Saturday, April 10, 2010
Maryland legislature moving forward on branding sex offender drivers' licensesAs this AP article details, "
Senators passed legislation with the provision on Saturday. Sen. Richard Colburn, R-Dorchester, sponsored the amendment, which requires the marking to be done in a way that only law enforcement can understand. He says it would alert police to ask more questions if they stop a registered sex offender with a child.
Opponents say adding the markings is akin to a "scarlet letter" and will make it tougher for those on parole to rejoin society. They add it could drive more sex offenders underground as they try to avoid registration requirements.
Friday, April 09, 2010
How should we deal with (mature?) teenagers who knowingly download the worst kiddie porn?The question in the title of this post is prompted by this intriguing local story from Florida, which is headlined "Teenager pleads guilty to possession of child porn, becomes sex offender." Here is how the piece starts:
Patrick Melton, 17, became a sex offender Thursday after pleading guilty to 50 counts of possession of child pornography. Hillsborough County sheriff's detectives first learned of Melton's Internet activity in December 2008. Using a search warrant for his home that following March, they found the images, including one of a man molesting a 2-year-old.
When they tracked Melton down at Tampa Bay Tech, deputies said he admitted downloading them. He told a detective he was 9 years old when an Internet search typo introduced him to child pornography. He meant to type "hot rods," he said. Instead, he typed "hot bods."
Prosecutor Rita Peters said Melton admitted to authorities that if he had not gotten caught, he might have gone on to touch a child.
Taking into account his age, candor with detectives, stable home environment and the fact that many of the images he viewed were of children within his age bracket, prosecutors offered him a deal: six years of probation with sex offender treatment. Melton took it.
Given the various aggravating factors apparently in the mix here — a long history of downloading, lots of images, image involving very young kids, an admitted interest in molestation — I think there is little doubt that the defendant's age here played a major role in his probation sentence. But, as spotlighted by other cases from Florida involving severe sentences for teenagers (including two now before the Supreme Court involving LWOP prison terms), Florida prosecutors and judges do not always view teenagers as less culpable than adults. And there are, of course, statistical reasons to worry that teenager offenders present the highest risk of recidivism.
In light of all these factors, I wonder if readers are generally pleased or generally troubled by the (exceptional?) sentencing outcome in this case. More broadly, I wonder if folks think there are special reasons that teenagers should get a special break when they are involved in on-line sex crimes.
Thursday, April 08, 2010
Mass high court considering GPS tracking rules for sex offendersAs detailed in this Boston Herald article, which is headlined "DAs unite to use GPS on sex offenders," the most popular of modern technocorrections was before the Massachusetts Supreme Judicial Court yesterday. Here are the details:
Allowing sex offenders to roam free without GPS monitoring has district attorneys joining forces to appeal to have judges granted the authority to slap the fiends with ankle bracelets.
The state Supreme Judicial Court yesterday heard both sides of the controversy in a case about a convicted Middlesex County child rapist who objected to wearing a GPS-monitoring device during his 10-year probation term. “These are people who by their very nature cannot control their sexual impulses and are likely to reoffend,” said Middlesex County District Attorney Gerard Leone, whose office prosecuted Ralph Goodwin, the sex offender at the center of the legal battle. “It’s paramount we have some means of significant monitoring.”
After he finished jail and civil sentences last summer, the Probation Department requested GPS monitoring for Goodwin. Superior Court Judge Kathe M. Tuttman, however, ruled she did not have the authority to impose the monitoring. In her ruling, Tuttman cited a 2009 SJC decision that decided a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively....
Since the summer, about 234 sex offenders have been allowed to remove their ankle bracelets as a result of the SJC ruling.
Cape and Islands District Attorney Michael O’Keefe said it makes sense to give judges the right to decide whether GPS monitoring is appropriate. “I believe that judges should have the option to make that finding,” he said. “It doesn’t necessarily mean it would be done in every case.”
Essex County District Attorney Jonathan W. Blodgett agreed. “It’s just another probationary tool to help keep the public safe,” he said. “We have an obligation to speak up about this and ask the court to make a decision.”
Tuesday, April 06, 2010
The latest "grand" development in the debate over child porn restitution "settlements"
This new article from the Minneapolis Star Tribune, which is headlined "Possessor of child porn to pay $1,000 in restitution," provides the latest legal update on a case concerning debates over restitution awards in child porn cases." Here are the details:
Across the United States, some purveyors of child pornography have been ordered to pay millions in restitution to their victims. Others, not a dime. On Monday in federal court in St. Paul, Brandon Anthony Buchanan -- penniless, without assets and serving more than seven years in prison -- agreed to pay $1,000 restitution for possessing images of a victim identified as "Amy." The amount was agreed to by prosecutors, the defense attorney, the judge and Amy's lawyer.
It is the principle -- not the amount -- that was important in Buchanan's case, said James Marsh, Amy's attorney. Buchanan's case, one of more than 400 in which Marsh has asked for restitution around the country, is a sign that more courts accept the idea that possessing even a single child porn photo does measurable harm to victims. "We applaud the judge for what he's done," Marsh said Monday.
The issue of restitution for child porn victims -- and deciding who pays and how much -- came to the forefront in Minnesota three months ago when U.S. District Judge Patrick Schiltz demanded to know why restitution wasn't being sought in Buchanan's case. Buchanan had pleaded guilty in May 2009 to possessing child pornography, including images of Amy, considered one of the most widely circulated sets of child porn in the country. As he does whenever Amy's pictures are recovered, Marsh submitted a letter in Buchanan's case requesting $3.4 million in restitution.
Marsh said he has won restitution settlements ranging from $5,000 to $150,000 in about a third of the cases. A few courts have ordered millions. Some have ordered nothing....
Defense attorneys have argued that ordering restitution from everyone who possesses child pornography is better left to civil courts, rather than the criminal system. Others say that while the possessor of child porn almost certainly causes harm to its victims, determining the weight of that harm -- among potentially millions of offenders -- is nearly impossible...
Schiltz dived into the center of the debate when he issued an order Jan. 4 asking why restitution was not being sought in Buchanan's case. Schiltz said that Congress has clearly intended that restitution be considered for all crime victims -- including child porn victims. Yet, in Buchanan's case, the U.S. attorney's office and Buchanan's defense attorney agreed that no restitution would be paid.
The prosecutor replied that Amy was, indeed, entitled to restitution. On Monday, all sides agreed that $1,000 was appropriate. Officials with the U.S. attorney's office declined to comment further.
Marsh said that $1,000 -- to be paid to the U.S. Clerk of Court -- is the minimum amount he has agreed to in cases where the offender is destitute. "In a world of unlimited possible defendants with limited resources, defendants like Buchanan just aren't of interest to us," he said.
It is telling (and troublesome?) that this article describes the criminal punishment imposed in this case as a "restitution settlement" given that a resolution was reached here once "all sides agreed that $1,000 was appropriate." Nevertheless, this case formally involved a US District Judge ordering a criminal defendant to pay restitution as part of his (required) punishment for his criminal offense. Still, functionally, this process does not seem like classic and traditional criminal law. Whether that functional reality is a virtue or a vice is a terrifically difficult policy question that will surely continue to rage on.
Saturday, April 03, 2010
DC Circuit rejects 30-year ban on all computer use for sex offenderAs detailed in this Wired story, "a federal appeals court Friday overturned a 30-year computer ban imposed on a sex offender caught in an online police sting." The opinion came in US v. Russell, No. 08-3120 (DC Cir. Apr. 2, 2010) (available here), which begins this way:
Defendant Mark Russell pleaded guilty to one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) (2006). The district court sentenced him to 46 months of imprisonment and 30 years of supervised release. A special condition of his supervised release specifies that Russell may not “possess or use a computer for any reason.” Russell challenges the duration of his supervised release and the computer restriction, arguing that each is substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). We affirm the length of the supervised release, but vacate the computer restriction and remand for resentencing.
This ruling provides yet another example of how modern technologies are presenting new and interesting issues for sentencing and appellate courts. The Wired piece provide this bit of additional context:
That inflexible ban on computer use is “substantively unreasonable” and “aggressively interferes with the goal of rehabilitation,” ruled the U.S. Court of Appeals for the District of Columbia.
It’s the latest decision on an issue that has some, but not all, courts moving toward accepting the internet as a basic freedom that even convicts should not be permanently denied. In January, the 3rd U.S. Circuit Court of Appeals in Philadelphia overturned a lifetime internet ban against a child porn offender, calling such bans “draconian” in terms of employment opportunities and “freedoms of speech and association.” But a few months earlier, the first unconditional lifetime internet ban to be appealed was upheld by the Atlanta-based 11th U.S. Circuit Court of Appeals.
Friday, April 02, 2010
Should sexting lead to sex offender registration?The question in the title of this post is inspired by this long ABC News piece from a segment on Nightline, which is headlined "'Sexting': Should Child Pornography Laws Apply?; Legal Debate Springs Up After Man Put on Sex Offender List for Forwarding Risque Images." Here is a snippet:
NYU law professor Amy Adler says "sexting" -- teens sending and receiving pictures of themselves in sexually suggestive poses -- wasn't even on the Supreme Court's radar when justices made their pornography ruling 28 years ago. "Technically, it is child pornography," said Adler. "But I don't think it's the kind of case where child pornography law is the right legal framework to use to judge it."...
"One thing is I think we may be sending mixed messages to teens right now, because mainstream culture is showing teens in all sorts of sexual scenarios," said Adler. "Mainstream television with "Gossip Girl," showing teens hooking up, Miley Cyrus engaging in what many people thought was pole dancing at the "Teen Choice Awards." So on the one hand we have mainstream sexual depiction of teens, and on the other hand we're telling teens that if they do that themselves, they can go to jail."
Plenty of teens are finding that out. In Iowa, Jorge Canal had to register as a sex offender, like Alpert, for sending a nude picture of himself to a 15-year-old girl. He was 18 at the time. In separate cases in Pennsylvania and Ohio, kids who've sent or received and distributed sexy photos have agreed to curfew, community service, or no cell phone or Internet usage for a few months.
"Child pornography law was crafted to protect children from pedophiles, that's the idea behind it," said Adler. "But now what we have is the law applying to situations where the child himself or herself is making the pornography. So it's this odd situation where suddenly the pornographer and the victim are one in the same person. And in my view that's not the kind of scenario that child pornography law should cover."
Three states -- Nebraska, Utah and Vermont -- have already changed their laws. Fourteen other states ... are considering changes.
Monday, March 29, 2010
"Disentangling Child Pornography from Child Sex Abuse"The title of this post is the headline of this notable new paper now on SSRN from Carissa Byrne Hessick. Here is the abstract:
Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected.
This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.
Saturday, March 27, 2010
Should former NY Governor Elliot Spitzer have to register as a sex offender?The question in the title of this post is inspired by this local story from the heartland, which is headlined "
A bill passed by the Kansas House on Wednesday would land people convicted of hiring a prostitute on the state’s sex offender list for 10 years.
Many states, including Kansas, already require sex offender registration for those soliciting minors. Some states, such as California, give judges the discretion to require registration in solicitation cases.
But adding solicitation to the crimes requiring offender registration would be a significant expansion of the offender registry, critics said.
Given that former NY Gov Spitzer has never formally been convicted of hiring a prostitute, I suppose he need not yet worry about being subject to all the collateral consequences that face offenders who end up on a sex offender registry. Nevertheless, using him as an example of a (typical?) John provides a good focal point for a debate about whether this type of criminal should be required to register as a sex offender.
Wednesday, March 24, 2010
Another vet, claiming PTSD contributed to child porn downloading, gets big sentencing breakThis remarkable local story out of Montana, which is headlined "Man blames PTSD for child pornography downloads," reports on another notable sentence break given to a notable child porn offense. Here are the details, which spotlight many of the hottest issues in current federal sentencing debates:
An Iraq war veteran in Helena, who claimed that post-traumatic stress disorder contributed to his viewing child pornography, was sentenced Tuesday to two years in federal prison, to be followed by 10 years of supervised probation.
Keith Madsen said it was during his deployment in Iraq in 2004 that he began looking at pornography, and when he returned home with an injured arm, depressed and suffering from anxiety attacks, that he escalated his viewing from adult photos to those of children. He would download the images from his work computer at Fort Harrison — where he was a member of the Army National Guard Reserves — onto his iPod for viewing at home.
It was an unusual case in a couple of aspects, including the defense, the plea agreement and the sentencing. The U.S. Attorney’s Office had allowed Madsen, 27, to plead guilty to possession of child pornography, and dropped the more serious charge of receipt of child pornography, which carries a mandatory minimum sentence of five years in prison.
Assistant U.S. Attorney Marcia Hurd said that was done in part because of Madsen’s mental health diagnoses, which include not just PTSD but also long-term anxiety and obsessive-compulsive disorders, and depression. “He’s been given a significant break. We have a policy at the Department of Justice (that in a plea agreement) they must plead to the most significant charge, and I made a special case to give him leniency,” Hurd said.
But she was quick to add that some type of jail term was necessary, not just because by law Madsen could only be on probation for five years or less, but also because of some of the horrific images he downloaded. She said 119 child pornography images were found on his iPod. “These are not just pictures. He wasn’t just surfing the Internet and looking at something that’s not real,” Hurd said. “We are talking about pictures, not of naked teen girls, but pictures of 3-, 4- and 5-year-olds raped and sodomized by adult males and little boys sexually abused by adult females. He kept looking at them and put them on his iPod, and didn’t delete them until he was caught with them.”
Hurd added that Iraq war veterans who had worked on the case were upset that part of Madsen’s defense included PTSD. “They took great offense at the suggestion that service to their country or even PTSD was responsible,” Hurd said. “PTSD is not responsible or an excuse for someone to be involved in child pornography.”
But Fatima Amelkin, a licensed clinical social worker who has treated Madsen since last June, argued that in her opinion, he wasn’t a sexual offender even though an analysis by a federal therapist said he was. She said he has a chemical imbalance that contributed toward his mental health issues, but that he was being successfully treated for those and wasn’t a danger to his family or the community.
“The Veterans Administration didn’t provide him with the appropriate services as he deserved,” Amelkin said, noting that he wasn’t diagnosed with PTSD until five years after his return from Iraq, and that the diagnosis didn’t come from the military, but from her as a private practitioner. “… I don’t see Keith as a classic, or what you would expect a sex offender to be, so I don’t consider him to be a sex offender.”
Friends and family members testified on Madsen’s behalf, saying that his tour in Iraq changed the outgoing, friendly Madsen into someone reserved and quiet, attributed in part to his PTSD....
In letters and testimony, they added that Madsen is a decent man and a hard worker who deserves a second chance. Madsen, who was in tears at times as he addressed the court, professed deep-felt remorse and apologized for the impacts his actions had on those around him. He also noted that he can’t go hunting anymore, will have to register as a sex offender and hasn’t been allowed to pick up his 2-year-old son from day care or even spend time alone with him. “There isn’t one day that passes that I don’t regret what I did,” Madsen said.
He came to the attention of special agents after a routine check of computers at the Veteran’s Administration offices at Fort Harrison on May 14 last year turned up an address of a person accessing child pornography sites on the Internet, Hurd said. It was traced to Madsen’s computer, so as a ruse, Madsen was told on June 2 that the computer had a virus and needed to be replaced. The following day, he told his supervisor that he had been visiting porn sites, then minimizing the pictures while they were downloaded onto his iPod to be viewed at home.
U.S. District Court Senior Judge Charles Lovell said while PTSD is troublesome and that incarceration could possibly harm Madsen, he worried that Madsen wouldn’t get the help he needs in the community, especially due to the five-year probation limitation. “The court has to consider not only the welfare of the defendant, but also the danger to the public and the best manner in rehabilitating the defendant,” Lovell said, adding that the two-year sentence is a significant downward departure from the recommended guidelines of 57 to 71 months for Madsen. “It is perhaps the most lenient sentence this court has imposed in a case of this kind, which is a credit to your background and character.”
This reporting is especially valuable because it spotlights the impact and import of prosecutorial discretion as much as judicial discretion. The federal prosecutor could (and should?) have demanded a plea to a charge that carried a 5-year mandatory minimum term, but she decided this was a "special case." But, problematically, one aspect of what makes this case "special" is the fact that the defendant used VA computers while at work to download kiddie porn.
Of course, as the reporting also shows, this defendant is to suffer some (not especially unique) collateral consequences in addition to his "lenient" prison term in the form of the (scarlet) sex offender label, permanent loss of his Second Amendment rights, and perhaps permanent diminishment of his parental rights. I suspect that these collateral consequences will impact and diminish the defendants qualify of life for decades in ways that the exact number of years he serves in prison will not. And, arguably, the failure of our society to truly take care of our servicemen placed a role in this human tragedy.
Monday, March 22, 2010
"Argentina province OKs chemical castration for rapists"The title of this post is the headline of this recent CNN piece. Here are the details (with emphasis added by me on one key aspect of this story):
Officials in Argentina's Mendoza province have authorized chemical castration for rapists after a significant increase in sexual assaults last year. Mendoza authorities convened a scientific legal committee and authorized the voluntary chemical castration by decree.
"By using medication that lowers the person's sexual desire and with psychological treatment, the person can be reintroduced into society without being a threat," Mendoza Governor Celso Jaque said. Eleven convicted rapists in the province have agreed to the treatment in return for reduced sentences.
Several members of the legal committee said the treatment must be voluntary or it would violate international law and Argentina's constitution....
The term "chemical castration" is a misnomer because the practice involves medication, not surgical intervention. Its effectiveness also stops when treatment is discontinued.
The practice in Mendoza follows measures adopted in several European countries and eight U.S. states: California, Florida, Georgia, Montana, Oregon, Wisconsin, Louisiana and Iowa. Depending on the success of the program in Mendoza, the rest of Argentina could follow suit, officials said.
Though I suspect there could be considerable support for broader use of chemical castration for sex offenders in the United States, I wonder if folks would support shorter prison terms in conjunction with this use of a punishment alternative. Similarly, I fear that folks who complain about some prison sentences being too long would also complain about chemical castration being a means to bring down prison terms for certain sex offenders.
Some older and newer related posts on chemical castration:
- Isn't chemical castration worth trying if it works?
- "Killing puts 'castration' on French agenda"
- Alabama legislators discussing castration and other novel punishments for sex offenders
- Are there reliable data on the efficacy of chemical castration?
- "Europeans Debate Castration of Sex Offenders"
- Huff Post commentary urging stiffer sentences and chemical castration for sex offenders
Saturday, March 20, 2010
"Rethinking Sex Offender Laws for Teenage Texting"The title of this post is the headline of this new New York Times article. Here is an excerpt:
In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer — known as “sexting” — have risked felony child pornography charges and being listed on a sex offender registry for decades to come.
But there is growing consensus among lawyers and legislators that the child pornography laws are too blunt an instrument to deal with an adolescent cyberculture in which all kinds of sexual pictures circulate on sites like MySpace and Facebook.
Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.
And on Wednesday, the first federal appellate opinion in a sexting case recognized that a prosecutor had gone too far in trying to enforce adult moral standards. The opinion upheld a block on a district attorney who threatened to bring child pornography charges against girls whose pictures showing themselves scantily dressed appeared on classmates’ cellphones.
“There’s a lot of confusion about how to regulate cellphones and sex and 16-year-olds,” said Amy Adler, a law professor at New York University. “We’re at this cultural shift, not only because of the technology, but because of what’s happening in terms of the representation of teen sexuality as you can see on ‘Gossip Girl.’”
Thursday, March 18, 2010
Oklahoma legislature moving forward with capital child rape billAs detailed in this article in Tulsa World, an Oklahoma Senate panel "on Wednesday passed a measure calling for the death penalty for certain sex offenders despite concerns that the legislation runs afoul of a recent U.S. Supreme Court ruling." Here's more:
House Bill 2965 would allow for the death penalty for someone convicted of raping a child age 6 or younger if the perpetrator had been convicted of a felony previously for which the punishment included a term of 10 years or more in prison.
The measure would not apply to a parent, guardian or someone who has custody of a child. Rep. Rex Duncan, R-Sand Springs, the measure's House sponsor, said that in child-custody cases, all sorts of things can be alleged. The exclusion was designed to prevent people involved in custody cases from facing the death penalty based on possibly false accusations.
Sen. Richard Lerblance, D-Hartshorne, said the measure runs counter to a U.S. Supreme Court decision that struck down a Kentucky law that imposed the death penalty for the rape of a child. In that 2008 decision — in Kennedy v. Louisiana — the court held that a death sentence for someone who raped but did not kill a child and who did not intend to assist another in killing the child was unconstitutional.
Lerblance said that although raping a child is "dastardly," the nation's high court has ruled on the issue. He said the bill is plainly unconstitutional and that lawmakers have sworn to uphold the U.S. Constitution. "How in good conscience can you ask us to vote on a bill like this?" he asked.
Sen. Anthony Sykes, R-Moore, the measure's Senate sponsor, said the makeup of the court has changed since the 2008 decision. Duncan added that the measure is more narrowly written than a 2006 Oklahoma law that also was struck down by the 2008 high-court ruling.
I have no problem with the Oklahoma legislature or any other elected body continuing to try make certain forms of child rape subject to the death penalty despite the Supreme Court's ruling in its 2008 Kennedy v. Louisiana decision. I do not think the changed composition of the Supreme Court since the 2008 fully justifies such action; rather, the fact that the Supreme Court has persistently asserted that the Eighth Amendment is responsive to "evolving standards of decency" supports and justifies elected bodies expressing through legislation and other means their current view of these constitutionally significant standards.
Indeed, I think the passage by Oklahoma and a number of other states of focused capital child rape legislation ought to prompt the Supreme Court to reconsider its Kennedy ruling. After all, the Supreme Court has repeatedly reversed prior precedent to narrow the reach of the death penalty when more state legislatures have enacted laws that narrow their own capital statutes. Both logic and sound constitutional jurisprudence suggests that the Court should be prepared to reverse prior precedent to expand the reach of the death penalty when more state legislatures have enacted laws that expand their own capital statutes.
Wednesday, March 17, 2010
Third Circuit upholds bar on sexting prosecution threatened by state DAThe National Law Journal has this new piece, headlined "3rd Circuit Bars Prosecution Threat for Teen 'Sexting': Panel also found former DA had violated parents' rights by usurping their roles," which reports on this notable ruling today from the Third Circuit. Here is how the piece starts:
In the first case ever to challenge the constitutionality of prosecuting teens for "sexting," a federal appeals court has upheld an injunction that barred a Pennsylvania prosecutor from bringing child pornography charges against girls who refused to attend a class he had designed to educate youths about the dangers of sexting.
In Miller v. Mitchell, a unanimous three-judge panel concluded there was no probable cause to bring any charges against the girls who had appeared in various states of undress in photos shared among a group of teens. Missing from the prosecutor's case, the court said, was critical evidence about who exactly had transmitted the images.
As a result, the court said, any decision to prosecute the teens after they refused to take the class would therefore be retaliation against them for asserting their First Amendment rights.
Significantly, the panel also found that former Wyoming County District Attorney George Skumanick Jr. had violated the rights of parents by usurping their roles.... "An individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles," 3rd Circuit Judge Thomas L. Ambro wrote in an opinion joined by Judges Michael A. Chagares and Walter K. Stapleton.
UPDATE: How Appealing provides here lots of links to lots of media coverage in Miller v. Mitchell.
Tuesday, March 16, 2010
New academic piece discussing child porn sentencing in an internet ageProfessor Jelani Jefferson Exum has this notable new piece up on SSRN under the title "Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses." Here is the abstract:
Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has its problem as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion – the computer and the internet – and their role in changing the realities of child pornography possession. This Article argues that the computer and internet are important factors in understanding both the victimization of the children portrayed in the illegal images and the formulation of appropriate punishment for those who view and possess such images. However, little attention has been paid to the effect computer behavior and the internet have on the actual manner in which offenders possess child pornography and little thought given to what punishment is warranted given the characteristics of that possession. While some district judges are thinking about these issues when they sentence, they have little guidance from experts in the fields of punishment and sexual crimes because sentencing guidance provided to judges has largely been restricted to the Federal Sentencing Guidelines. Unfortunately, in promulgating Guidelines for child pornography possession offenses, the United States Sentencing Commission has largely treated child pornography possession offenses as traditional possession crimes, and has been increasingly influenced by Congress’ response to political pressure to severely punish such offenders without regard to the stated purposes of punishment. Now that the Guidelines are no longer mandatory, many judges are forgoing the Guidelines’ advice when it comes to sentencing the possessors of child pornography and forging out on their own. Critics say that those judges are being too lenient. While there may be truth to that argument, what is even more apparent is that judges are ill-equipped to respond to the punishment needs of this group of offenders, critics of lenient sentences are discounting the faults in the Guidelines, and the computer and internet have been causing all of the controversy without being a big part of the discussion. A system reboot is in order.
This Article recognizes that child pornography possessors should be punished for the harm and danger that the offense creates and the exploitation that the offense represents. Ultimately, though, this Article argues that any enhancements to child pornography possession sentences should reflect aspects of the offense that actually make the offender more harmful than the typical child pornography possessor. To make this argument, the Article will introduce the genuine problem of the sexual exploitation of children that this country faces. It will explain the specific federal crime of child pornography possession and the methods taken to commit the crime. Further, the Article discusses the sentencing of child pornography possessors, explaining the current Federal Sentencing Guidelines approach, the rebellion of district judges against the Guidelines’ advisory sentencing ranges, as well as the criticism levied at those judges. After exposing the system failure that requires a rebooting of the sentencing approach, the Article proposes a new manner of thinking about child pornography possession as a computer crime that is very different from ordinary possession crimes. This new approach seeks to understand the internet and computer in order to develop a system of punishment that will at least move toward achieving the congressionally-identified goals of punishment. Ultimately, it is not the purpose of this article to suggest an appropriate range of sentences for child pornography possession; nor is the goal necessarily to have the Guidelines ranges for child pornography possessors reduced. Rather, this Article emphasizes that finding a method of giving meaningful guidance to district judges in order to appropriately punish child pornography possessors is necessary, and that this is impossible to do without making the punishment fit the realities of internet and computer crimes.
Some related prior federal child porn prosecution and sentencing posts:
- "Federal judges argue for reduced sentences for child-porn convicts"
- Thorough and thoughtful district court defense of federal child porn guidelines
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- Effective new opinion discussing restitution in federal child porn possession cases
- Another thoughtful and notable district court opinion on restitution in child porn sentencing
- The latest (beneficial?) litigation front in child porn downloading battles
- Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders
- More examples of sentencing uncertainty surrounding federal child porn cases
Georgia Supreme Court upholds sex offender registration for non-sex convictionsThanks to How Appealing, I see that the Supreme Court of Georgia, in Rainer v. Georgia, No. S09A1900 (Ga. Mar. 15, 2010) (available here), yesterday upheld a provision of the state's sex offender registry law that requires the registration of certain persons not convicted of sex crimes. This Atlanta Journal-Constitution article explains:
The law, said to be one of the toughest in the nation, allows the state to keep a tight leash on child molesters, rapists and other sexual predators after they have served their prison time. But it also requires anyone convicted of kidnapping or false imprisonment of a minor to register as a sex offender regardless if a sexual act was committed.
The challenge was brought by Jake Rainer, who committed a drug robbery in Gwinnett County in May 2000. Rainer and his co-defendants picked up a 17-year-old girl who was going to sell them some marijuana. Instead of making a deal, they drove her to a cul-de-sac, took the pot and abandoned her.
Rainer pleaded guilty to robbery and false imprisonment. Because of the latter conviction, he now has had to register as a sex offender. This means he cannot live or work within 1,000 feet of places where children congregate, such as parks, schools and swimming pools.
Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, "are regulatory, not punitive, in nature." "Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is 'sexual' in nature before being required to register," Melton wrote....
Writing in dissent, Chief Justice Carol Hunstein said that although registration as a sex offender may not be considered punishment, "it is no mere administrative formality or minor inconvenience." Hunstein added that an offender who commits a sex crime while kidnapping or falsely imprisoning a victim "would clearly be covered" by other provisions of the registry law.
Department of Corrections records show there are dozens of offenders like Rainer who must register as a sex offender even though they committed no sex crime.
Legislation making its way through the state House may give such offenders a way to be released from the law's tough residency and employment restrictions. House Bill 571, which has the support of key lawmakers, allows offenders to petition Superior Court judges to remove them from the registry.
I am thinking that maybe Jeff Foxworthy ought to consider doing some public service announcements in Georgia that are a variation of his famous "You might be a redneck..." routine. Specifically, I think Foxworthy might help get the word out with lines like:
- "If you are picking up teenagers in your car in Georgia while trying to score some pot, you might be a sex offender....."
- "If you beat up and lock your younger brother in his Georgia bedroom, you might be a sex offender....."
- "If you pick up your grandkid from a Georgia school when it was your former son-in-law's turn, you might be a sex offender....."
Friday, March 12, 2010
"Michigan board reverses parole for sex offender"The title of this post is the headline of this article from the Toledo Blade, which might have also been reasonably headlined "Chelsea King case has echo effect." Here are the basics:
The Michigan parole board has reversed the decision to grant parole to convicted sex offender Rex Layman, a former Lambertville man who was convicted in 1998 of child rape, the Monroe County Prosecutor's office said Wednesday. The full 15-member Parole and Commutation Board took unprecedented action to review Layman's scheduled release after objections were filed by Prosecutor William Nichols.
"We are pleased that the parole board took a second look at this, reversed the decision, and found that he is dangerous to society and a threat to public safety. We believe the public is safer without him on the streets," said Michael Brown, an assistant county prosecutor.
Layman, 61, has served nearly 12 years of the 8 to 30 year prison sentenced he received for sexually abusing two 8-year-old girls in 1997. A three-member panel of the state parole board granted parole release to Layman after reviewing his case last August. Mr. Brown said the parole board ordered that Layman should remained locked up for 24 months.
Wednesday, March 10, 2010
Are there First Amendment problems with barring sex offenders from social media sites?The question in the title of this post is prompted by this piece from the journalism students at Northwestern University’s Medill school. The piece is headlined "New law banning sex offenders from social networks a free speech flop?", and here is how it starts:
Peter Chapman, a 33-year-old convicted rapist, was jailed for life Monday in England for killing Ashleigh Hall, 17, in October. Chapman lured the teenager by putting up a phony Facebook profile posing as a teenage boy.
Illinois passed a law that took effect Jan 1. to target internet predators like Chapman. The law makes it a felony for registered sex offenders to use social networking. “Predators are real and dangerous,” said Rep. Darlene Senger, a co-sponsor of the public act. “In order to become a registered sex offender, you’re not just taking a picture of someone, you’re doing something criminal.”
Senger gave the example of a 42-year-old sex offender who tried to target a 14-year-old Naperville girl by posing as a teenage boy on Facebook. The girl’s mother was suspicious and alerted law enforcement, which thwarted their potential meeting.
However, the law treads on free speech rights if the crimes that got the offenders in trouble were not clearly related to social media, said David Hudson, a First Amendment scholar who teaches at Vanderbilt University.
There is a risk of the law going overboard and seriously violating the First Amendment if it applied to all sex offenders, Hudson said. “It restricts a whole range of media and [offenders] could be using social networking as a medium to communicate to family and friends,” he said.
Tuesday, March 09, 2010
"Restitution for Child Pornography Victims"
The title of this post is the headline given to this local public radio show on an interesting cutting-edge topic which I have covered at some on this blog. Here is the set up:
Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.
Ernie Allen, President and Chief Executive Officer of the National Center for Missing & Exploited Children and the International Centre for Missing & Exploited Children
Steve Kelly, Attorney with the Maryland law firm Miles & Stockbridge and Commissioner on the Maryland Criminal Injuries Compensation Board
Jonathan Turley, Professor of Public Interest Law at George Washington University; practicing defense attorney
Some related recent federal child porn prosecution and sentencing posts:
- More examples of sentencing uncertainty surrounding federal child porn cases
- "Prosecutors seek nearly $200k for child porn victim"
Saturday, March 06, 2010
Huff Post commentary urging stiffer sentences and chemical castration for sex offendersAlex D'Adrea has this notable new commentary at The Huffington Post, which is headlined "Sexual Predators and Their Threat to Society: Our Laws are Not Enough." Here are excerpts:
From state initiatives like Jessica's Law and Megan's Law to federal initiatives, it is clear sexual offenders and their acts are on everyone's mind. Alabama Representative Arthur Payne who just had a law passed disabling sex offenders from working in public transit situations where children are accessible. This, however, is not enough. Just take a look at this week's Chelsea King case, where sex offender John Albert Gardner III allegedly raped and took an innocent high school students life. He was convicted once before for sexual offenses and let out after only five years of imprisonment. Sexual predators are often repeat offenders, and our laws allow them to go back out on the streets.
Chelsea King is emblematic of your sister, daughter, mother, or friend. Her situation happens by the numbers every day in America. Our laws are not enough.
My Proposal: Streamline state and federal laws into a comprehensive sexual predatory law for perpetrators who commit sexual violence against minors. This means creating a law that evokes fear so great within predators.
1) Sex offenders who commit crimes against children need longer sentencing. No individual who has sexually assaulted a child should be granted release after only five years like in the case of John Albert Gardner. Pedophiles show time and time again that most are repeat offenders.
2) Chemical castration should occur. This is not a permanent castration. It is a chemical that severely lowers sexual drive in predators.
I understand that my second point is controversial, and may be looked at as unconstitutional, however when standing back to asses these individuals and the acts they commit, this measure seems appropriate. Several US states already enforced similar measures. In 1996 California became the first state to enact legislation providing for chemical castration of certain sex offenders. About 6 months later, in 1997 the Florida legislature overwhelmingly enacted chapter 97-184 opening the door for chemical castration of sex offenders.
The Florida statue mandates court-ordered weekly injections of a sex-drive reducing hormone to qualified repeat sex offenders upon release from prison, and may be administered to first time offenders. The statue authorizes a trial judge to sentence any defendant who is convicted of sexual battery to receive medroxprogesterone acetate or MPA, the chemical castration drug. If the defendant is convicted of sexual battery and has a prior conviction for sexual battery, the trial court is required to impose a sentence of MPA administration....
France, along with a number of other European countries, including Sweden and Denmark, already allows the use of drugs to lower the sex drive of offenders who agree to it. Prime Minster Fillon feels "we have to look at how, as a part of surveillance and control measures after someone leaves prison, we might make this more restrictive if necessary. It's a subject we are working on and we will make proposals to parliament in that direction." In September of 2009 Poland approved a law making chemical castration mandatory for some pedophiles. I feel the United States should take a more aggressive approach to the sentencing of convicted pedophiles, similar in the vein of Poland.
One of the nation's leading authorities on MPA, Dr. Fred Berlin, founder of the Biosexual Psychological Clinic at the John Hopkins Hospital, believes that prevailing research demonstrates that MPA will drastically reduce the rate of recidivism, or reversion to criminal behavior, of some sex offenders after they are released from prison. Most medical experts agree that, under proper conditions, the drug can be an effective rehabilitation tool for a narrow category of sex offenders.
I hope that this will inspire a grassroots movement to enforce harsher punishments on convicted pedophiles, as new measures must be taken in order to protect our children.
When proposals and rhetoric like this is emerging from a liberal website like Huff Post, it may be only a matter of time before these kind of ideas take root in formal legislation.
As regular readers may know, I tend to be open to the idea of much broader use of "technocorrections" like chemical castration if and when there is a reasonable basis to believe such novel punishments might be more effective than prison to reduce recidivism. As noted in prior posts, however, I am not confident that there have been many (any?) rigorous modern assessments of sex offender castration in the United States, even though chemical castration as a form of alternative punishment has been considered (and used?) widely throughout the nation for well over a decade.
Some older and newer related posts on chemical castration:
- Isn't chemical castration worth trying if it works?
- "Killing puts 'castration' on French agenda"
- Alabama legislators discussing castration and other novel punishments for sex offenders
- Are there reliable data on the efficacy of chemical castration?
- "Europeans Debate Castration of Sex Offenders"
Friday, March 05, 2010
"Should registry log teen sex offenders?"The question in the title of this post is the headline of this article from the Jackson (Tennessee) Sun. Here is how it begins:
State legislators expect a strong debate about whether juveniles' names, photographs and other information should be put on a state registry when they are convicted of violent sexual crimes.
State Rep. Debra Young Maggart, R-Hendersonville, introduced a bill last month that would require youths 14 or older to be placed onto a public registry for violent sexual offenses such as rape or attempted rape. The bill, House Bill 2789, also states that when the offenders turned 18, they would continue to have a record as an adult and would be placed on the adult registry.
Some restrictions that apply to adult registered sexual offenders would not apply to the juveniles until they turned 18, according to the bill. For example, adult offenders whose victims were minors can't live, work or attend treatment programs within 1,000 feet of a school, child-care facility, or public park or recreation area.
Supporters of creating a juvenile sex offender registry tout it as a way to make the public aware of violent criminals. Critics of the proposal say many juvenile offenders can be reformed and the bill could harm their ability to live a normal life. An example they cite is potential problems with finding a job.
Rep. Johnny Shaw, D-Bolivar, said he sees many positives about the bill but also has some concerns. He said he'd have to see what amendments are made to the bill before deciding whether he'd vote yes or no. "First and foremost, a crime is a crime, and a sexual offender is a sexual offender whether they are a juvenile or an adult," said Shaw, who serves on the House of Representatives' Children and Family Affairs Committee. "What I'm concerned about is in realizing this out, would this mar the reputation of a child forever?"