Thursday, December 22, 2005
Is a picture worth 1000 more days in federal prison?
This interesting article highlights the perverted logic of the federal sentencing guidelines by detailing that, under the guidelines, a pervert who looks at pictures of children having sex can face a lot more prison time than a pervert who has sex with children:
A Daphne man pleaded guilty in Mobile's federal court Wednesday to driving to Florida to have sex with someone he thought was a 15-year-old girl. Another Daphne man pleaded guilty to possessing and receiving child pornography in an unrelated case. When both are sentenced in March, the child pornography defendant faces significantly more prison time — perhaps six times as much — under advisory sentencing guidelines.
"It's one of the strange things about the child pornography guidelines," said Assistant Federal Defender Lyn Hillman, who represents Lonnie Ray Hodnett. "I've had defendants on child porn charges (for whom) the guidelines would have ended up being lower if they had actually molested a child."...
UPDATE: In the comments and elsewhere, a number of folks have sensibly highlighted that the article referenced above is comparing apples and oranges in terms of the severity of the two offenses discussed. And, to avoid any misleading implications, I should point out that the federal guidelines in most cases will recommend longer sentences for offenders who have sex with children than for those who look at pictures of children having sex. Nevertheless, as the quote by the federal defender suggests, there are some instances in which looking at the wrong kind of pictures can get you as much or more federal time than engaging in the wrong kind of sex.
Also, for anyone interested in more perspectives on these important topics, consider this article about a federal sentencing for an on-line sexual solicitation and this article about a state sentencing of a coach having sex with an underage team member.
Monday, December 05, 2005
Tough sentences for downloading the wrong porn
This morning, the Louisville Courier-Journal has this interesting article, "Cracking down on child porn," which details the lengthy sentences defendants are now to receive under the federal guidelines for downloading illegal pornography. The story focuses on a young, married, college graduate facing over 17 years imprisonment because of his huge collection of child pornography on his home computer. The article also includes this interesting discussion of federal sentencing in these cases:
Under 2003 legislation known as the PROTECT Act, Congress increased federal penalties for child-pornography offenders, including a mandatory five-year sentence for receiving or distributing it through the Internet. The U.S. Sentencing Commission, which advises federal courts, has increased advisory prison terms twice since the legislation passed. Sentences increase dramatically based on the number and types of images involved, and if children younger than 12 are depicted.
Judges almost always follow the guidelines, according to a commission report requested by Chief U.S. District Judge John G. Heyburn.... Of 25 federal child-pornography offenders affected by the 2004 guidelines and sentenced this year through September, judges deviated from prosecutors' recommendations and imposed sentences shorter than the guideline in only three cases.
Monday, November 28, 2005
The inevitability of Booker disparity anecdotes
This article in Monday's Newark Star-Ledger, which is entitled "Disparities are emerging in criminal sentencings," reveals yet again how easy it is to spotlight a few federal cases in order to suggest that sentencing disparities are "emerging" in the wake of Booker. The article, in addition to providing background on the impact of Booker, details seemingly disparate sentencing outcomes in seemingly similar child pornography cases from New Jersey.
The Star-Ledger article is interesting and generally well done, although it fails to note that in roughly 2/3 of all cases in which judges impose sentences below the guidelines, these sentence reductions are at the behest of prosecutors. That failure in turn highlights broader concerns I have about these sorts of post-Booker news stories: these articles generally fail to explore how prosecutors can be the source of sentencing disparities and how factors like divergent fast-track programs or cooperation policies (or even the basic crack-powder cocaine differential) might have produced pre-Booker disparities that were even more disconcerting than any post-Booker disparities resulting from divergent judicial decisions.
I fear it is inevitable that the post-Booker world will be flyspecked and that selected anecdotes will be the basis for (overly broad) claims that greater sentencing discretion is leading to greater disparity after Booker. (Recall, of course, that this is exactly what AG Alberto Gonzales did when calling for a legislative "Booker fix" in his speech this past summer (basics here, commentary here and here and here).)
Ultimately, the real story of Booker's impact on sentencing disparities is a lot more nuanced than the Star-Ledger article suggests. And I hope to explore these realities in much greater depth in forthcoming posts in my "Dead Booker walking?" series.
Friday, October 14, 2005
Seventh Circuit on departures and reasonableness review
The Seventh Circuit today in US v. Johnson, No. 04-1463 (7th Cir. Oct. 14, 2005) (accessible here), affirmed a sentence in a child pornography case in which, pre-Blakely, the district judge departed upward from a sentencing range of 70 to 87 months' imprisonment to a final sentence of 236 months' imprisonment. The case involved images which the sentencing judge "characterized as the most shocking he had seen in sixteen years on the bench," and the Seventh Circuit's opinion in Johnson provides a thorough and thoughtful explanation for its conclusion that this above-guideline sentence is reasonable.
Considering its other decisions discussing reasonableness over the last few weeks (discussed here and here and here), the Seventh Circuit merits praise for working hard to try to give reasonableness review some real content. Despite these efforts, however, I fear that quixotic character of appellate review for reasonableness, combined with a strong institutional disposition in the circuits to affirm most sentences, likely means that reasonableness review will always be an elusive concept in the post-Booker world. (Ever the optimist, though, I have some hope that whenever we get some data from the USSC on appellate issues, we might find that reasonableness review has at least a few predictable features.)
One interesting facet of this latest Johnson decision is how the Seventh Circuit talks about departures in the post-Booker world. As noted way back in this February post, the USSC and others have urged sentencing judges to consider and address departures and variances distinctly. But, confirming my instinct that these concepts might get collapsed post-Booker, consider this passage from Johnson:
Johnson's framing of the issue as one about "departures" has been rendered obsolete by our recent decisions applying Booker. It is now clear that after Booker what is at stake is the reasonableness of the sentence, not the correctness of the "departures" as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory. United States v. Castro-Juarez, No. 05-1195, 2005 WL 2417065, at *3 (7th Cir. Oct. 3, 2005) ("the question . . . is ultimately the reasonableness of the sentence the district court imposed, not the court's application of a guideline authorizing an upward departure"). Now, instead of employing the pre-Booker terminology of departures, we have moved toward characterizing sentences as either fitting within the advisory guidelines range or not.
Wednesday, September 14, 2005
Significant Massachusetts ruling on sex offender sentencing
Today in Commonwealth v. Pagan, No. SJC-09332, 2005 WL 2210333 (Mass. Sept. 14, 2005) (accessible here, perhaps), the Supreme Judicial Court of Massachusetts addressed various constitutional issues (and found some constitutional problems) with a relatively new state statute for sentencing sex offenders. Here is the opinion's introduction:
The defendant appealed from the imposition of a term of community parole supervision for life (CPSL).... Specifically, he claims that (1) sentencing him as a repeat offender without indicting him as such is a violation of art. 12 of the Massachusetts Declaration of Rights; (2) G.L. c. 275, § 18, is unconstitutionally vague; and (3) G.L. c. 275, § 18, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).
For the reasons discussed below, we hold that a term of CPSL may be imposed lawfully on a repeat offender so long as the indictment or complaint alleges that he is a repeat offender, as required by art. 12. We further hold that G.L. c. 275, § 18, is unconstitutionally vague as to first time sex offenders because it provides uncertain and conflicting standards that fail to inform defendants, prosecutors, and judges what is required before CPSL may be imposed. In particular the statute identifies a standard of proof (clear and convincing evidence) but it contains contradictory language as to whether it is the Commonwealth or the defendant who must meet that standard, concurrently providing that the imposition of CPSL must be supported "by clear and convincing evidence" and that a determination not to impose CPSL must also be "supported by clear and convincing evidence." The statute also makes the imposition of CPSL dependent on a fact-finding process, but fails to identify what facts must be found, providing only that the judge must determine whether a defendant shall be committed to CPSL. To the extent that some of the language in the statute suggests that a judge has broad discretion to impose CPSL by applying traditional sentencing factors, it subjects that discretion to a fact-finding process that is inconsistent with that discretion. Moreover, insofar as § 18 is intended to make CPSL dependent on judicial fact finding (as opposed to the exercise of a judge's traditional sentencing discretion), it appears to violate the principle enunciated by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), cases that changed the constitutional requirements for enhanced penalty sentencing after CPSL was enacted.
Thursday, August 25, 2005
USA Today overview of sex offender realities
[H]igh-profile cases ... don't tell the whole story of sex offenders in America. They don't reflect the surprisingly good news: Sex crimes against children have dropped dramatically in the last decade. An online national sex-offender registry was launched in July. And recent research shows doctors can better predict which offenders may strike again....
Dramatic drop in cases. Government figures show the rate of sexual assaults against adolescents ages 12 to 17 plunged 79% from 1993 through 2003, and the number of substantiated sex-abuse cases involving kids of all ages fell 39% in the same time period. [One expert], who has analyzed the data, sees multiple reasons for the decline: Greater incarceration of offenders, more therapy and use of psychiatric drugs, economic improvement in the 1990s and heightened public concern. ...
Treatment helps. Group therapy dropped the recidivism rate from 17% to 10%, according to a 2002 study that [anther expert] co-wrote. He studied 9,454 sex offenders in 43 states.
Sunday, August 21, 2005
Sunday stories of sex and death
Pardon the sensationalized headline for this post, but today the Sunday morning papers include a number of sensational articles that follow-up developing stories about sex offender sentencing proposals and about the process for excluding mentally retarded defendants from the death penalty.
On the topic of sex offender sentencing (concerning which this post from earlier this week generated a robust blogosphere debate), there are articles today from the Washington Post and from the Boston Globe discussing new proposed sex offender legislation in Maryland and New Hampshire. Earlier this week, similar proposals were coming from California Governor Arnold Schwarzenegger, which prompted this harsh editorial from the Sacramento Bee.
On the topic of death sentencing procedures, this article from Virginia canvasses the issues likely to be raised on appeal by death row defendant Daryl Atkins after a jury ruled he was not mentally retarded and thus subject to execution (details here). I expect that a leading cite in briefs filed by Atkins' lawyers will be the recent New Jersey Jiminez decision, discussed here, which concluded that prosecutors seeking the death penalty in New Jersey must prove a defendant is not mentally retarded beyond a resonable doubt.
Friday, August 19, 2005
Debating sex offender sentencing
This post earlier this week on new sex offender proposals touched off an interesting blogosphere debate with Gideon at a Public Defender and with Tom at Confutatis Maledictis. And now Ken at Crim Law has joined to discussion with this thoughtful post.
I think all these posts, and many comments on each of the blogs, do a fine job developing a range of competing issues as the sex offender panic rages on in the media and in statehouses. (For another example, see this story about Kentucky's Lieutenant Governor urging consideration of castration.) Indeed, it is a testament to both the blogosphere and the modern politics of crime that we are seeing far more thoughtful and nuanced discussion and debate of these sex offender issues from bloggers than from politicians.
Wednesday, August 17, 2005
More politicians participating in sex offender panic
A few weeks ago, I noted here that the on-going social panic over sex offenders is finding expression in new "get-tough" sex offender legislation and proposals emerging at federal, state and local levels. This week, California Governor Arnold Schwarzenegger is just the most high-profile politician jumping on this "tough-on-crime" bandwagon:
- From California, this article details that Schwarzenegger "plans a full-court press to garner support" for two sex-offender bills, one which calls for "tens of thousands of California sex offenders [to] be forced to wear electronic tracking devices for the rest of their lives" and another "which also would boost punishment for a wide range of sex offenses."
- From New Hampshire, this article details that "attention generated by several child abductions in other states" has led Governor John Lynch to ask "the attorney general to draft legislation to toughen sentencing and monitoring of sexual predators."
- From New York, this article details that a state assemblyman has "announced a six-point plan to monitor people convicted of sex crimes and the formation of a five-member task force charged with studying enhancements to his monitoring plan, dubbed the Systematic Tracking of Pedophiles, or STOP, Initiative."
All of these articles, and many of the other recent stories of new sex offender laws and proposals archived here, reinforce my often-stated concerns about criminal justice policy being unduly driven by headline-making anecdotes of horrible individual cases (even in other states) rather than by refined data-driven policy analysis. (In this astute post on the California bills, TalkLeft comments that "the surest way to tell a politician is in trouble is when all of a sudden he or she jumps on the 'get tough on criminals' bandwagon.")
Interestingly, some of the articles linked above note the potential high cost of proposals like lifetime GPS monitoring of sex offenders. As has been true in other "tough-on-crime" cycles, economic realities will likely serve as the only brake on these sorts of politically-driven "get tough" sex offender initiatives.
UPDATE: Thanks to this thoughtful post by Gideon, I see that my interest in refined data-driven policy analysis has subject me to some unkind words in this post from Tom at Confutatis Maledictis. Tom suggests I need "a foray out of the ivory tower," but his post, much like a lot of the rhetoric coming from many politicians these days, falls prey to the same sort of anecdote-driven assumptions without addressing deeper realities.
Tom claims that "it has been empirically demonstrated that [sex] offenders are the least amenable to rehabilitation and the most likely to re-offend," and he then cites to two recent high-profile cases to support this broad assertion. But a comprehensive sentencing commission report on these issues from Tom's home state of Virginia spotlights a far more nuanced reality because not all sex offenders are created equal. The data show that the reoffense and rehabilitation story for a small group of high-risk offenders is disconcerting, but for other offenders the reality is much more encouraging. (This article, entitled "New hope for sex offender treatment," from the American Psychological Association discusses these issues effectively.)
Consider, for example, this recent Washington State Study, reporting that "sex offenders re-offend at lower rates than those convicted of other felonies. After five years, 15% of sex offenders return to prison for new offenses compared to 43% of offenders convicted of property crimes." Also consider this data from the Texas Department of Health State Services which reports not only lower sex offender recidivsm rates, but also that "research and clinical reports have begun to demonstrate that a number of treatment methods are effective in modifying some forms of sexual deviance." The data in this area are subject to many assessments, but my chief fear is that politicians are motivated more by polling data than by reoffense and rehabilitation data when they develop the latest "tough-on-crime" campaign.
Tom suggest I want to "prevent the people from protecting themselves and their children," but that could not be farther from the truth. Rather my goal is to push the public dialogue toward sound data-driven analysis so that we get effective policy reforms rather than hollow rhetoric and cost-ineffective proposals that only distract from doing the real, challenging work required for effective sentencing and corrections policy-making. I think that "the hard working people who just want to ensure their kids' safety" deserve nothing less.
ANOTHER UPDATE: Tom at Confutatis Maledictis has added a thoughtful addendum to his original post which articulates effectively the view that, because of the potential harms of sex offenses, he would rather risk significantly over-punishing some sex offenders than risk additional crimes. I agree with a lot of the sentiments expressed in Tom's addendum, though I fear the tone and approach reflected in Tom's original post fosters an environment in which, as reported here by Gideon, private citizens feel emboldened to take matters into their own hands by "slaying and dismembering a convicted sex offender."
Wednesday, August 03, 2005
Great blog debate over residency restrictions
A wonderful blogsphere debate has developed over the constitutionality of sex offender residency restrictions (which, regular readers know, was the subject of major recent rulings by the Eighth Circuit and the Iowa Supreme Court). Lior Strahilevitz kicked off the debate with this post at PrawfsBlawg, which prompted this response from Will Baude at Crescat, which led to this reply from Lior. Be sure to read the comments, too, since they enhance the debate greatly.
Since my constitutional expertise does not go much beyond the sentencing field, I am disinclined to weigh in on the merits of the debate. But I am inclined to highlight how this exchange amplifies my recent points in this guest-post at PrawfsBlawg that blogs can help fill a scholarly gap created by the modern realities of traditional law reviews.
Friday, July 29, 2005
Iowa Supreme Court upholds broad sex offender residency restrictions
Today the Iowa Supreme Court in State v. Seering, No. 34 / 03-0776 (Iowa July 29, 2005) (available here) upheld the state's broad residency restriction on sex offenders. Here is the introduction and conclusion from the opinion, which insubstance echoes the Eighth Circuit's similar ruling about the same law in Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (discussed here):
In this appeal, we consider the constitutionality of Iowa's statutory prohibition against convicted sex offenders living within two thousand feet of an elementary or secondary school or child care facility. The appellee, a convicted sex offender, brought a successful constitutional challenge to the statute in the district court. The State appeals from the district court’s ruling. For the reasons that follow, we reverse and remand this case for further proceedings consistent with this opinion....
We conclude Seering has suffered no deprivation of his federal or state constitutional rights related to substantive and procedural due process, ex post facto laws, self-incrimination, or cruel and unusual punishment. We also observe that the United States Eighth Circuit Court of Appeals recently rejected similar challenges to section 692A.2A under the Constitution of the United States. See Doe, 405 F.3d at 723. This opinion is consistent with our approach and supports the conclusion we reach today.
This is an interesting and important opinion that seems likely to just add fuel to the on-going sex-offender panic. Indeed, just earlier this morning, this story from New Jersey noted that a local township lawyer cited to the Eighth Circuit's Doe v. Miller ruling to support his township's decision to extend its residency restriction "to prohibit convicted sex offenders from living near roller rinks, movie theaters and amusement parks."
More sex offender laws and restrictions in the works
The on-going social panic over sex offenders finds expression these days in dozens of newspaper articles each day discussing new "get-tough" sex offender legislation and proposals emerging at federal, state and local levels. Among the articles catching my eye this morning:
- from New Jersey, this story reporting that a local township has "extended its restricted zones to prohibit convicted sex offenders from living near roller rinks, movie theaters and amusement parks."
- from Pennsylvania, this story reporting on a state bill that "would increase penalties for convicted sex offenders and require live tracking when they are released from prison."
- from Maryland, this article detailing that a state senator "is calling for tougher sentences, including a possible death penalty, for convicted sex offenders in the aftermath of a highly publicized kidnapping and sex abuse case in Idaho."
Every one of these articles provides still more evidence how the laws and restrictions being developed during the current social panic over sex offenders are driven far more by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis.
Thursday, July 28, 2005
Intriguing reaction to sex offender panic
This letter, headlined "Drunken drivers vs. sex offenders" and appearing in the Sarasota Herald-Tribune, makes a number of interesting points in response to the sex offender panic which is producing "get-tough" sex offender legislation at the federal, state and local levels. Here's the lead paragraph:
There are many more unmonitored, lethal, habitually drunken drivers in our midst than there are unmonitored, lethal sex offenders. Drunken drivers maim and kill more children, adolescents and adults than do all of Florida's sex offenders.
Wednesday, July 27, 2005
Latest sex offender idea: five-year minimum federal sentence for failing to register
As detailed in this earlier post, a federal bill entitled the Children's Safety Act of 2005 (HR 3132; available here), a package of previously separate bills aimed at cracking down on sex offenders, was slated to receive consideration by the full House Judiciary Committee on Wednesday. This press release from the Committee provides the details on the Committee's approval of the bill by a vote of 22-4 today, and this AP report indicates that highly debated "was a provision that calls for a minimum five-year prison sentence for convicted sex offenders who fail to register with authorities." Here are some highlights from the AP article:
Democrats called that provision too harsh, noting it could apply to a person convicted of a misdemeanor sex offense. "Failing to register should not have a minimum sentence," said Rep. Jerrold Nadler, D-N.Y. "A judge can make that determination." Under the provision, Nadler said, a person could serve more time in prison for failing to report than for the actual crime committed. "That doesn't make any sense at all," he said.
But Rep. Mark Green, a Wisconsin Republican who is running for governor, said failing to register undermines a key weapon against sex offenders — knowledge of where they're residing. The bill includes Green legislation to add juvenile sex offenders to state registration lists. "It is, in my view, a very serious offense," he said of failing to register. And he defended taking the decision away from judges. "We're here because unfortunately judges have failed us in some of these cases," Green said.
The committee defeated [an] amendment by Rep. Bobby Scott, D-Va., to eliminate the minimum sentences for failing to register, 17-16.... John Conyers of Michigan, the ranking Democrat on the committee [said]: "We need to move past the emotional side of this issue," [and he called the] new mandatory minimum sentences "over the top.... We need to invest in solutions of a preventive nature."
Tuesday, July 26, 2005
Sex offenders bills moving forward
In Alabama, the national panic over sex offender recently found expression last week, as discussed here and here, in a proposal for a mandatory sentence of castration and amazingly heated rhetoric. (A Public Defender has a thoughtful discussion of these developments in this recent post.) As detailed in this story, today the Alabama legislature passed a sex offender bill with many tough terms but without the mandatory castration provision:"We don't want to pass something that will be declared unconstitutional, although I personally think these people who do this to little kids should be shot on the spot," said Rep. Alvin Holmes, D-Montgomery.
At the federal level, as detailed in articles from the AP and local papers, a sex offender bill is also moving forward in the House of Representatives. A bill entitled the Children's Safety Act of 2005 (HR 3132; available here), which is actually a package of separate bills aimed at cracking down on sex offenders, is slated for full committee mark up on Wednesday. Here's a description of the bill from one of the press accounts:
[The Children's Safety Act of 2005] collects numerous previously proposed bills targeting sex offenders under a single proposal. Among them is a bill introduced earlier this year and co-sponsored by Rep. Mark Kennedy, R-Minn., dubbed "Dru's Law" in honor of Sjodin, a 22-year-old Minnesota woman who was abducted, raped and murdered in Grand Forks, N.D. in November 2003. Dru's Law would create a national database of registered sex offenders that would be searchable via the Internet by the general public and would ease the transfer of sex offender records across state lines.
In addition to the Dru's Law provisions, the bill would broaden the legal definition of "sex offender" to include anyone guilty of a felony or misdemeanor sex offense, increase the level of monitoring sex offenders receive after their release, and increase mandatory minimum sentences for sex crimes against children. "America's Most Wanted" host and longtime child safety advocate John Walsh, speaking at the press conference, called it "the most important piece of child protection legislation in the history of the United States."
Saturday, July 23, 2005
Sex offender panic continues in Alabama
I thought that the passage of a bill by the Alabama House providing for mandatory castration of certain sex offenders (detailed here) was the most dramatic example of our society's modern social panic over sex offenders. But this article from the Mobile Register suggests that the mix of politics and sex offenses can lead to a lot of remarkable sentencing rhetoric in Alabama.
As the article reports, Former Governor Don Siegelman, who is expected to run for Governor again, "called for the Alabama Legislature to toughen a sexual offender bill Friday afternoon and include mandatory castration and the death penalty for persons convicted of violent sex crimes against children under 12." Here are some eye-opening quotes from the article:
"If it was up to me, I'd give them the death penalty on the first offense," Siegelman said Friday. "The attorney general has the Legislature in this special session. This is the perfect vehicle to do this thing right. They need to quit being so namby-pamby and squeamish about castration and put that back in the bill."...
During his Friday news conference, however, Siegelman forcefully snapped a 2-foot long pair of red garden shears for effect and said, "It will certainly give them something to think about."
Siegelman suggested the death penalty as an option for a second-time offense. "We don't owe the Joe Duncans of the world anything except a quick trip to the death penalty," Siegelman said, adding that he would give repeat offenders the option of death by lethal injection or "a big jolt from the big Yellow Mama."
In recent posts here and here, Gideon at a Public Defender is expressing understandable concerns about the rash of "sensationalist legislation" in this area. The rhetoric of Siegelman certainly suggests that cooler heads are unlikely to prevail anytime soon. Over at Beltway Blogroll, this post connects this story to the Justice Department's launch of its national sex offender registry (previously discussed in this post) which apparently has received "traffic so heavy that the registry was unavailable" this morning.
For a broader set of perspectives on sex offender sentencing and related issues, check out the links in this post.
Friday, July 22, 2005
Alabama House seeks mandatory castration(!) for certain sex offenders
I have previously discussed in this post and elsewhere the new criminal justice legislation resulting from the modern social panic over sex offenders (which generally is, like so many criminal justice developments, driven more by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis). Whether through residency restrictions or tougher sentences, many legislators are seeking to flex their "get tough" muscles through new criminal laws targeting sex offenders.
But, as detailed in this AP article, the Alabama House has taken these developments to new heights:
The House passed a bill Thursday that would require mandatory castration of persons convicted of violent sex crimes against children under 12 and would require them to wear electronic monitoring devices for the rest of their lives after release from prison.
The House, during more than three hours of debate, heavily amended the legislation proposed by Gov. Bob Riley and Attorney General Troy King. The House bill would prevent all convicted sex offenders from working or loitering within 500 feet of a school, park or business that educates or entertains children. The bill passed the House 96-0.
As the AP article details, a "milder version of the legislation passed the Senate 35-0 [which] provides stiffer penalties for sex offenders, provides for electronic monitoring for at least 10 years and toughens requirements for them to report their location to police, but does not include the castration requirement or other tougher language added in the House." The article also notes that at least some members of the House realize they might have gone too far:
House Speaker Seth Hammett later said he was concerned the House might have amended the bill so much that it is no longer constitutional. He said he hopes the final version that comes out of the special session will be closer to what was recommended by the governor and King [and was passed in the Alabama Senate].
Friday, June 10, 2005
Two interesting non-Booker items from the circuits
Though the busy beavers at the Eighth Circuit have the Booker pipeline still whooshing along with yet another big round of dispositions on this official opinion page, it otherwise seems to be a relatively quiet day on the Booker front. Consequently, I have a chance to note two interesting non-Booker circuit dispositions today:
From the Fourth Circuit, Judge Gregory provides an interesting little dissent (available here) from his colleagues' refusal to reconsider en banc the court's earlier rejection of an ineffective assistance claim in the capital habeas case of Walker v. True, No. 4-22 (4th Cir. Mar. 25, 2005) (original panel decision available here). Here is the opening paragraph of Judge Gregory's dissent from the denial of en banc consideration:
This case, if distilled to its essence, asks this question: what level of legal assistance for defendants in state capital cases is tolerable enough to justify this Court's denial of the protection of the "great writ"? Because the level of representation at the sentencing phase of Walker's capital case was too low to be tolerable under a fair assessment of his Sixth Amendment rights, I respectfully dissent from the order denying rehearing en banc.
From the Ninth Circuit, today we get Huftile v. Miccio-Fonseca, No. 03-16734 (9th Cir. Jun. 10, 2005) (available here), which addresses the proper procedural means for a defendant to challenge in federal court his civil commitment under California's Sexually Violent Predators Act. Huftile is factually interesting and legally intricate, and Mike at Crime & Federalism in this post analyzes the decision better than I can on a late Friday afternoon.
Wednesday, June 08, 2005
Another challenge to sex offender law fails
As has already been noted here and here by others in the blogsphere, the 11th Circuit on Monday in Doe v Moore, No. 04-10279 (11th Cir. June 6, 2005) (available here) rebuffed defendants' claims that Florida's sex offender registration/notification scheme and DNA collection statute violated their constitutional rights to due process, equal protection, travel, separation of powers, and freedom from ex post facto legislation. Considered in conjunction with the recent 8th Circuit Doe v. Miller decision upholding sex offender residency restrictions (discussed here), it is becoming ever more clear that most lower federal courts are unlikely to find constitutional problems with state efforts to regulate the post-incarceration lives of sexual offenders.
On a related note, there was an interesting recent discussion over at PrawfsBlawg about this news that a group of Texas developers are planning a development that promises to be free from registered sex-offenders. Both Christine Hurt and Kaimi Wegner had thought-provoking posts on the topic.
Sunday, May 22, 2005
DOJ planning national sex offender registry
As detailed in this Washington Post article, AG Alberto Gonzales has announced that the Justice Department is planning "a national registry of sex offenders that would allow Internet users to check all the state databases in a single search."
Officials said the Web site is being created in response to complaints from victims' rights groups and some lawmakers that dangerous sex predators were often evading detection by moving across state lines.
Attorney General Alberto R. Gonzales, in a speech at the National Press Club announcing the initiative, said Justice would aim to have a working Web site linked to 20 states within 60 days. The remaining states would be added by fall, he said.
Responding to this news, TalkLeft in this post discusses and links to a lot of its concerns about sex offender registries.
Sunday, May 01, 2005
Sex (offenders) in the city
I now have had a chance to read the Eighth Circuit's decision in Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005) (available here), which upholds against numerous constitutional challenges Iowa's legislation which "prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility." As noted in this post, Mike at Crime & Federalism has already blogged up a storm about the case, and his three posts here and here and here (along with the comments) get to the heart of the legal and policy issues in the case. Concerning Doe itself, I will just add that the case is especially interesting for its substantive due process analysis and also for its reliance on "common sense" rather than hard evidence about sex offender reoffending. Also, the Doe decision, which provides a thoughtful review of a range of sex offender law and policy issues, provides a helpful list in footnote 4 of the twelve other state statutes that place residency restrictions on sex offenders.
Though a lot more could be said about Doe, the broader story is the new social panic about sex offenders which is, like so many criminal justice developments, driven by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis. (I have prior sex offender posts on the power of the headline-making crime and on the surprising and encouraging data about sex offenses and offenders.) Tellingly, this New York Times article today details that Florida, prompted by two terrible crimes, "will soon begin the nation's most aggressive monitoring of child molesters at a time when dozens of states and localities are re-examining their policies." The NY Times article provides an effective national overview of sex offender developments, though the article lacks a refined discussion of the reach and efficacy of what has now been a decade of new criminal laws focused on sex offenses and offenders.
I am concerned about refined discussions of these laws because I fear they can often be written in broad ways that may harmfully fail to distinguish the truly dangerous from others. Though the term sex offender often brings to mind the worst child molester, many sex offender laws can encompass persons who had underage consensual sex or who merely downloaded the wrong dirty pictures of the internet. (Consider the work of the group of Save Our TexSONS, which seeks to prevent "unfair use of [sex offender] laws to prosecute teenagers engaging in consensual sex.")
Relatedly, I fear that broad residency restrictions, which may prevent offenders from living in cities or other areas in which treatment and support services are more readily available, may undermine efforts to keep sex offenders from reoffending. What seems most important to me is that there are follow-up studies and analyses of the efficacy of the sex offender laws which are now being considered a passed during this period of panic.
Friday, April 29, 2005
8th Circuit approves broad sex offender exclusion statute
Mike at Crime & Federalism is already blogging up a storm about the Eighth Circuit's decision today in Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005) (available here), which upheld against numerous constitutional challenges Iowa's legislation which "prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility." This AP report about the case and Mike's first two powerful posts here and here provide plenty of food for thought even before I have had a chance to read the full opinion.
This weekend, after I get a chance to read the 8th Circuit opinion, I hope to do a post on what seems to be an ever-growing "sex offender panic." In the meantime, I have linked below some notable prior posts about sex offender sentencing:
- Perspectives on sex offender sentencing and treatment
- 25 years too long for failure to register
- The intersection of sex offenses and juvenile offenders
- The power of the headline-making crime
- Intriguing report about sex offenders
- Sex offender sentencing
Friday, April 22, 2005
Morning sentencing stories
Here are just a few of the many sentencing items in the morning papers:
- This article in the Houston Chronicle discussing yesterday's sentencings of two Enron Nigerian barge defendants (discussed here and here) suggests that, because the defendants received "far less than the government requested Thursday, [the result gave] white-collar criminal defense attorneys hope the sentences herald a better day for their clients."
- This article from North Dakota discusses the Eighth Circuit's decision yesterday in a major fraud case (discussed in this post).
- This commentary from Wisconsin about a federal sentencing has the compelling title of "Polite bandit gets a polite sentence."
- This article from Pennsylvania reports on a federal sentence in which the defendant received "more than three years in prison for selling mail-order videotapes of fighting pit bulls."
Wednesday, April 20, 2005
Two for Tuesday from the 7th Circuit
Though the discussion of plain error coming from Eleventh Circuit judges is perhaps the most noteworthy of the Booker circuit developments Tuesday (details here), two opinions from the Seventh Circuit caught my eye and merit brief mention:
- In US v. Lewis, No. 03-4100 (7th Cir. Apr. 19, 2005) (available here), Judge Easterbrook expounds on Shepard and the use of criminal history under the guidelines, explaining along the way that "[w]hat matters is the fact of conviction, rather than the facts behind the conviction."
- In US v. Cunningham, No. 03-3006 (7th Cir. Apr. 19, 2005) (available here), Judge Coffey explains, in a decision that also has a brief discussion of reasonableness, why a Paladino remand is not required in a case in which the sentencing judge departed upward based on (uncharged) relevant conduct in a child pornography case.
April 20, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack
Wednesday, March 30, 2005
The intersection of sex offenses and juvenile offenders
Thanks to TalkLeft's post here, I see this interesting abc-news article about a young man who committed a sex offense when 13 years old now forced at age 18 to be placed on a sex-offender registry. The article thoughtfully explores the challenging issues raised by the intersection of sex offenses and juvenile offenders.
The case noted in the article presents another example — along with the recent California case noted here overturning a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration — of the extensive reach and impact of sex offender registration laws. Also, the article perhaps implicates ideas I developed here in the wake of the Supreme Court's juvenile death-penalty decision in Roper about whether the High Court's statements in Roper about the "mitigating force of youth" should come to bear in some non-capital sentencing settings.
25 years too long for failure to register
As first noted by Appellate Law & Practice here, a California intermediate appellate court in People v. Carmony, No. C038802 (Cal. App. 3d Dist. Mar. 25, 2005) (available here) has found unconstitutional a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration within 5 days of his birthday. The Carmony court called the defendant's failure to re-register "completely harmless and no worse than a breach of an overtime parking ordinance," and it concluded that this application of three strikes to the sex offender registration law violates the federal Eighth Amendment prohibition on "cruel and unusual punishments," as well as California's constitutional prohibition on "cruel or unusual punishment."
The extended Carmony opinion provides a useful primer on both California's three-strikes law and modern Eighth Amendment analysis. It also brings to mind this recent post about the development of state constitutional law, and post here and here about sex offender sentencing. Of course, this is the type of non-violent case that, I believe, would no longer have been subject to California's three-strikes law if last year's amendment to the law had been approved by votes in Proposition 66 (see discussion here and here).
Monday, February 21, 2005
Perspectives on sex offender sentencing and treatment
In recent Booker-related posts here and here, I have stressed the importance of focusing upon data rather than anecdote when assessing federal sentencing post-Booker. In an interesting post here, TalkLeft spotlights this very important issue in the context of sex offender sentencing and treatment. In addition to encouraging a review of that post, here are some earlier related posts on sex offender sentencing:
- The power of the headline-making crime
- Intriguing report about sex offenders
- Sex offender sentencing
Wednesday, January 12, 2005
A brief Booker break (sort of)
I will have a lot more Booker commentary tomorrow, but a few other notable sentencing items caught my eye tonight.
First, this New York Law Journal article provides a thoughtful account of "the latest in a series of cases where judges struggle with the legal, pragmatic and appropriate Internet restraints that may be imposed as a condition of probation or parole." The piece had me wondering again about California's new law, discussed here, making it a crime for registered sex offenders to enter the state's Megan's Law database.
Second, Marty Lederman at SCOTUSblog here notes that Roper v. Simmons, concerning the constitutionality of the juvenile death penalty, is now the only opinion outstanding from the October session. He also notes that Justice Kennedy almost certainly was assigned to write the majority opinion.
And speaking of Justice Kennedy, I found it very interesting and notable that he did not speak at all in Booker. Justice Kennedy has always seemed keenly interested in sentencing issues, as reflected in his potent speech to the ABA in 2003 assailing federal sentencing policies and in the various interesting opinions he has authored in sentencing cases. Of course, especially since, practically speaking, Justice Breyer's Booker opinion echos aspects of Justice Kennedy's ruling for the Court in Koon (which championed judicial discretion through departures under SRA), it certainly seems possible that Justice Kennedy may have played a behind-the-scenes role in the ultimate Booker outcome.
Thursday, January 06, 2005
Sentencing and religion
The intersection of sentencing issues and religion is a fascinating (and, in my view, underexamined) topic. These matters are actively percolating in the corrections setting, with the faith-based prison movement and a forthcoming Supreme Court case about RLUIPA (background here). We also often see opposition to the death penalty influenced by religious views, as evidenced by developments last year in Ohio and the work of Sister Helen Prejean. But on occasion, as evidenced by an intriguing Sixth Circuit case today, these matters can also intersect in individual sentencings. (Thanks to How Appealing and a reader for the tip.)
In today's Sixth Circuit decision in Arnett v. Jackson, No. 03-4375 (6th Cir. Jan. 6, 2005), a divided panel reversed a grant of habeas corpus in favor of a state prisoner in a child rape case. The district court granted habeas due to the state trial judge's reference to the Bible during petitioner's sentencing hearing, based on the conclusion that the "trial court's use of the Bible as a 'final source of authority' constituted an impermissible factor for sentencing."
The Sixth Circuit, over a vigorous dissent, disagreed: it contended that "the principle embedded in the referenced Biblical passage (of not harming young children) is fully consistent with Ohio’s sentencing consideration to the same effect," and it suggested that the state trial judge "cited to the Biblical passage to underscore the contention that our society has a long history of sternly punishing those people who hurt young children." The whole case is a very interesting read, as this provocative passage from the Judge Clay's dissent highlights:
If the Constitution sanctions such direct reliance on religious sources when imposing criminal sentences, then there is nothing to stop prosecutors and criminal defense lawyers from regularly citing religious sources like the Bible, the Talmud, or the Koran to justify their respective positions on punishment. The judge would be placed in the position of not only considering statutory sentencing factors, but also deciding which religious texts best justify a particular sentence. Under this approach, the judgments of trial courts could begin to resemble the fatwas of religious clerics, and the opinions of appellate courts echo the proclamations of the Sanhedrin. The result would be sentencing procedures that create the perception of the bench as a pulpit for which judges announce their personal sense of religiosity.
The power of the headline-making crime
I have often lauded Minnesota for its handling of Blakely issues (see here and here), and Professor Richard Frase's recent article (discussed here) highlights Minnesota's guideline system as a model for other jurisdictions. But the latest news from Minnesota highlights that even this state can have its sentencing policy influenced greatly by one headline-making crime.
As detailed in this article, as a result of the disappearance of Dru Sjodin, a college student kidnapped from a North Dakota mall, the state has been considering sex-offender legislation and Governor Tim Pawlenty has labeled sex offenders "his number public safety issue." In this well-done editorial, the Minnesota Star-Tribune highlights the problem with such an approach to criminal justice policy-making:
Not every tragedy can be prevented by legislation. Not every crime is reason to revamp the criminal code. These are lessons Minnesota leaders should take to heart as they think about how to handle Minnesota's sex offenders. Though the topic sits near the top of this session's agenda, it's not at all clear that any of the various "reforms" so far proposed would actually enhance public safety.
It's easy to see why state leaders are now so keen to crank up sentences for sex crimes, They are properly horrified by the 2003 kidnapping and murder of student Dru Sjodin and the subsequent arrest of a just-released repeat sex offender for the crime. When constituents get riled about a particular crime, lawmakers scramble to toughen penalties.
It's a natural impulse, and this session has given rise to at least two proposals for cracking down on sex offenders: Gov. Tim Pawlenty's plan to require "indeterminate" prison terms for all sex offenders and a bid by the state's Sentencing Guidelines Commission to stretch sentences for all sex crimes and reserve indefinite terms only for serious repeaters. Both plans call for a parole board to decide whether and when inmates can be released.
Reviving the parole board is indeed appealing -- so long as it's empowered to consider all inmates' fates. The move would likely be unnecessary if the Sentencing Guidelines Commission, which replaced the board in 1982, were left alone to fulfill its term-setting charge. But the legislative habit of tinkering with sentence lengths has hobbled the commission's ability to assure a fair system of punishment -- thereby raising doubts about whether all wrongdoers are ending up where they should. In fact, it seems likely that many Minnesotans would agree that too many prison beds are now filled by offenders who could more readily be helped and held to account in some other venue....
Lawmakers should be skeptical of all proposals to revamp Minnesota's approach to managing sex offenders. After all, it could very well be that the current system generally works very well -- so long as people follow the rules. The heartbreak of Sjodin's murder -- a crime for which Alfonso Rodriguez Jr. stands accused -- can't be attributed to a flaw in state law.... This isn't to say that state sex-crime laws couldn't benefit from fine-tuning. But it's simply incorrect to blame Sjodin's death on feeble state statutes. Fault is more properly placed on a moment of misjudgment, most certainly related to cost-saving pressures within state departments. It could be that the smartest thing lawmakers can do this year is to assure that the programs charged with handling sex offenders have everything they need to perform well.
Sunday, January 02, 2005
Sunday's stimulating sentencing stories
After reading about all the bowl games in the sports pages — how 'bout that Rose Bowl — there are a number of thought-provoking articles in today's newspapers:
- Emily Bazelon has this interesting essay entitled "Sentencing by the Numbers" in the New York Times Magazine, which thoughtfully discusses Virginia's fascinating and controversial risk-assessment sentencing that encourage "judges to sentence nonviolent offenders the way insurance agents write policies, based on a short list of factors with a proven relationship to future risk." (As detailed here, the Federal Sentencing Reporter recently devoted a full issue to risk assessment, and Grits for Breakfast here has some thoughtful comments on the Times article.)
- This article thoughtfully reviews the state of the death penalty in Louisiana, as well as nationwide death penalty developments in 2004. I was surprised and intrigued to learn that Louisiana has not executed anyone since 2001 and that "Orleans Parish counted its seventh year without a single death sentence, despite ample opportunity [because the local DA seeks the death penalty in every first-degree murder case] and a high murder rate." UPDATE: And, thanks to TalkLeft here, I see that the Washington Post has this editorial applauding the recent declines in the use of the death penalty.
And, thanks to How Appealing, from South Carolina we get this article about the juvenile death penalty in that state, as well as a set of companion stories (linked here), which details the potential impact of the Supreme Court's coming constitutional ruling in Roper on the juvenile death penalty (background here and here).
January 2, 2005 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack
Thursday, December 30, 2004
Another way to be punished without conviction
The Blakely ruling at its core seems sound to me because it will generally prevent persons from being punished for crimes for which they were not convicted (which is a not-uncommon practice under the existing federal guidelines). But this interesting article from Utah shows that, even after Blakely, there are still some ways persons can be punished for unconvicted conduct.
The article reports on a decision by the Utah Board of Pardons and Parole to keep a man in jail for armed robbery after DNA evidence linked him to a series of rapes:
Some legal observers say the case of Rudy Michael Romero, 40, sets a dangerous precedent, because Romero is effectively being held in prison on an indeterminate sentence for crimes for which he was never convicted.
Romero was sentenced to five years to life for aggravated robbery, and was scheduled to be paroled July 27 after serving 10 years of his sentence. But the parole board rescinded the date after learning June 22 he had been implicated in five rapes committed in the early 1990s after the crime lab matched his DNA with preserved evidence.
Romero has no known sexual-assault convictions and wasn't implicated in the cases until the state crime lab began to take saliva samples from prison convicts to match against DNA evidence in unsolved crimes. However, Romero cannot be tried for the Jordan River rapes because the four-year-statute of limitations has expired.
The article also notes that "according to state law, the board's decisions are absolute and cannot be appealed." However, in a post-Blakely world, it will be interesting to see if courts might be more willing to intervene in a decision of this sort than in the past.