Friday, March 02, 2007

Does Lowe deserve a lower sentence?

Over at Volokh, Jonathan Alder has this effective account of State v. Lowe, the Ohio Supreme Court's recent decision upholding the constitutionality of the state's prohibition on incest as applied to consensual sexual relations between a step-father and his adult step-daughter.  How Appealing has had a lot of prior coverage of the case here and here.

The case has understandibly garnered attention because of the conviction itself raises an interesting due process liberty issue.  But, after reading the case, I could not help but wonder about whether the not-minor sentence imposed might ground a different kind of legal challenge.  Defendant Lowe, after pleading no contest, received a sentence of "120 days of incarceration and three years of community control [and was also classified] as a sexually oriented offender."  Though perhaps there were some unstated aggravating facts, this seems to me to be pretty harsh sentence for consensual sexual relations between two willing adults.

March 2, 2007 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Thursday, March 01, 2007

How's my (sex) driving?

Thanks to this post at TalkLeft, I see that Ohio has a new bill to require the worst sex offenders "to drive cars with a special license plate denoting their offense."  As this article details, the parents of a child victim are pushing the bill and have big aspirations: "'We want this to go national,' Mark Jackson said. 'They're not just in Ohio, they're everywhere.'"

As share Jeralyn's instinct that this is "just another shaming punishment and one that will have no effect on the number of sex offenses."  Moreover, I would hope that any license pate scheme would start with drunk driving before sex offenses.  Though I have not seen any detailed studies, my gut tells me that a drunk-diving license plate system could be much more effective in the promotion of public safety than a sex-offender license plate system.

Some related posts:

March 1, 2007 in Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Monday, February 26, 2007

Starting to smell the residency restriction coffee

According to this USA Today article, some (but not all) state officiasl are starting to realize that common sense needs to temper broad laws seeking to banish all sex offenders from communities.  Here are snippets from an article entited, "Sex-offender residency laws get second look," which also has this accompanying table:

Oklahoma state Rep. Lucky Lamons was a police officer for 22 years.  He calls himself a "lock-'em-up kind of guy." Yet Lamons wants to loosen his state's law that bans registered sex offenders from living within 2,000 feet of a school or day care center.  He says it forces many offenders to live in rural areas where they are difficult for authorities to monitor.  Also, he says, it does not differentiate between real predators and the type of men he recalls arresting for urinating in public, a sex offense in Oklahoma.  "We need to focus on people we're afraid of, not mad at," says Lamons, a Tulsa Democrat who wants the rules to focus more on high-risk offenders.

Lamons is among a growing number of officials who want to ease the "not-in-my-backyard" policies that communities are using to try to control sex offenders.  In the past decade, 27 states and hundreds of cities have reacted to public fear of sex crimes against children by passing residency restrictions that, in some cases, have the effect of barring sex offenders from large parts of cities. They can't live in most of downtown Tulsa, Atlanta or Des Moines, for example, because of overlapping exclusion zones around schools and day care centers.  Now a backlash is brewing.

Several states, including Iowa, Oklahoma and Georgia, are considering changes in residency laws that have led some sex offenders to go underground.  Such offenders either have not registered with local police as the laws require or they have given fake addresses.  Many complain they cannot find a place to live legally.  The push to ease residency restrictions has support from victims' advocates, prosecutors and police who say they spend too much time investigating potential violations.

They're battling a mountain of momentum, however, because residency restrictions remain popular. New or expanded ones have been proposed in 20 states this year. Some legislators are reluctant to pare back restrictions they passed only recently.  "We ought to give it time to work," says state Rep. Jerry Keen, author of Georgia's law, passed last year, which bans sex offenders from living, working or loitering within 1,000 feet of where kids gather.  Keen, Republican majority leader of the House, says Georgia's rules put children's safety before the convenience of sex offenders.

Some related posts:

February 26, 2007 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Thursday, February 15, 2007

The devil's in the details of GPS tracking of sex offenders

This AP article from Wisconsin highlights some administrative realities and challenges of a new law calling for tracking sex offenders after release using GPS systems.  Here are snippets:

Electronic tracking for Wisconsin's worst sex offenders — required under a law signed by Gov. Jim Doyle less than a year ago — would be dramatically scaled back under his two-year budget proposal. Doyle's budget, unveiled to lawmakers Tuesday night, would require child molesters and sexually violent offenders to wear global positioning bracelets only while they're on supervised release or parole.  That's a significant step back from the law Doyle, a Democrat, signed in May to set up GPS tracking until the offender died or was too feeble to pose a threat.

The Republican-sponsored law is due to take effect in July.  State Rep. Scott Suder, R-Abbotsford, its main author, said he was shocked at Doyle's changes.  He accused the governor of going back on his word. "This, in essence, takes away most of our ability to track these monsters. I'm left with my jaw wide open," Suder said Wednesday. "He signed the bill. He highlighted the bill throughout his campaign. Now he is nothing short of gutting the bill. I find it appalling."...

Doyle hailed the measure the day he signed it, saying it would help police know where offenders are at any moment. But questions have lingered about both the law's constitutionality and cost.  Three University of Wisconsin-Madison law professors issued an opinion earlier this month saying the law is unconstitutional because it amounts to extra punishment and the government can't submit someone no longer under its supervision to tracking.  The Corrections Department requested about $24 million and nearly 235 new positions to implement the law over the next two years. Doyle's budget proposal cuts the funding to $11 million and 122 positions.

Some related posts:

February 15, 2007 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Wednesday, February 07, 2007

The state of state criminal justice legislation

Thanks to Thinking About Corrections, I see that The National Conference of State Legislatures has published this interesting report providing a "summary of selected, significant state criminal justice, juvenile justice, victim rights and related legislation in 2006."  Here is its first paragraph:

State crime legislation in 2006 prominently included mandatory minimum sentencing laws for sex offenders who victimize children, as well as new policies to restrict and watch them in the community.  State actions last year also continued to expand DNA databases, including for certain misdemeanor convictions and arrestees. Other laws addressed innocence, refined policy for drug offenses, and facilitated successful reentry of offenders from prison to communities.

February 7, 2007 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Monday, February 05, 2007

The need for sex offender nuance

Thoughtful critics of draconian sex offender restrictions stress that broad residency restrictions often harmfully fail to distinguish truly dangerous repeat ex-offenders from minor offenders.  For this reason, I a quite intrigued by this post at Sex Offender Issues reporting on a new sex offender bill: HR-291 — Safe NOW Act of 2007.  The bill purports to "establish a National Sex Offender Risk Classification Task Force to create guidelines for the establishment of a risk-based sex offender classification system for use in sex offender registries."

I do not know anything more about this bill, but it would seem to be the type of legislation that anyone interested in evidence-based sentencing — or concerned about the extremes of our modern sex offender panic — ought to support.

February 5, 2007 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Tuesday, January 30, 2007

Sex offender news and notes

Corey Yung's blog Sex Crimes is looking great after a redesign and the additional of particularly a nice blog roll.  Corey spotlights the blog  Sex Offender Issues, where there are a lot of new interesting stories, and he inquires about other sex offender blogs or advocacy sites that should be on his blogroll.  Help him out readers.

On the topic, Steven Erickson at Crime & Consequences has this strong post on the "Promise and Pitfalls of Sex Offender Research."  Here is how it starts and ends:

[T]here's much talk about sex offenders but a lack of good science. One of the most discussed areas in terms of sex offenders is risk of recidivism.  While some say recidivism risk is relatively low among sex offenders, others disagree and praise the severe civil restrictions mandated for many sex offenders. Where does the truth lie?  Like so many things in life, it's a mixed bag....

Two [key] points: First, there's much heterogeneity within the sex offender population.  What is true for offender A may not be true for offender B.  It's easy to condemn all sex offenders -- their crimes are terrible -- but malice means being unrighteously spiteful. A just society is just in its judgments and punishments; not all sex offenders deserve the worst punishments.  Second, we desperately need better studies that examine recidivism risk over the long haul and can give us truly some understanding of whether sex offender treatment is effective.

January 30, 2007 in Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Monday, January 29, 2007

New article on residency restrictions

Corey Yung, who runs the great Sex Crimes blog, has an article on sex offender residency restrictions up at SSRN.  The article, available here, is entitled "Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders."  Corey has this blog post about the article, and here is the abstract:

Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders.  Sixteen states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live. In this article, I trace these new laws to historical practices of banishment in Western societies.  I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed "internal exile." Internal exile is an uncommon practice in the West and within the United States. The advent of exclusion zones for sex offenders is a development that could fundamentally alter basic principles of the American criminal legal system.

Ultimately, I conclude that the best policy alternative for tailoring sex offender policy to the nature of the problem includes a move to individualization in sex offender sentencing; provisions for judges to have full access to relevant clinical, actuarial, and social science data about sex offenders; and allowing judges a full menu of sentencing options.  These reforms will avoid the worst effects of residency restriction approaches while being substantially more effective in the fight against sex crimes.

As Larry Solum might say, "Download it while its hot!"

January 29, 2007 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, January 24, 2007

ESPN effectively covers Genarlow Wilson's sad saga

Genarlow_etick_skirm As of this writing, the front page of features this lengthy article on the Genarlow Wilson case from Georgia (which I blogged about at length last month).  The piece is entitled "Outrageous Injustice" and carries this sub-heading: "Genarlow Wilson, honor student and football star, had consensual sex with a fellow teenager. What happened to him next was a crime." 

There are many intriguing facets and new details in this major article on Genarlow Wilson (and also many moving pictures of Wilson in prison).  Here's is one notable passage:

No one involved believes Wilson should be in jail for 10 years.  The prosecutors don't.  The [Georgia] Supreme Court doesn't.  The legislature doesn't.  The 15-year-old "victim" doesn't.  The forewoman of the jury doesn't.  Privately, even prison officials don't.

Yet no one will do anything to free him, passing responsibility around like a hot potato.  The prosecutors say they were just doing their job.  The Supreme Court says it couldn't free him because the state legislature decreed the new law didn't apply to old cases, even though this case was the entire reason the new law was passed....

The legislature still could pass a new law that would secure Wilson's freedom, so [Wilson's  lawyer, BJ] Bernstein is pushing hard for that.  One such bipartisan bill was introduced this week, pushed by state Sens. Emanuel Jones, Dan Weber and Kasim Reed.  This is Wilson's best shot.  "I understand the injustice in the justice system," Jones says, "and when I heard about Genarlow and started studying what had happened, I said, 'This is a wrong that must be righted.' Everyone agrees that justice is not being served."

Genarlow03 Here is another passage that spotlights the reasons why prosecutors are resisting a resolution that would secure Wilson his freedom:

Every story needs a villain, and in this one, the villain's hat has been placed squarely on the head of [Eddie] Barker, the prosecutor and a former college baseball player.  Barker doesn't write the laws in the books to the left of his desk.  He simply punishes those who break them.

"We didn't want him to get the 10 years," he says.  "We understand there's an element out there scratching their heads, saying, 'How does a kid get 10 years under these facts?' "  In Barker's eyes, Wilson should have taken the same plea agreement as the others. Maintaining innocence in the face of the crushing wheels of justice is the ultimate act of vanity, he believes....

Barker is quick to point out that he offered Wilson a plea after he'd been found guilty — the first time he has ever done that.  Of course, the plea was the same five years he'd offered before the trial — not taking into account the rape acquittal.  Barker thinks five years is fair for receiving oral sex from a schoolmate. None of the other defendants insisted on a jury trial. Wilson did. He rolled the dice, and he lost.  The others, he says, "took their medicine."...

The folks in Douglas County are playing god with Genarlow Wilson's life.  "We can set aside his sentence," Barker says.  "Legally, it's still possible for us to set aside his sentence and give him a new sentence to a lesser charge.  But it's up to us.  He has no control over it."  The position of Barker and the district attorney, McDade, who refused to comment, is that Wilson is guilty under the law and there is no room for mercy, though the facts seem to say they simply chose not to give it to Wilson.

At the same time this trial was under way, a local high school teacher, a white female, was found guilty of having a sexual relationship with a student — a true case of child molestation.  The teacher received 90 days.  Wilson received 3,650 days.  Now, if Wilson wants a shot at getting out, he must throw himself at the prosecutors' feet and ask for mercy, which he might or might not receive.  Joseph Heller would love this. If Wilson would only admit to being a child molester, he could stop receiving the punishment of one.  Maybe.  "Well," Barker says, "the one person who can change things at this point is Genarlow. The ball's in his court."

Related posts on the Genarlow Wilson case:

January 24, 2007 in Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Tuesday, January 23, 2007

An interlude for sex and death

I could continue to write non-stop about Cunningham and Claiborne and Rita after all of Monday's action (details here and here).  But, not wanting to forget about all the other significant sentencing action these days, here is a brief interlude for some sex and death:

Sex: Corey Young has lots of great stuff at Sex Crimes on a range of topics, including interest posts on developments in New Jersey and a controversy about whether Dakota Fanning's new edgy movie, Hounddog, might qualify as child pornography.  This latter topic is also smartly covered here by Ann Althouse (who has been in especially fine form lately).

Death:  As usual, Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project all have lots of coverage of lots of different capital developments.  Of particular note, as detailed here, Justice Scalia granted a stay to a Texas death row inmate due to be executed later this month.

January 23, 2007 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Thursday, January 18, 2007

First(?) test of the new federal crime for failing to register as a sex offender

A helpful reporter has sent me a copy of a recent district court opinion, US v. Madera, No. 6:06-cr-202-Orl-1SKRS (M.D. Fla. Jan. 16, 2007) (download below), which is the first ruling I have seen addressing constitutional challenges to certain provisions of the the Adam Walsh Child Protection and Safety Act enacted by Congress last summer.

The ruling in Madera covers a lot of constitutional ground in the course of rejecting a motion to dismiss brought by a defendant "charged in an indictmcnt with one count of failing to register as a sex offender in violation of 18 U.S.C. 2250(a) and the Walsh Act."  Based on my quick read, I am not convinced the Madera opinion properly unpacks all the complicated issues raised here, and it seems inevitable that many courts may have to struggle with these issues before long.

Download Madera.pdf

UPDATE: Sex Crimes now has this discussion of Madera that zeroes in on the defendant's Commerce Clause challenge, with I see as just one of a dozen complicated aspects of the ruling.

January 18, 2007 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, January 17, 2007

Another (ineffective?) sex offender restriction

I have not yet seen any evidence that sex offender restrictions are effective; many say, as detailed here, that they actually harm public safety.  Nevertheless, this article from my local paper details that a town in central Ohio is considering a new twist on sex offender restrictions:

Upper Arlington is proposing tough restrictions on sexual offenders that would limit not only where they can live, but also where they can work.  State law already forbids sex offenders from living within 1,000 feet of a school.  And several cities in Franklin County, including Hilliard and Reynoldsburg, have passed or are considering additional prohibitions. But none has restrictions on where offenders may work.

"I'm not aware of an employment restriction anywhere in the state. As far as I know this is a first," said David Singleton, executive director of the Ohio Justice and Policy Center, a nonprofit, public-interest law firm based in Cincinnati.

Some related posts:

UPDATE:  Over here at Sex Crimes, Corey Yung has a thoughtful and nuanced post about work restrictions for sex offenders.  He also has a lot of other interesting new posts on topics ranging from the Duke case to criminal adultry laws.

January 17, 2007 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Monday, January 15, 2007

Another effect of extreme mandatory sentencing laws

A reader sent me this disconcerting story from ABC News discussing a recent case in which a 16-year-old Phoenix boy was arrested for possession of computer child porn and threatened with a minimum of 90 years in prison under Arizona's severe child porn laws.  As the story explains, according to an array of experts, the teenager was likely innocent, but he felt compelled to plead guilty to a (peculiar) lesser charge rather than face the risk of a unavoidably harsh mandatory sentence if he was wrongfully convicted at trial.

Many have long noted and justifiably lamented the extreme bargaining power that severe mandatory sentences can give to prosecutors.  This teenager's tale — and a similar case from Arizona in which a respected teacher received a 200-year prison sentence for possessing computer child pornography (basics here, commentary here) in part because he would not cut a deal — spotlight the particular injustices that can flow from extreme mandatory sentencing terms for an array of sex-related offenses.

January 15, 2007 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Thursday, January 04, 2007

NPR story about elderly sex offender prisoners

Yesterday's broadcast of NPR's "All Things Considered" included this fascinating long segment entitled "Sex Offenders Fill Geriatric Wards of U.S. Prisons."  Here is how the story begins:

In the geriatric ward of Pennsylvania's Laurel Highlands Prison, the floors are squeaky clean linoleum. The walls are painted in dull pastels. Dozens of inmates in hospital gowns line the hallways in wheelchairs, doing absolutely nothing.

Almost half of these men are sex offenders. They were once simply "dirty old men." Now, sex offenders in their 60s, 70s and 80s — like the men here — are a growing problem in the nation's prisons. Experts say it's the only crime that offenders are more likely to repeat with age. The result has been an explosion in the number of elderly men behind bars.

January 4, 2007 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Saturday, December 30, 2006

Strong editorial against residency restrictions

This morning's New York Times brings this editorial weighing in against sex offender residency restrictions.  Here are some highlights:

Of all the places that sexual predators could end up after prison, the worst is out of sight, away from the scrutiny and treatment that could prevent them from committing new crimes.  But communities around the country are taking that risk, with zoning laws that banish pedophiles to the literal edges of society.

There is a powerful and wholly understandable impulse behind laws that forbid sex offenders to live within certain distances of schools, day care centers and other places that children gather.  Scores of states and municipalities have created such buffer zones, then continued adding layer upon layer to the enforcement blanket....

The unintended consequence is that offenders have been dispersed to rural nowhere zones, where they are much harder to track....  Many offenders respond by going underground. In Iowa, the number of registered sex offenders who went missing soared after the state passed a law forbidding offenders to live within 2,000 feet of a school or day care center.  The county prosecutors' association has urged that the law be repealed, for the simple reasons that it drives offenders out of sight, requires "the huge draining of scant law enforcement resources" and doesn't provide the protection intended....

The problem with residency restrictions is that they fulfill an emotional need but not a rational one.  It's in everyone's interest for registered sex offenders to lead stable lives, near the watchful eyes of family and law enforcement and regular psychiatric treatment.  Exile by zoning threatens to create just the opposite phenomenon — a subpopulation of unhinged nomads off their meds with no fixed address and no one keeping tabs on them.  This may satisfy many a town's thirst for retributive justice, but as a sensible law enforcement policy designed to make children safer, it smacks of thoughtlessness and failure.

Some related posts:

December 30, 2006 in Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Sunday, December 24, 2006

Ohio sentencing stories at the heart of it all

For two decades, the Ohio Division of Travel and Tourism has used the slogan, "Ohio, The Heart of It All" to promote the state.  Two articles today on Buckeye state sentencing developments shows how true this slogan is:

Lethal injection litigation and new "get-tougher" sex legislation essentially defines the major sentencing developments of 2006.  At least in the arena of sentencing, Ohio truly is at the heart of it all.

December 24, 2006 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, December 21, 2006

Virginia internet task force calls for tougher sentences

As detailed in articles here and here, yesterday a group led by Virginia's attorney general studying how to keep the internet safe for kids, the Youth Internet Safety Task Force, produced "a 100-page report that included 25 specific proposals from law-enforcement officials, technology experts, parents and educators who met during the past six months."  The full report can be accessed at this link, and here are some of its law enforcement recommendations:

1. Amend Virginia Code §18.2-374.1 to include statutory and mandatory minimum sentences for production and financing of child pornography.

2. Amend Virginia Code §18.2-374.3 to include statutory and mandatory minimum sentences for online solicitation of children. These mandatory minimums should be bifurcated for offenses involving child victims below 15 years of age and those involving children 15 to 18 years of age.

3. Amend Virginia Code §18.2-374.3 to prohibit sexual solicitations of children ages 15-18. The age of the victim and the age of the offender in relation to the victim should be the determining factors for mandatory minimum sentences.

December 21, 2006 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, December 20, 2006

Another editorial urging release of Genarlow Wilson

Following up yesterday's editorial in the Atlanta Journal-Constitution here which said "legal system must stop offering Genarlow Wilson condolences and start giving him justice," today the Macon Telegraph has this editorial which concludes with this call for action:

Genarlow Wilson should not be in prison; what consenting teenagers do sexually should not send them to prison for 10 years.  The Legislature, and the people of Georgia, can help right that wrong.

Meanwhile, posts at Legal Fiction and The Debate Link spotlight why concerns about the impact of race in this case should not be quickly discounted.  They point to this article in Atlanta Magazine, which notes two white defendants from the same jurisdiction that got a month or less imprisonment for sexual misdeeds more serious than what got Genarlow Wilson 10 years in prison.

Related posts on the Genarlow Wilson case:

December 20, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, December 19, 2006

More on the pros and cons of GPS tracking has this interesting new article entitled, "Tracking sex offenders with GPS."  Here are is how it begins:

It's not every Election Day that voters can cast a ballot to banish thousands of people to the hinterlands, but Californians did just that last month, and eagerly so.  Seventy percent voted to ban registered sex offenders from living within 2,000 feet of a school or park, effectively outlawing them from many residential areas in the state.  Known as "Jessica's Law," after a 9-year-old Florida girl who was kidnapped from her home, sexually abused and murdered by a registered sex offender, the California proposition swept in a myriad of punitive changes.  The crackdown on residency applies to all registered sex offenders, including those convicted of a misdemeanor, such as indecent exposure.

Most notably, felony sex offenders will now be tracked 24 hours a day, seven days a week, via GPS (global positioning system), even after they're out of prison and off parole.  The state senator and advocates behind the proposition call the GPS devices a necessary and vital tool to control sexual criminals.  The California measure makes no distinction between habitual offenders at high risk of striking again, worth having their every move tracked electronically once they're out of prison, and the felons who have served their time and present no apparent threat to public safety in the eyes of the court.  Just put a GPS device on all of them, voters said, forever....

But as states rush to impose harsher penalties on sex criminals, critics -- legal and criminal analysts, and even some victims of sex crimes themselves -- state that the punitive new laws violate civil liberties and are ineffective.  And while a technological fix like fastening GPS devices to former felons may make the public feel safer, it will do little to protect the children who are the victims of most sex crimes.

Some recent related posts:

December 19, 2006 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

The nuance in my provocation

My intentionally provocative questions about the Georgia case here has provoked interesting comments here and these three posts from Eugene Volokh:

Let me just add a bit more nuance to ensure my points are understood:

1.  I am not accusing anyone of intentional racism or suggesting anyone made a consciously racist decision in this case.  Rather, my chief point was to get people thinking about whether events would have played out the same way had Genarlow Wilson been white.  Consider the contrast to Mark Foley. Arguably, his predatory acts were worse given his position of power and his purported maturity.  Did anyone even suggest 10 years in prison for him?  Why not?

2.  I do not mean in any way to suggest that our country should not criminalize some consensual behaviors.  Rather, I just continue to be troubled that libertarians and others who emphasize the importance of freedom in other areas (e.g., freedom of speech) do not get aghast when the state locks citizens up in small cages for extraordinarily long periods of time when their behavior does not clearly justify locking them up this way.

December 19, 2006 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Provocative questions about Georgia sentencing injustice

19georgia Thanks to How Appealing, I see that both the New York Times here and the Atlanta Journal-Constitution here are discussing Genarlow Wilson (pictured here), the young Georgia man who was "sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year's Eve party" when he was 17 years old.  The Times article details that Mr. Wilson is an "honor student and the first homecoming king at Douglas County High School" and that he has already served nearly two years in prison.  The Atlanta Journal-Constitution rightly says in an editorial that the "legal system must stop offering Genarlow Wilson condolences and start giving him justice."

Upon learning more about this case, I cannot help but ask a number of provocative questions:

1.  Had Wilson been white, would he even had been charged with this offense, let alone sentenced to 10 years imprisonment?

2.  Had Wilson been white, would the Georgia legislature have made its subsequent change in the law retroactive to give Wilson the more sensible justice all others will now receive?

3.  Had Wilson committed his offense in other state, could he have even been sentenced to the 2 years he has already served, let alone received the 10-year prison term he is still serving?

4.  Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?

5.  Can anyone make a reasoned argument for keeping this honor student in prison any longer?

Some prior posts posing additional questions:

UPDATES:  I add nuance to my questions in this post, and I have now discovered this website asking "Why is Genarlow Wilson in Prison??"

December 19, 2006 in Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Monday, December 18, 2006

Why isn't the severe Georgia sentence constitutionally problematic?

Eugene Volokh's extended riff here on the extreme consensual oral sex sentence for a teenager in Georgia (discussed here and with comments ablaze) includes Eugene's assertion that he doesn't "think there's any Cruel and Unusual Punishment Clause problem here."  I have been reflecting on this issue after this post, and I have come to wonder what arguments could be made, given the facts we know, that the Georgia teen's fate is not "cruel and unusual."   

Again, the key facts are that Georgia Legislature has now said that the defendant's type of behavior should be treated as a misdemeanor, and many studies suggest that the defendant's sexual behavior is quite common among teenagers.  Yet prosecutions for consensual oral sex between teenagers is extremely rare, and I doubt anyone in recent decades has every received more than a year in prison for such an offense, let alone ten years.  Why don't these facts alone make out at least a plausible case of the infliction of a "cruel and unusual punishment"?

Related posts:

December 18, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, December 12, 2006

Opposition to Iowa's residency restrictions

Among lots of interesting new posts at Sex Crimes is this item noting opposition to Iowa's sex offender residency restrictions from a "group of county prosecutors, county sheriffs and victim advocates."  As detailed in press reports here and here, this group is stressing that the residency restrictions are not working.  Here's more from this article in the Quad City Times:

A coalition of law-enforcement and victim-advocacy groups came together Monday to ask the Legislature to throw out the state’s 2,000-foot residency restriction on sex offenders. "Good public policy needs to protect children," Corwin Ritchie, executive director of the Iowa County Attorneys Association, said at a Statehouse news conference. "This residency requirement doesn’t do that."...

The problem with the current law, Ritchie said, is that it requires tremendous time and effort to enforce but does little to protect children from sexual abuse.  "We find no correlation between where an offender resides, or sleeps, and whether that offender might re-offend," he said.

Clay County Sheriff Randy Krukow, president of the sheriffs’ group, said the 2,000-foot law may make children less safe, because its restrictions force offenders to relocate, sometimes without telling law enforcement where they’ve gone.  "Before this law went into effect, I had 99 percent of (sex offenders) registered," Krukow said. Now he devotes three members of his 10-person staff to tracking where sex offenders are living. He said that takes resources away from other areas, such as drug enforcement.

The coalition cites figures from the Iowa Department of Public Safety showing that the number of unaccounted-for sex offenders has more than doubled since the law took effect, rising from 142 to 346.

Some related posts on residency restrictions:

December 12, 2006 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Sunday, December 03, 2006

A tough question after finding kiddie porn

A few weeks ago, Randy Cohen, who writes "The Ethicist" column for the New York Times Magazine, called me to get a better understanding of the sentencing dynamics surrounding the possession of child pornography.  This week's column has the question that prompted his call: 

I am an Internet technician.  While installing software on my company's computer network, I happened on a lot of pornographic pictures in the president's personal directory, including some of young children — clearly less than 18, possibly early teens.  It is probably illegal and is absolutely immoral.  Must I call the police?  I think so, but I need my job.  Signed S.M.N.

Randy Cohen was kind enough to quote me in his answer, though I am not entirely sure I agree with Cohen's ethical judgment.  I am sure, however, that this is a tough question, and I am interested in reader reactions.

December 3, 2006 in Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Monday, November 27, 2006

Intriguing child porn guideline ruling from Ninth Circuit

The Ninth Circuit today in US v. Kuchinski, No. 05-30607 (9th Cir. Nov. 27, 2006) (available here), has an interesting discussion of various post-PROTECT Act sex offender sentencing issues.  Parts of the opinion ought to be especially interesting to computer crime gurus.  Consider these paragraphs toward the end of the opinion:

Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images.  To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control....

Kuchinski makes many daedalian arguments about his conviction and sentence. We reject most of them, but we do agree that he was sentenced in error when child pornography images in his cache files, which he neither controlled nor even knew the existence of, were used to calculate his Guideline range.

UPDATE:  Orin Kerr comments on Kuchinski here.

November 27, 2006 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, November 22, 2006

So many sex offender stories

The interesting sex offender stories never seem to slow down.  First, as covered well by Sex Crimes and How Appealing, New York's highest court has held that sex offenders could not be sent to mental institutions after release from prison under a New York rule.  Second, the Washington Post has this front-page story, entitled "Some Curbs on Sex Offenders Called Ineffective, Inhumane," about sex offender residency restrictions.  Here is how it starts:

As convicted sex offenders go, they seem to pose little danger.  One is 100 years old.  Another can barely walk and is in the late stages of Alzheimer's disease. Another is dying of heart disease in a nursing home. Yet, under a new Georgia law, thousands of registered sex offenders, even the old and feeble, could be pushed from their homes and hospices.

"He doesn't really know anything about it," said Ruby Anderson, 77, whose husband was convicted of having sex with a minor in 1997 and, at 81, no longer recognizes members of his family because of Alzheimer's disease. "The trouble is, I just don't know where we can go."

As states around the country have sought in recent years to control the whereabouts of convicted sex offenders, Georgia's law stands out as one of the toughest, a testament to the daunting public fears regarding children's safety.  The roughly 10,000 sex offenders living in Georgia have been forbidden to live within 1,000 feet of a school, playground, church or school bus stop.  Taken together, the prohibitions place nearly all the homes in some counties off-limits -- amounting, in a practical sense, to banishment.

"My intent personally is to make it so onerous on those that are convicted of these offenses . . . they will want to move to another state," Georgia House Majority Leader Jerry Keen (R), who sponsored the bill, told reporters.  Since the law's enactment in July, however, a federal judge, human rights advocates and even some of the sheriff's departments that are supposed to enforce the measure have suggested that the zeal for safety may have gone too far. The residency law applies not only to sexual predators but to all people registered for sexual crimes, including men and women convicted of having underage consensual sex while in high school.

Advocates for the sex offenders say the law is unfair to people who have served their sentences and been deemed rehabilitated.  Many police officers, prosecutors and children's advocates also question whether such measures are effective.  Most predators are mobile, after all, and by upending their lives, the law may make them more likely to commit other offenses, critics say.

November 22, 2006 in Sex Offender Sentencing | Permalink | Comments (26) | TrackBack

Tuesday, November 21, 2006

NPR (and more) on sex offender restrictions

Thanks to a favorite reader, I discovered that NPR's All Things Considered had this notable piece on the impact of sex offender residency restrictions.  The piece covers lots of ground, and here is its set up:

Three sex offenders recently moved into a house in rural Hampden, Me., that is operated by a local charity. A local legislator wants to prevent sex offenders from living together, but the charity argues that giving them a supervised place to live actually helps keep the public safer.

Relatedly, the always interesting Sex Crimes blog has these recent posts of note:

November 21, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Monday, November 20, 2006

Debating sentences for predator offenses

The Roanoke Times has this extended article on sex offense sentencing, which has this set up: "Authorities are trying to toughen the penalties for crimes involving sexual exploitation of children. But some in the legal community wonder whether stricter punishments will solve the problem." Here's more from the start of the story:

John Beckner purchased five years in a federal penitentiary with a $10 money order. 

Beckner had visited an Internet site featuring child pornography.  Over the next six months, the Roanoke man received e-mails hawking the site's wares. Though he made efforts to avoid the Internet, reminders from kept arriving. Finally, Beckner ordered a $10 "preview" video. But was a front for a federal sting.  As soon as Beckner picked up the tape, black government sport utility vehicles were following him. 

Beckner cooperated with investigators and had no criminal record.  Yet a federal judge in Roanoke had no choice but to sentence him to five years in prison, the mandatory minimum. Paul Dull, Beckner's attorney, noted that his client never laid a finger on a child, and his only illegal purchase was from the federal sting. "So how, exactly, is he contributing to this mass problem?" Dull asked.

Beckner's case could become typical as national and state authorities campaign to toughen the penalties for crimes involving sexual exploitation of children, with a definite emphasis on punishment over treatment.

Virginia Attorney General Bob McDonnell wants to look into creating state mandatory sentencing minimums for child pornography possession, akin to the federal law that sent Beckner to prison. "It all has to do with the word 'potential,' " said Roanoke defense attorney Gary Lumsden.  These cases become a balancing act between protecting society from potential molesters "and on the other end of the spectrum, a witch hunt," he said.

November 20, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Saturday, November 18, 2006

Long sentence for prominent cyber-sex offender

As detailed in articles here and here, Brian Doyle, the former deputy press secretary for Homeland Security, was sentenced to five years in Florida state prison for inappropriate e-mails he sent to a deputy who he thought was a 14-year-old girl.  Here are some of the interesting details:

After more than five hours of emotional testimony from Doyle, his friends and family, Polk County Circuit Court Judge J. Dale Durrance handed down the sentence, which includes 10 years of probation and requires Doyle to register as a sex offender....  Much of the defense's witness testimony surrounded around Doyle's rough childhood -- he was the youngest of nine children who lived in poverty with an alcoholic, abusive father who rarely worked.  Doyle has been treated for depression and friends testified they thought he was sinking into a depression again....

But prosecutor Brad Copley told the judge they were not there to judge Doyle's life, they were there to judge the crimes. In one of Doyle's conversations with the deputy he knew as "Ashlynne" he said: "hey it is illegal ... and it would be exciting and forbidden ... you are young -- illegal -- and gorgeous. and it would be great. fun. food, laughter, talk and yes sex." "He knew what he was doing was wrong," Copley said.

Defense attorney Barry H. Helfand asked the judge to spare Doyle the five-year imprisonment and instead allow him to get treatment.  Doyle, who pleaded no contest in the case, originally faced up to 115 years in prison.  Doyle told the judge the worst punishment was having his friends and family in court.  "That's a shame I will carry forever," he said.  Durrance acknowledged Doyle's good deeds, saying, "You've done a lot of good in your lifetime." Under the September plea deal, Doyle could have received only probation. But in the end, Durrance chose not to go with the lesser sentence.

November 18, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Friday, November 17, 2006

Lots of state sex offender sentencing news

Over at the blog Sex Crimes, Corey Rayburn Yung has lots of coverage of interesting state-level developments concerning residency restrictions and other sex offender sanctions.  Here is a list of posts to check out:

November 17, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Friday, November 10, 2006

Is GPS tracking a better way?

I spoke at a sentencing seminar this morning, and the terrific speaker after me reviewed all the reasons why residency restrictions for sex offenders likely endanger, rather than enhance, public safety.  (Astute readers will recall that Iowa's prosecutors, who have the most experience with these laws, came to this conclusion long ago as documented here.)   Beyond the public safety consequences, the California experience with residency restrictions in Proposition 83 (details here and here) spotlights that these laws always engender copious litigation.

But another facet of Proposition 83 may not be quite as bad, though it is sure to also stir up some litigation: GPS tracking of certain offenders.  Thanks to Crime & Consequences, I saw this interesting article at Wired News about GPS monitoring, titled "Attack of the Perv Trackers."  Here are parts of a fine piece:

Just a few years ago, satellite tracking of convicts was a newfangled alternative to house arrest.  Now, the number of American ex-offenders tracked through GPS-equipped ankle bracelets will likely triple to more than 30,000, thanks to the passage of a California ballot measure. California's Proposition 83, which easily passed Tuesday by a margin of 70 percent to 30 percent, requires many convicted sex offenders to be monitored by GPS for life....

At least 11 other states have recently considered GPS tracking legislation, with some inspired by the 2005 murder of a Florida girl, allegedly by a registered sex offender.... But there's a hitch: The ankle bracelets -- usually accompanied by digital-pager-size transmitters -- are hardly criminal-proof.  Convicts can easily cut the bracelets off and run away as their probation officer gets an alarm and tries to contact the local police. For health reasons, the bracelets aren't designed to be permanent.

"GPS will not prevent a crime," said Steve Chapin, CEO of Pro Tech Monitoring, a manufacturer of GPS tracking devices. "It's a crime deterrent. It has proven to be a good tool, but you can't oversell it -- there's no physical barrier that it creates that can prevent a crime." Chapin said his Florida-based company tracks about 10,000 people, and he thinks other companies track a few thousand more. Offenders wear an ankle bracelet -- Chapin said it can be hidden under a sock -- and keep the transmitter nearby. 

There are an estimated 63,000 to 90,000 sex offenders convicted of felonies and misdemeanors in California. According to Chapin, it's possible that about 20,000 of them will need GPS monitoring under the new law.  Chapin expects the state to adopt "active" monitoring, which tracks offenders in real time and sends out alerts if they go somewhere they're not supposed to, such as a school. The alternative is "passive" tracking, which produces reports about where offenders have been, not where they are right now.  Currently, Pro Tech charges $6 to $8 a day for active monitoring, and $4 to $5 a day for passive monitoring, equipment included. At that rate, California can expect to fork out between $80,000 and $160,000 per day to watch its sex offenders.... 

GPS tracking technology allows users to create "geofences" to mark forbidden "hot zones."  The monitoring systems can even be programmed so that alarms only go off if an offender spends a certain amount of time in an outlawed area instead of, say, simply driving through it at high speed on the way to somewhere else.

GPS tracking has its critics. The American Civil Liberties Union has been skeptical, although at times intrigued by an alternative to incarceration.... [A] new study of more than 75,000 Florida convicts found that both GPS monitoring and old-fashioned, house-arrest electronic monitoring (the kind Martha Stewart endured) made convicts more likely to toe the line.  "Our conclusion is that it does help protect public safety, that these offenders are less likely to get in trouble," said study co-author Kathy Padgett of Florida State University.

November 10, 2006 in Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Thursday, November 09, 2006

More on Proposition 83 in California

I suspect that the development and application of California's Proposition 83, the ballot measure that passed overwhelmingly and seeks to crack down on sex offenders, will be a great story to watch.  As noted here, one provision has already been enjoined, and the new Sex Crimes blog has these posts covering all the developments:

In addition, this post at Crime & Consequences reminds me of an intriguing wrinkle: the newly elected Attorney General is former California Governor Jerry Brown.  This newspaper story provides some background on new AG Brown, aka "Governor Moonbeam."

November 9, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, November 08, 2006

California's new sex offender law enjoined

As detailed in articles here and here, a federal judge in California today "blocked enforcement of key provisions of Proposition 83, the ballot measure passed overwhelmingly by voters that's meant to crack down on sex offenders, including limiting where they may live."  Here are some more details:

U.S. District Judge Susan Illston, ruling on a lawsuit filed a day after the election, said the measure "is punitive by design and effect" and likely unconstitutional.  The so-called Jessica's Law prohibits registered sex offenders from living within 2,000 feet of a school or park — effectively prohibiting parolees from living in many of California's cities. It also would require lifetime satellite tracking for paroled rapists, child molesters and other felony sex criminals upon their release from prison....

The scope of the initiative's impact largely hinged on whether it would apply retroactively to the state's roughly 90,000 registered sex offenders. Supporters and critics had expected the expanded residency requirements to be challenged in court.  Judge Illston issued a temporary restraining order against the residency requirements of Proposition 83....

John Doe, as the plaintiff was named in court documents, argued that the measure could only apply to sex offenders registered after the law was passed.  Illston did not address whether it could apply to those who registered after Nov. 7. Another unknown is what to do with registered sex offenders who violate the law.  The measure does not add any crimes to the state's criminal statutes. "There are a million questions left open," said Dennis Riordan, the lawyer who filed the lawsuit.

Nathan Barankin, a spokesman for Attorney General Bill Lockyer, said the state would vigorously defend the law. "We won't know the true scope of Prop. 83 until the courts have resolved all the litigation," Barankin said. "Our goal is to make sure those questions get answered as quickly as possible."

Under the measure's language, most suburban and metropolitan areas of the state would be off limits to sex offenders. The proposition, according to the suit, "effectively banishes John Doe from his home and community for a crime he committed, and paid his debt for, long ago."  The suit says the proposition forces the former convict "from the home that he owns with his wife and his community of over 20 years."

It looks like California voters have ensured that the new Sex Crimes blog will have plenty of legal developments to cover and discuss.

UPDATE: Jonathan Soglin at Criminal Appeal has more here on developments in Califonia surrounding Proposition 83, aka Jessica's Law.

November 8, 2006 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Tuesday, October 31, 2006

Can procedural injustice produce substantive justice?

An interesting state sentencing case reported in this article from Utah highlights the uncertain relationship between procedural and substantive sentencing justice.  Here are the basics:

Authorities are investigating whether a controversial Utah judge secretly knocked 10 years off a sex offender's prison sentence.  Third District Judge Leslie Lewis allegedly had an ex parte (one side only) conversation with a defense attorney and subsequently reduced his client's sentence by 10 years without consulting prosecutors....

Defense attorney Roger Kraft said it all began with a bad day he had in Lewis' courtroom on Feb. 10.  Kraft was before Lewis for the sentencing of his client, 46-year-old James Robert Scott, who had pleaded guilty to three counts of sodomy on a child.... Lewis ordered Scott — who had sexually abused a 7-year-old girl — to serve 30 years to life in prison by running three 10-to-life terms consecutively.  Prosecutors had asked for 30 years to life, but a pre-sentence report recommended 15 to life.

Back at his office after the sentencing, Kraft penned a letter to Lewis to vent his frustration.  "It is my job to argue BEFORE the court and not WITH the court," Kraft wrote.  A month later, on March 15, Kraft got a phone call from Lewis, who offered an apology.  "She said she went back and watched the video [of the hearing] and said I was 90 percent correct in my letter," Kraft said.  Kraft said his letter did not ask Lewis to reduce Scott's sentence.  But during their phone conversation, Kraft said he told the judge, "I'm hoping our [courtroom] banter didn't cost my client an additional five or 10 years."  After Kraft reminded her of the stiff sentence, Lewis said, "If I still have jurisdiction, I'm going to change that," according to Kraft. 

Offering to reduce Scott's sentence by 10 years, Lewis promised to send Kraft documentation of the change, he said.  Then Lewis said something that turned Kraft's pleasure to discomfort. ''She said, 'I would appreciate it if you don't discuss this with the prosecutor,' " Kraft recalled.  ''She said it at least two, and maybe three, times.''...

The article continues to explain that Judge Lewis doctored the docket in order to change the defendant's sentence to 20 years' imprisonment without telling anyone, and that the defense attorney reported the change when he found out about it months later.

There are many interesting facets of this case, including the fact that Judge Lewis has gotten in trouble for other courtroom behavior and is facing a retention election.  What may get lost in the commotion, however, is that even the reduced sentence of 20 years was five years longer than what the pre-sentence report recommended.  Though there seems to have been lots of procedural injustice in this case, was substantive justice perhaps ultimately served?

October 31, 2006 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, October 30, 2006

A new blog on legal developments relating to sex offenses

I few weeks ago here, I suggested that any thoughtful lawyer who starts a blog covering sex offender sentencing and residency restrictions could likely become a leading national expert on this emerging legal topic within a matter of months. My claim will now be put to the test as today the Sex Crimes Blog joins the blogosphere.  As detailed in this post, the goals of this new blog are to:

  1. compile news and legal developments about the criminalization and punishment of sex offenses in the United States.
  2. offer legal opinions about developments in the laws regulating and punishing sex crimes.
  3. provide a resource for people doing research and/or writing about sex crimes.

October 30, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

The unintended consequences of residency restrictions

California voters, as noted here, will next week consider Proposition 83, which restricts any registered sex offender from living "within 2,000 feet of any public or private school, or park where children regularly gather."  Today, the Los Angeles Times has this long article discussing some unintended consequnces of Iowa's similar sex offender residency restriction.  Here is a snippet:

[M]uch of urban Iowa is off limits to those whose past includes a sex crime against a minor.  As Californians prepare to vote next week on Proposition 83, which would impose a similar residency ban, Iowa is becoming an example of the unintended consequences of such measures.

Prosecutors, police officials and even victims rights groups say the crackdown has backfired, driving some offenders into rural towns and leaving others grouped at motels, campgrounds, freeway rest stops or on the streets.  Many have simply gone underground, authorities say, with more than twice as many registered sex offenders now considered missing than before the law took effect.

Some recent related posts:

October 30, 2006 in Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Friday, October 27, 2006

Sex offenders as our modern day witches

Norm Pattis at Crime & Federalism has this very strong post about sex offense sentencing which includes astute observation:

Sex offenses are in our time the new witchcraft.  We're as hysterical about these crimes as were the good people of Salem over witches.  And our means of addressing the hysteria is about as effective.

This time of year there is a particular irony in this analogy: next week we have a national holiday focused on kids that will celebrate witches and other scary things.  But, as detailed in articles from New York and Tennessee and Texas and elsewhere all around the country, everyone is trying to keep sex offenders from participating.

October 27, 2006 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Friday, October 20, 2006

The challenges of connecting sex offense reactions and realities

The always terrific Corrections Sentencing has this great post on how jurisdictions have and should respond to sex offenses and sex offenders.  Here are snippets:

At the Friday morning roundtable on sex offender recidivism at the BJS/JRSA conference last week, JRSA Research Director Stan Orchowsky started it off by noting that, of all the gaps between what policymakers do in criminal justice and what we know about offenses, offenders, and how to manage them most effectively, the gap with sex offenses is largest. Then Kim English, the Colorado Statistical Analysis Center director, with the help of very experienced colleagues...described the successful efforts in CO and what the research showed.

[T]he talk on what is effective included no mention of castration (chemical or otherwise, neither of which actually guarantee success ending sexual assaults, which Kim described in ways I won't detail in a family blog), mandatory minimums (victims and their families will file fewer charges because the offenders are overwhelmingly loved ones), or housing restrictions (let's create gypsy bands of homeless perverts with no incentive to stay straight, why don't we?).  No, what they described was insightful and practiced, with nary an ounce of touchy-feely, but it took work, patience, vigilance, and tolerance of inevitable human failure (ours, not the sex offender's).

Some recent related posts:

October 20, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, October 19, 2006

A new legal attack against local sex offender residency restrictions

Among the many interesting aspects of the new boom in sex offender residency restrictions is their local flavor: more recent sex offender residency restrictions have been enacted by localities than by states.  (Meanwhile, the federal government has not enacted or even considered seriously any national residency restrictions, despite doing a lot of recent work on sex offender sentencing.)

Intriguingly, as detailed in this article, the New Jersey state Public Defender's Office is bringing a new legal attack on the power of localities to create sex offender residency restrictions in the Garden State.  Here are some details:

In a bid to prevent a 76-year-old sex offender and his mentally ill wife from being forced out of their home a week from today, the state Public Defender's Office filed a lawsuit yesterday contending municipalities have no power to establish "pedophile-free zones." 

If successful, the lawsuit could invalidate dozens of local ordinances restricting where sex offenders may live.  Alpha, Bloomfield, Cranford, Freehold, Middletown, Mount Olive, Phillipsburg, Pohatcong, Sayreville and Washington Borough are just a few of at least 46 municipalities that have adopted such restrictions.

Some recent related posts:

October 19, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, October 18, 2006

California's sex offender residency restriction proposition

Thanks to CrimProf Blog here, I see another great story about the legal questions surrounding sex offender residency restrictions.  This story comes from California, and from this Contra Costa Times article exploring the proposition on the state's November's ballot, Proposition 83, which says that anyone required to register as a sex offender cannot live "within 2,000 feet of any public or private school, or park where children regularly gather."  Here is a snippet:

To legal scholars and critics, including some sex-crime detectives and prosecutors, those words present serious concerns.... "There are difficult constitutional questions that are implicated by this law," said Derek Shaffer, executive director of the Stanford Constitutional Law Center. 

About 70,000 registered sex offenders live in California communities.  Another 17,000 are behind bars.  Sex offenders, said Shaffer, could argue that Prop. 83 strips them of protected liberties -- although a challenge on those grounds failed to overturn an Iowa law that restricts sex offenders from living within 2,000 feet of schools and day care centers.

Some recent related posts:

October 18, 2006 in Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Tuesday, October 17, 2006

The scattered law of sex offender residency restrictions

As previously discussed here and here, laws restricting where sex offenders can live and go have become very popular with states and localities.  But, as noted here, there seem to be few resources that compile and assess the current state of the law.  Thanks to CrimProf Blog, though, I see that the Dallas Morning News recently ran this strong article about the law of residency restrictions.  Here are some snippets:

It's become a national game of one-upmanship: Which U.S. city can put the toughest living restrictions on registered sex offenders? And it's being played here in North Texas, where farm towns, affluent suburbs and urban centers alike are approving increasingly broad "no sex offender" zones.  But lost in this race to ban sexual predators from American neighborhoods is a controversial civil rights question: Is it lawful to punish sex offenders who have already served their sentences?

As Dallas officials grapple this fall with whether to approve a sex offender ordinance, they'll do so with little legal clarity. A state senator is still awaiting a ruling from the Texas attorney general on the restrictions, which generally ban sex offenders with violent crimes or child victims from living within 1,000 to 2,000 feet of schools, day-care centers, parks and other child-friendly places.  And across the country, the courts have sent mixed messages.  Some have affirmed the local ordinances; others have overturned them.

The legal uncertainty surrounding sex offender residency restrictions, as well as the inevitability of continued litigation around these laws, presents an opportunity for an enterprising lawyer (or law student) interested in constitutional litigation.  Any thoughtful lawyer or law student who starts a blog covering this field could likely become a leading national expert on this emerging legal topic within a matter of months.  Any takers?

October 17, 2006 in Sex Offender Sentencing | Permalink | Comments (57) | TrackBack

Monday, October 16, 2006

In the SL&P mailbag: a book on sexual predator laws

In the mail today I received a copy of a new book from by Eric Janus, entitled "Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State," which seems especially timely in our post-Foley world.  (Are we post-Foley, or still just mid-Foley, these days?)  I then discovered that parts of this new book (and an abstract) are available here from SSRN.  Here is the start of the abstract:

Most crimes of sexual violence are committed by people known to the victim-acquaintances and family members.  Yet politicians and the media overemphasize predatory strangers when legislating against and reporting on sexual violence. In this book, Eric S. Janus goes far beyond sensational headlines to expose the reality of the laws designed to prevent sexual crimes.  He shows that "sexual predatory" laws, which have intense public and political support, are counterproductive. Janus contends that measures such as civil commitment and Megan's law, which are designed to restrain sex offenders before they commit another crime, are bad policy and do little to reduce sexual violence.  Further, these new laws make use of approaches such as preventative detention and actuarial profiling that violate important principles of liberty.

Some recent related posts:

October 16, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, October 04, 2006

On goes the Foley scandal

You would think the folks in DC would some day realize that cover-ups are often the source of more trouble than the trouble itself.  Today, according to reports from ABC, efforts to cover up Rep. Foley's actions has led to one GOP staffer resigning.  Meanwhile, Orin Kerr is again working on unpacking various criminal law issues raised by the tangled web still being woven.

Some recent related posts:

October 4, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, October 03, 2006

Holy moly Foley!

Details about former Rep. Foley's unsavory behavior continues to dribble out: the ABC news blog and CNN are now both reporting that "Former Congressman Mark Foley (R-FL) interrupted a vote on the floor of the House in 2003 to engage in Internet sex with a high school student who had served as a congressional page."  For law geeks, this latest revelation leads to interesting legal questions about whether "Internet sex" qualifies as "sexual activity" under various potentially applicable state and federal criminal laws.

Those thinking through criminal law issues might be interested in the early numbers from an ABC poll asking: "What sort of punishment is appropriate for former Congressman Mark Foley"?  With 10,000 responses as of 5pm EDT, almost 75% are already indicating that "He should face criminal charges," with another 20% saying "Not sure. The case needs to be investigated further."  Less than 5% of respondents indicate that they think he has been punished enough because "He has already resigned from his position."

Some recent related posts:

UPDATE:  Orin Kerr at The Volokh Conspiracy does a strong job here walking through some of the legal issues raised if (and when?) federal prosecutors consider pursuing federal charges against Foley.  And TChris here at TalkLeft spotlights that Foley's still-emerging excuses for his behavior are very unlikely to shift public opinion that is obviously so solidly against him.

ANOTHER UPDATE:  Consider the developing Foley saga against the backdrop of this local article from Pennsylvania discussing an event in which State Attorney General Tom Corbett warned high school students about "clean-cut" predators using the internet to try to arrange sexual encounters with young people.  This closing passage from the article is especially interesting:

Students peppered Corbett with questions after the talk, asking him why people become predators and how much jail time they face.  Corbett said the penalties could range from a few years for someone who attempts to have sex with a young person, to more than a decade if they carry out the act.  ''The [sentencing] guidelines haven't caught up with what is happening with technology and crimes,'' he said.

October 3, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Monday, October 02, 2006

How could and should Foley be prosecuted?

Late yesterday, while trying to wrap up some pre-sundown work, I had a chance to speculate about possible prosecutorial issues in what is being called predatorgate.  That speculation turned into this New York Times story, which in turn has led to a lot of calls from various folks about exactly what former Rep. Mark Foley could be charged with as a result of his improper contacts with congressional pages.

I am not an expect on the reach and nuances of all sex offense laws, so I keep saying simply that federal and state prosecutors will have many legal issues to consider as the facts emerge.  Indeed, as well documented here and here at one of ABC's blogs, new revelations about Foley's e-mails suggest a lot more possible grounds for criminal liability.

Because I am interested in a fair assessment of the criminal issues raised by this case without the partisan political overlay, I am eager to hear from knowledgeable folks (either in comments or via e-mail) about how they think Foley could and should be prosecuted for his behavior.  Relatedly, I wonder if folks think Foley's high profile will lead to him being treated more harshly or less harshly by the criminal justice system than if there were similar revelations about the behavior of, say, a mid-level corporate executive.

October 2, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Sunday, October 01, 2006

How will Foley's folly impact the sex offender panic?

I am not sure if I am amazed or even phased by the revelations that Republican Rep. Mark Foley had numerous improper contacts with congressional pages.  But I am puzzled when I try to figure out the implications of this latest congressional scandal for all the federal and state legislation and proposals purporting to get extra tough on sex offenders.

This CNN story details many of the latest interesting facets of this unfolding scandal:

Foley, a Republican from Florida, resigned Friday after his alleged e-mail exchanges with a teenage male page were made public, and the House voted to launch an investigation. Foley apologized to his family and his constituents.

Foley, who co-chaired the Congressional Missing and Exploited Children's Caucus, did not mention the messages that brought him down. The six-term representative has pushed legislation to crack down on Internet child pornography and tighten tracking rules for sex offenders.

GOP sources told CNN that Foley's resignation was prompted in part by concerns that other potentially politically damaging e-mails or information might surface, including exchanges with other pages that were more graphic....

The Democratic National Committee issued a statement Saturday saying that at least one member of the Republican House leadership, Rep. Tom Reynolds of New York, had "known about the situation for months and did nothing about it." Reynolds chairs the National Republican Congressional Committee, the election campaign arm for House Republicans. Reynolds responded by saying that when Rep. Rodney Alexander, a Louisiana Republican, told him about the e-mails, he said the teen's parents didn't want the matter pursued.  Alexander was the boy's sponsor.

Some related posts:

October 1, 2006 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Friday, September 22, 2006

Might Berger get SCOTUS attention?

Earlier this year, the Arizona Supreme Court rejected a former Phoenix high school teacher's claim that his 200-year prison sentence for possessing child pornography violated the Eighth Amendment (basics here, commentary here).  I believe that the defendant has now appealed Azizona v. Berger to the US Supreme Court, and syndicated columnist James J. Kilpatrick has taken up the cause in this interesting column.  Here are snippets:

There is no question of Berger's guilt. He emerges from the record as an almost classic "dirty old man."  There is no evidence that he himself ever engaged in distributing, exhibiting, receiving, selling, purchasing, electronically transmitting or even "exchanging" pornographic images, all of which the Arizona law forbids.  He was convicted solely of "possessing" such images. He collected them.

These facts should weigh in your calculus, for good or ill: He is 52 years old, married, a father of four, an award-winning teacher of world history.  He has no criminal record of any sort. The state offered no evidence that he has ever created pornography or improperly touched a minor.

In their appeal to the Supreme Court, his counsel rely upon a single argument: The unservable sentence violates the Eighth Amendment to the Constitution. The amendment decrees that courts may not inflict "cruel and unusual punishments."  The 200-year prison sentence imposed on Berger is plainly "unusual."  At that punitive level, Arizona stands alone. Its minimum 10-year sentence for possession of a single piece of child pornography is greater than the maximum sentence for this offense in 35 states.  It is equal to the maximum in nine others.

Is the 200-year sentence also constitutionally "cruel"?  Who is to say?  Manifestly, the question is hypothetical, or academic.  On the record, Berger is a middle-aged, dirty-minded, part-time pedophile.  But also on the record, he has never physically harmed anyone. He never even bought any of this stuff. He merely downloaded it....

This is a case the high court ought to hear.  Morton Berger may be a creep, but on the record he's a pretty sad creep.  The sentence is absurd.

Some related posts:

September 22, 2006 in Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Tuesday, September 19, 2006

Consequences of California's new proposed sex offender law

This Los Angeles Times article provides interesting background on the provisions and likely impact of California's Proposition 83, a ballot initiative that would restricts where the sex offenders can live, requires electronic monitoring for life, and lengthens sentences. Here are some highlights:

Proposition 83 on the Nov. 7 ballot — dubbed Jessica's Law by proponents — would lengthen prison and parole terms for the most violent sex offenders and make possession of child pornography a felony.  In addition, its most controversial provision would ban all released sex offenders from living within 2,000 feet of a school or park.  Local governments could declare additional locations off-limits, and sex offenders would be monitored for life with an electronic tracking device.

If passed, the measure would cost the state at least $200 million annually within a decade, according to the nonpartisan legislative analyst, largely because of the satellite tracking and police needed to enforce it.... Citing the experience of other states, some scholars say the residency rule would banish the former convicts from urban settings that offer the services, jobs and family connections that help them remain law-abiding — and dump them on rural communities ill-equipped to supervise them.  In Iowa, prosecutors who once backed such a law said the residency limit had backfired, and they now want it repealed.

According to maps prepared by the state Senate, the initiative would bar sex offenders from living in nearly all of San Francisco and much of urban Los Angeles, while they would be allowed to live in many less densely populated suburbs around the state.  State Sen. Dean Florez (D-Shafter), whose farm-belt district in the Central Valley is one area where sex offenders could legally live, said the measure would legalize "predator dumping."  The Bakersfield Californian newspaper agreed, and editorialized against it under the headline "Our children deserve same rights as city kids."  Such worries have prompted one supporter, Los Angeles County Dist. Atty. Steve Cooley, to lose much of his zeal for the measure. Although he supports the tougher sentencing it offers, Cooley says, "the potential unintended consequences — like burdening our rural areas — have not been well thought out."...

The initiative has been endorsed by GOP Gov. Arnold Schwarzenegger, who signed the ballot argument in favor of it, and his Democratic opponent, Phil Angelides. It is also endorsed by Crime Victims United and statewide associations of police chiefs, sheriffs and prosecutors. An August Field Poll showed the proposition with a lead of nearly 7 to 1, a reflection, analysts say, of the public's deep unease about a category of offenders often linked to heinous, headline-grabbing crimes.

September 19, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Monday, September 18, 2006

Interesting sex offender ruling from the Sixth Circuit

In addition to doing strong post-Booker work on reasonableness review (some recent highlights here and here), the Sixth Circuit can be counted for interesting work on other sentencing issues.  Today we get an intriguing ruling on supervised release conditions and sex-offender treatment in US v. Carter, No. 05-6129 (6th Cir. Sept. 18, 2006) (available here).  Here is the start of the majority opinion:

Defendant-Appellant Larry W. Carter appeals the imposition of a special supervised-release condition mandating sex-offender treatment.  Carter challenges the condition on the ground that it is not reasonably related to either his instant conviction of being a felon in possession of a firearm or his convictions for sex offenses committed in 1988. Carter also challenges one aspect of the treatment program — polygraph testing — on the ground that it violates his Fifth Amendment privilege against compelled self-incrimination.

Because Carter's instant conviction is not a sex offense and Carter's prior convictions are either too remote in time or not clearly sexual in nature, we VACATE the special condition. We instruct the district court on REMAND to determine whether Carter's 2004 stalking conviction is sexual in nature and therefore provides an independent basis for the special condition. This resolution makes it unnecessary to address the Fifth Amendment challenge.

September 18, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Monday, September 11, 2006

Another twist on (and twisted) sex offender restriction

This weekend, I asked here for information about compilations of state and local laws creating sex offender residency and movement restrictions.  In addition to a number of helpful comments, I received this fascinating report from Tennessee attorney David Raybin:

Effective July 1 the Tennessee legislature enacted the following amendment (below) prohibiting sex offenders from attending sex offender treatment if the treatment program is within 1000 feet of a "child care facility" or related places where children go such as a playground. This is a disaster because such places as Vanderbilt have a number of certified sex offender treatment providers, but Vanderbilt has a children's hospital and most if not all of the doctor's offices are across the street from a school.  In one fell swoop Vanderbilt loses the ability to treat sex offenders.  In smaller towns there is ONLY one treatment provider and, being a small town, is close to a day care or a school etc. 

There are a dozen statutes mandating sex offender treatment. Just exactly where are these folks to go? I have a client who is court ordered to treatment and has been going for years, but now we find his doctor is in the "zone of exclusion."

I am at a loss to understand WHY this ever became law and if anybody thought about the horrible consequences of this which is counter-productive of what the other legislation is seeking to accomplish.  This provision regarding treatment providers should be repealed.  These sex offenders have become the new lepers. W e will soon require that they all be tattooed with barcodes.

SECTION 20. Tennessee Code Annotated, Section 40-39-211, is amended by deleting subsection (a) and substituting instead the following: (a) While mandated to comply with the requirements of this chapter, no sexual offender, as defined in § 40-39-202(16), or violent sexual offender, as defined in § 40-39-202(24), whose victim was a minor, shall knowingly establish a primary or secondary residence or any other living accommodation, or knowingly obtain sexual offender treatment or attend a sexual offender treatment program, or knowingly accept employment, within one thousand feet (1,000') of the property line on which any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public.

September 11, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack