's home office, according to court records, did appear to have a link to Fogle or his foundation. The officers who searched Taylor's home reported recovering a thumb drive that contained multiple videos of child pornography, including what police described as "commercially made child pornography from Eastern Europe similar to that seized on other investigations," court records said. The detective leading the probe noted an examination of that thumb drive "revealed a document file with Taylor's employer listed in the file name." It is unclear, however, if that referred to Fogle or the foundation. It also is unclear from the court document if that specific file contained pornographic images. Federal officials wouldn't comment on either case today....

FBI spokeswoman Wendy Osborne this morning confirmed that the agency was conducting a criminal investigation in Zionsville, but she would not comment on the nature of the probe. She referred questions to officials from the U.S. attorney's office, who declined to comment, citing a Department of Justice policy that prohibits them from confirming or denying the existence of an investigation.

Fogle rose to fame in television commercials for the Subway sandwich chain after losing 235 pounds by eating Subway sandwiches and exercising. Fogle was a 425-pound freshman at Indiana University when he embarked on the unusual diet of turkey and veggie subs in 1998. Fogle founded the Jared Foundation to encourage children to develop habits of healthy eating and exercise.

Two days after he was formally charged, Taylor attempted suicide on May 6 at the Marion County Jail and was placed on life support. Tim Horty, a spokesman for the U.S. attorney's office, said Tuesday that Taylor's health is improving and he is in the custody of the U.S. Marshals Service. He faces seven counts of production of child pornography and one count of possession of child pornography.

Court documents said officers initially searched Taylor's home in the 1300 block of Salem Creek Boulevard on April 29 looking for "evidence of bestiality, including images or videos," but found several digital media cards and thumb drives that included "multiple video files of nude or partially nude minor children." Over 400 videos of child pornography were found on computers and storage media.

It added many of those images appeared to have been made in bedrooms and bathrooms at Taylor's former and current homes. "Many of these videos showed the exposed genitals or pubic area of the children" – both boys and girls – and that the "minors did not appear to be aware that they were being filmed," according to the court record. The court documents also said Taylor had an interest in bestiality and shared images with an unnamed person involving a "dog licking the nude genital area of an adult female." Taylor has not been charged with any crimes related to that video or alleged bestiality.

After Taylor's arrest, Fogle issued a statement that said he was "shocked" over the allegations and that the foundation was "severing all ties" with Taylor.

July 7, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (3)

"Sex Offender Registries And Calls For Reform"

The title of this post is the title of this recent extended segment on NPR's Diane Rehm Show. Here is how the program is previewed and the guests on the program:

Sex offender registries are designed to protect the public from pedophiles and others who have committed sexual crimes. But some say those guilty of much lesser offenses don’t belong on the list. We look at sex offender registries and calls for reform.

Guests

  • Abbe Smith, professor of law and co-director of the Criminal Justice Clinic and E. Barrett Prettyman Fellowship program at Georgetown University; author of "Case of a Lifetime."

  • Jill Levenson, associate professor, social work, Barry University and clinical social worker

  • Brenda V. Jones, executive director, Reform Sex Offender Laws, Inc.

  • Victor Vieth, founder and senior director, Gundersen National Child Protection Training Center

July 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, July 06, 2015

ACLU argues Indiana's new religious freedom law protects sex offenders seeking church access

ReligiousLibertyAs reported in this interesting local article, headlined "ACLU: RFRA must let sex offenders worship at churches with schools," a new lawsuit in Indiana is creating a new stir surrounding the state's controversial new state religious liberty law. Here are the details:

The American Civil Liberties Union of Indiana filed Wednesday what appears to be the first lawsuit that invokes the state's new new Religious Freedom Restoration Act. Their clients? Registered sex offenders who believe their religious freedom is being denied by another new law that bans them from attending any church located on the same property as a school.

"This is a prime example as a place where people's religious rights are being burdened, and therefore under RFRA the state has to justify that," said ACLU of Indiana legal director Ken Falk. "It makes no sense to ban people on a Sunday if there are kids there on a Thursday." For example, that would be the case with church preschools or parochial schools with adjacent churches....

The lawsuit was filed in Elkhart Superior Court, on behalf of two unnamed sex offenders, against the prosecutors and sheriffs of Allen and Elkhart counties. When reached by The Indianapolis Star, the sheriff's departments declined to comment.

Indiana's new religious freedom law, which went into effect Wednesday, says if the government imposes an undue burden on the religious rights of individuals, businesses or religious organizations, it must prove a compelling interest and that it is using the least restrictive means possible.

"I think this is exactly the kind of case RFRA was about," said Indiana University law professor David Orentlicher. "You've got this sex offender law that's designed to protect children. It wasn't passed with the intent to interfere with religious practice, but it turns out there are a fair number of schools on church grounds. These people now can't go to pray without running afoul of the law."

Some in Indiana — including the ACLU — opposed the state RFRA, arguing that the law would allow discrimination against lesbians, gays, bisexuals and transgender individuals. That led to a "fix" to the law to clarify that an RFRA defense could not be used to trump local and state civil rights laws.

But with the heated debate over how RFRA would apply in wedding services for same-sex couples, "what got lost was there are a lot of good reasons for these statutes," Orentlicher said. "That's what this case should remind us — that RFRAs can be misused, but we don't want to throw the baby out with the bathwater," he added.

Falk of the ACLU said the lawsuit uses RFRA "as it was originally contemplated" to protect religious freedoms. "We're not going to pretend it doesn't exist now," Falk said. "It does exist. The legislature said it wants to protect religious liberties, and that's exactly what we're trying to do."

Still, state Senate President Pro Tempore David Long, a Fort Wayne Republican, criticized the ACLU for the lawsuit. "The ACLU used to be a staunch supporter of religious liberty," he said in a statement. "Now they've reduced themselves to making a mockery of it. On top of this, they also support endangering our children while championing the rights of sex offenders. It's a sad day for the ACLU."

State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds and reacted to the ACLU lawsuit by slamming the religious freedom law: "Clearly nobody had thought through what all the negative ramifications might be for people."

"I think that we have to keep in mind that Indiana is one of the very worst states in the nation when it comes to protecting our children from sexual violence," she added, citing national health statistics and recidivism rates. "We're second only to Wyoming. And we have to do whatever it takes to protect our kids. ... Any time we can keep a sexual predator away from a child, that's a small victory."

But Orentlicher made the point that the case may not be so simple. For sex offenders who have served their time, religion may be instrumental to their rehabilitation, he said: "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."...

In addition, the ACLU argues for sex offenders to have access to the worship services when schools aren't in session. And the lawsuit says it's "not rational" that serious sex offenders can still go to church services where children are present if there's no school attached. Orentlicher said other states, such as Missouri, have carved out religious exemptions to allow sex offenders to attend church when school is not in session. "They're just saying, 'Let us pray when the kids aren't there,' " Orentlicher said.

July 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Religion, Sex Offender Sentencing | Permalink | Comments (5)

Florida prosecutors (for suspect reasons?) seeking 2.5 years in prison for sex-on-beach guy

As previously discussed in prior posts linked below (starting with this one), a couple engaged in some consentual, but seemingly inappropriate, behavior on a public beach lead to a state criminal conviction and a seemingly extreme potentially mandatory imprisonment term for the fellow involved who had a criminal record.  This local article, headlined "Man convicted of sex on the beach in Bradenton Beach learns his punishment Monday," reports on where matters stand today on the morning of the (gentle?)man's scheduled sentencing:

The notorious Bradenton Beach sex-on-the-beach case is back in court Monday.

In a case that drew national and international attention, Jose Caballero, the man caught video having sex with a woman on Cortez Beach last July, will learn his punishment, after a jury found him and Elissa Alvarez guilty of two counts of two counts each of lewd and lascivious behavior. Prosecutors said soon after the verdicts were announced that they would not seek the maximum possible punishment: 15 years.

Alvarez, who didn't have a prior criminal record, in May was sentenced to time served since her arrest July 20, and required to register as a sex offender.

Prosecutors said last month they will recommend that Caballero, who previously served 8 years in prison for cocaine trafficking, be sentenced to 2 1/2 years in prison. He is currently in the Manatee County jail awaiting sentencing.

The tougher punishment, they said, is warranted because of Caballero's behavior before he was arrested on the beach. "We had a real good tone of what to give Ms. Alvarez after the case was over in terms of the testimony that came out, which created a vast difference in the demeanor that Mr. Caballero reacted to the fellow beachgoers versus the demeanor of Ms. Alvarez and how she reacted," said Assistant State Attorney Anthony DaFonseca, after Alvarez was sentenced.

Though I can understand, somewhat, why Caballero's criminal history might prompt prosecutors to seek a somewhat tougher sentence than his co-defendant received, I do not quite understand how the female defendant's "good tone" and distinct reaction justifies such an extreme different in recommended sentences. Ultimately, because I know very little about Florida sentencing law, I am unable to say with certainty that there is something problematic about the Florida prosecutors' recommended sentence here. But I do know 30 months is prison would be a pretty steep price to pay for some sandy sex.

July 6, 2015 in Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Sunday, July 05, 2015

New York Times reviews juve problems with modern sex-offender laws

The front-page of today's New York Times has this lengthy article, headlined "Teenager’s Jailing Brings a Call to Fix Sex Offender Registries." Here are excerpts:

Until one day in December, Zachery Anderson was a typical 19­-year-­old in a small Midwestern city.... And he dated in the way that so many American teenagers do today: digitally and semi­anonymously, through apps where prospects emerge with the swipe of a finger and meetings are arranged after the exchanges of photos and texts.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line.  They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14....  He was [later] arrested and charged and, after pleading guilty to fourth­-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.

As an Indiana resident, Mr. Anderson will most likely be listed on a sex offender registry for life, a sanction that requires him to be in regular contact with the authorities, to allow searches of his home every 90 days and to live far from schools, parks and other public places. His probation will also require him to stay off the Internet, though he needs it to study computer science.

Some advocates and legal authorities are holding up Mr. Anderson’s case as the latest example of the overreach of sex offender registries, which gained favor in the 1990s as a tool for monitoring pedophiles and other people who committed sexual crimes.  In the decades since, the registries have grown in number and scope; the nearly 800,000 people on registries in the United States go beyond adults who have sexually assaulted other adults or minors.  Also listed are people found guilty of lesser offenses that run the gamut from urinating publicly to swapping lewd texts.

As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries. “The whole registry is a horrible mistake,” said William Buhl, a former judge in Michigan who has publicly argued that laws governing registries ought to be relaxed. “I think it’s utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile.”...

There are fledgling efforts in some states to change sex offender registries so that they do not include juveniles or those guilty of minor offenses.  In California, the corrections department announced in March that the state would ease residency requirements for many sex offenders, allowing certain low­risk individuals to live in areas closer to schools and parks that were previously off limits.  Many sex offenders have ended up broke and homeless, living in clusters under freeways because they are routinely rejected by employers and landlords, and because they are banned from living in so many neighborhoods that contain public places like parks.

Brenda V. Jones, the executive director of Reform Sex Offender Laws, an advocacy group, said cases like Mr. Anderson’s are common in many states. Frequently, a judge will give the lightest possible sentence, but cannot change the restrictions involving the offender registry. “It’s like a conviction on steroids,” Ms. Jones said. “Being on a registry becomes a liability for employers, no matter how minor the offense was. Other people will say: ‘I saw your employee on the Internet. He’s a sex offender, and I will not come to your establishment.’ ”

Changing the laws has been a slow fight. “People talk about it, but when you actually try to introduce legislation, lawmakers start to get really nervous,” Ms. Jones said. “Because, oh, my God, we’re going to be soft on sex offenders.”

Prior related post:

July 5, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Monday, June 29, 2015

"A Place to Call Home: Courts are reconsidering residency restrictions for sex offender"

The title of this post is the headline of this notable article from the July 2015 issue of the ABA Journal.  Here are excerpts:

[T]he California Supreme Court struck down the blanket application of [the state's] Jessica’s Law in March’s In re Taylor (PDF).  The justices noted that parole officers may impose residency restrictions on a case-by-case basis.  But they unanimously agreed that universal application of the law violates offenders’ constitutional rights — and doesn’t keep children safe.

The law “has hampered efforts to monitor, supervise and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators,” now-retired Justice Marvin Baxter wrote.  Though the decision applied only to parolees in San Diego County, the California Department of Corrections and Rehabilitation soon extended it to parolees statewide. CDCR spokesman Luis Patino says the state attorney general’s office believes courts would apply Taylor to every county.

California is not the only such state.  Later in March, a Michigan federal court struck down application of that state’s “geographic exclusion zones” to six plaintiffs, saying the law is unconstitutionally vague.  And in February, the New York Court of Appeals ruled that all local sex offender residency laws are pre-empted by state law, which does not include residency restrictions.

Courts weren’t always so friendly to these challenges. The highest court to rule on residency restrictions, the 8th U.S. Circuit Court of Appeals at St. Louis, ruled in 2005’s Doe v. Miller (PDF) that Iowa’s residency restrictions did not violate offenders’ constitutional rights.  That’s an important case, says professor Wayne Logan of Florida State University College of Law.  Most courts considering federal challenges on the issue have followed it.

But there are signs that things are changing.  Responding to compelling personal stories and mounting evidence that residency restrictions don’t work — and might even hurt public safety — courts are casting a more critical eye on these laws.  “There’s a public appetite for [sex offender laws], but there’s no evidentiary support that either registries or exclusion zones work,” says Miriam Aukerman, a lawyer for the American Civil Liberties Union of Michigan who represented the plaintiffs in the Michigan case. “And as a result, you’re seeing judges starting to rethink this.”

The facts of Taylor point to one of the biggest criticisms of residency restrictions: They often eliminate so much housing that they force ex-offenders into homelessness.  A 2011 report from the California Sex Offender Management Board expressly noted that “nearly 32 percent of sex offenders on parole are homeless due to Jessica’s Law.”...

And perhaps most damning, Levenson says the consensus among social science researchers is that residency laws don’t reduce recidivism. “We know from decades of research that most child sex abuse victims are well-known to their perpetrators,” she says. “So a person’s residential proximity … is really irrelevant.”

June 29, 2015 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, June 17, 2015

Federal district judge declares unconstitutional Minnesota sex offender civil commitment program

As reported in this AP piece, today brought a big (but not entirely unexpected) federal court ruling concerning constitutional challenges to Minnesota's civil commitment program for sex offenders. Here are the basics:

A federal judge has ruled that Minnesota's sex offender treatment program is unconstitutional, but has deferred any immediate action to await further proceedings on a remedy.  U.S. District Judge Donovan Frank largely sided with the more than 700 residents who were civilly committed to the Minnesota Sex Offender Program after they completed their prison sentences.

Their lawyers argued during a nearly six-week bench trial in February and March that the program is unconstitutional because nobody has ever been fully discharged from it, even those thought to be at low risk of committing new crimes. The state says it has improved the program, including moving more patients through treatment and perhaps toward provisional release.

Frank is calling on Minnesota government's top leaders to personally appear in court to help come up with an alternative structure to a sex offender confinement program. Frank listed Gov. Mark Dayton, House Speaker Kurt Daudt and Senate Majority Leader Tom Bakk among those he wants to take part in a remedies phase that will start on Aug. 10. Frank says stakeholders must fashion a suitable remedy to avoid having the entire program be eliminated and resulting in the release of civilly committed offenders currently in secure facilities.

In Wednesday's ruling, the judge lays out more than a dozen conditions for a restructured program, including that less-restrictive alternatives be implemented and new evaluation and discharge procedures be developed. Throughout his 76-page ruling, Frank says elected officials have been reluctant to modify the indefinite confinement of more than 700 sex offenders out of political fear. But Frank says "politics or political pressures cannot trump the fundamental rights" of those in the program. He stressed that the U.S. Constitution "protects individual rights even when they are unpopular."

Gov. Mark Dayton says there won't be immediate changes to the Minnesota Sex Offender Program in response to a federal judge's ruling that it's unconstitutional. In a statement that was released Dayton said, "We will work with the Attorney General to defend Minnesota's law."

Dan Gustafson, the attorney who brought the class action suit on behalf of the Minnesota Sex Offender Program clients said he is not surprised by the judge's ruling. He said that he advised his clients to be patient because the remedies will take time to create and not all of the clients will be getting out.

The full 76-page ruling, in a case that still clearly is nowhere close to finished, is now available at this link.

June 17, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, June 12, 2015

"'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics"

The title of this post is the title of this notable new paper authored by Ira Mark Ellman and Tara Ellman recently posted on SSRN. Here is the abstract:

This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case.

The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies.  Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.

June 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, June 09, 2015

Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions

DownloadThis lengthy local story, headlined "'Old-fashioned scarlet letter': Elkhart 19-year-old fights sex offender status after encounter with Michigan teen," reviews a notable case highlighting problems with overly broad sex offender registry laws. The piece is subheadlined "During his five years of probation, he can’t have a smart phone or any other device that connects to the Internet, and he can’t live anywhere with Internet access," and here are excerpts:

As Zach Anderson sits in the Berrien County Jail in St. Joseph, Mich., his parents worry. And plead. And fight.

The young man from Elkhart, 19, pleaded guilty in Berrien County, Mich., Trial Court in March to a misdemeanor count of criminal sexual conduct for having sex — consensual sex — on Dec. 19, 2014, with a Niles, Mich., teen. She said she was 17, and met him in person after a whirlwind courtship in cyberspace that started with a meeting via the social app Hot or Not.

It turns out she was only 14, though, two years under the age of consent in Michigan. And now, Anderson finds himself sitting out a 90-day jail sentence, with another five years probation and, of particular concern to his parents, 25 years on Michigan’s sex offender registry. Worse yet, Les and Amanda Anderson, who run a small Elkhart media and printing company, fear their son could face a lifetime on Indiana’s sex offender registry on returning to the Elkhart area after his jail sentence is up.

“Here’s the thing: This mistake should not haunt him the rest of his life,” Les Anderson says from the family home in east Elkhart. That’s where his son — a 2014 Concord High School grad and Ivy Tech Community College student until his jailing — lived before Judge Dennis Wiley handed down the sentence on April 27.

In light of Zach Anderson’s age and clean criminal record, Wiley could have offered him leniency under Michigan’s Holmes Youthful Training Act, as his lawyer sought in sentencing. The Niles girl and her mom — whom the Elkhart Truth won’t name because the teen is a victim — even asked for leniency, asked that the case be dropped altogether.

“What do I say? I feel that nothing should happen to Zach,” the girl said at the first of his two sentencing hearings April 13, accompanied by her mother. “I, I mean I, I don’t know. I just ... if you feel like something should, I feel like the lowest thing possible.”

Her mom followed her daughter at the hearing. “I don’t want him to be a sex offender because he really is not and I know that there’s an age difference and I realize that (name deleted) was inappropriate that night, we didn’t know,” the mother said. She continued: “I’m very sorry and I hope you’ll really consider the fact of just dropping the case. I can’t say anything more than that. I hope you really will for all of our families.”

Wiley didn’t drop the case and ultimately denied Zach Anderson HYTA status, told him he’s “darn lucky” he got the deal he did. HYTA, geared to first-time offenders ages 17 to 21, allows eligible participants to expunge criminal convictions on complying with sentencing conditions, thus avoiding the stigma of a criminal record as they enter their adult years.

The criminal sexual conduct conviction and having to put his name on the list of sex offenders could have dramatic and far-reaching implications for Anderson, his dad says. Lost job and educational opportunities. Social stigmatization. Discrimination. Accordingly, the Andersons will fight the sentencing in court. They plan to argue for HYTA status based on what they and their backers believe to be discrepancies in the sentencing process.

“That is our goal: to get him off the list and be able to function as a normal person in society, be able to live his life like any other person. Because at the end of the day, this is the old-fashioned scarlet letter,” Les Anderson says. He went on: “My son, he’s not a danger to anybody. He’s not dangerous to society. … He’s not going to hurt a little girl. That’s not going to happen.” Even under HYTA guidelines, Zach Anderson would face punishment and repercussions. “It’s not a cake walk. There’s still classes and counseling and restrictions that go along with that. ... That is just much more reasonable than the extreme that he got,” says Amanda Anderson....

Per Hot or Not rules, those ages 13 to 17 are kept separate from users 18 and older. However, in creating a Hot or Not account, the 14-year-old Niles girl identified herself as 18 or over, John Gardiner, Zach Anderson’s first attorney, said in sentencing. After connecting on Hot or Not, the two texted back and forth and, along the way, the girl told Zach Anderson she was 17. He asked her for pictures “of intimate body parts,” Jerry Vigansky, an assistant Berrien County prosecutor, said at sentencing.

Two days after the initial contact, on Dec. 19, they met, according to the girl’s account to the Berrien County Sheriff’s Department responding officer, or R/O, who interviewed her. Authorities got involved, ultimately resulting in the criminal charges, after the girl’s mother called for help the evening of Dec. 19, wondering where her daughter was as she met with Zach Anderson. She worried the girl would miss a dose of medicine....

Call their social app-enabled rendezvous a cautionary tale of the times, one of the consequences of the high-tech, always-connected, Internet-everywhere age we live in. That’s how Wiley, the judge, seemed to view it, as did Vigansky, the prosecuting attorney, and even Gardiner, Zach Anderson’s original lawyer....

Vigansky said there had been “a little rash” of encounters in Berrien County of late like the one between Zach Anderson and the 14-year-old girl. There had been two of them, anyway. He took a dim view, sarcastically alluding to “this great website called Hot or Not.”

“You went online, to use a fisherman’s expression, trolling for women, to meet and have sex with,” scolded Wiley. “That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this.”...

Per Wiley’s sentence, Zach Anderson faces a long list of restrictions during the five years of probation. He can’t have a computer, except for schooling. Can’t have a smart phone or any other device that connects to the Internet. Can’t live anywhere with Internet access. Can’t have an account with Facebook or any other online social network.

He can’t have contact with anyone 17 or younger, his siblings excepted. Can’t live within 1,000 feet of a school. He faces a daily 8 p.m. to 6 a.m. home curfew. He’s to continue his studies, in consultation with his field agent, but can’t take any computer or computer science classes, which had been the planned focus of his Ivy Tech education. “This is what got him in trouble in the first place,” the judge said in sentencing.

To Les Anderson, the restrictions are extreme, the requirement to get on the sexual offender registry unnecessary. “Instead of trying to rehabilitate people, they set them up to fail because there are so many restrictions on them,” he said. That’s why he, his wife and the rest of the family are fighting. They’ve hired Grabel to investigate the legal recourses potentially at Zach Anderson’s disposal, especially to ease the registry requirement. They’ve created a Facebook page, “Justice 4 Zach Anderson, Elkhart.” They seek donations to help offset legal and other costs, $30,900 and counting. They’re selling yellow “Justice 4 Zach” T-shirts.

“Anybody that’s got common sense looks at this and they’re just blown away,” says Les Anderson. “It comes back to the punishment does not fit the crime. Regardless of how you feel about this, the punishment is way too harsh.”

June 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)

Friday, June 05, 2015

"Sex Offender Law and the Geography of Victimization"

The title of this post is the title of this notable paper with important (and suprising) empirical research now available via SSRN.  The piece is authored by Amanda Agan and J.J. Prescott, and here is the abstract (with my emphasis):

Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised — at least in part — on the idea that sex offender proximity and victimization risk are positively correlated.  We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs.

Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live.  To further probe the relationship between where RSOs live and where sex crime occurs, we consider whether public knowledge of the identity and proximity of RSOs may make offending in those areas more difficult for (or less attractive to) all potential sex offenders.  We exploit the fact that Maryland’s registry became searchable via the Internet during our sample period to investigate how laws that publicly identify RSOs may change the relationship between the residential concentration of RSOs and neighborhood victimization risk.  Surprisingly, for some categories of sex crime, notification appears to increase the relative risk of victimization in neighborhoods with greater concentrations of RSOs

Though I cannot readily assess the underlying empirical research in this paper, I can find remarkable the apparent findings that one is generally safer, at least statistically speaking, living in a neighborhood with more registered sex offender without having notification of that fact. In other words, the empirical work in this paper seems to truly support the aphorism "ignorance is bliss."

June 5, 2015 in Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4)

Friday, May 29, 2015

"For Juvenile Sex Offenders, State Registries Create Lifetime Of Problems"

The title of this post is the headline of this NPR piece.  Here are excerpts:

Forrest Hampton is about to become a family man and he couldn't be happier. He's 25 and he lives in a suburb of Dallas with his fiancée, who's due to have their baby practically any minute. They've already picked out a name: Raven.

In most ways they are a normal family. Except for one thing. Until last year, Hampton was a registered sex offender. "I honestly don't believe I was supposed to be registered in the first place," he says, "but I wasn't in the position to fight my case." That's because Hampton was found guilty at age 13 of having sexual contact with a 9-year-old girl. He says he was a troubled kid, but not a pedophile.

Texas is one of about 40 states that will put children on sex offender registries; half make those registries public. Hampton went through an adolescent sex offender therapy program, and, by the time he was 18, was ready to start fresh. But he says being registered made that impossible....

Hampton's situation is fairly common. That's why, in the last few years, courts and legislatures in states such as Pennsylvania, Michigan and Wyoming, have started to question the practice of registering juveniles.

Bruce Burkland is the director of Teton Youth and Family Services near Jackson Hole, Wyo. Counselors work with kids who were victims of sex crimes as well as juvenile sex offenders. Burkland says a lot of those offenders are technically in their mid-teens, but "developmentally and emotionally their age is much more around eight or nine."

Juvenile sex offenders also re-offend at a much lower rate than adult offenders, according to the Justice Department. Burkland says his therapy is designed to help them build healthy relationships with their peers. But he's not advocating for the registries to go away: some minors are a real threat. "The juvenile who is looking for multiple opportunities and just prefers and likes to have contact with younger children would be a high risk to re-offend, and should be on the registry," he says.

Instead Burkland says prosecutors and judges should have more discretion to figure out who needs to be registered and who doesn't. One of the few people working to change this practice is Nicole Pittman, a director at the advocacy group Impact Justice. "We are criminalizing normative child sexual behavior in large fashion," she says.

Pittman adds that the practice of registering juveniles developed in the '90s, when a series of federal and state laws establishing registries ran head-on into the child super predator scare. In 2006, a federal law started to hold back funding to states that didn't register kids for certain sex crimes. Pittman says the result is that kids are labelled as sex offenders for acting like kids.

May 29, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)