Monday, June 07, 2010

Interesting state certification "dodge" to deal with juve SORNA case from Montana

I am intrigued (and I think pleased) that the Supreme Court this morning in US v. Juvenile Male decided to deal with a complicated issue involving retroactive application of a federal sex offender notification provision for adjudicated juvenile delinquents by certifying a question to the Montana Supreme Court. The per curiam order in this case has the SCOTUS Justices asks this question of the Montana Justices:

Is respondent’s duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register asa sex offender, see Mont. Code Ann. §§46–23–502(6)(b), 41–5–1513(1)(c) (2005); State v. Villanueva, 328 Mont. 135, 138–140, 118 P. 3d 179, 181–182 (2005); see also §46–23–502(9)(b) (2009), or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federaljuvenile-supervision conditions, see §46–23–502(10) (2009); 2007 Mont. Laws ch. 483, §31, p. 2185?

I am uncertain whether this "passive virtues" approach to dealing with the Solicitor General's cert request following Ninth Circuit's ruling in Juvenile Male is a clever or curious dodge of a complicated sex offender registration issue.  But I am certain that this approach shows the SCOTUS Justices' continued concern with at least some aspects of the scope and operation of federal SORNA provisions.

June 7, 2010 in Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, June 03, 2010

Ohio Supreme Court declares unconstitutional changes to state sex offender rules pushed by feds

The Ohio Supreme Court handed down an intriguing sex offender registration ruling this morning in State v. Bodyke, No. 2010-Ohio-2424 (June 3, 2010) (available here). The Ohio Supreme Court does everyone the favor of producing an official press release with its decisions, and the Bodyke press release summarizes today's ruling this way:

In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.

Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.

Though a "narrowly tailored" decision, this ruling could and probably should have an interesting ripple effect in state compliance with the federal mandates of the federal Adam Walsh Act.  Indeed, a footnote near the start of the Bodyke opinion highlights why Ohio is something of a path-breaker in this arena:

FN 4: Ohio is the only state to have complied with the [federal AWA] mandate, however. Greg Bluestein (December 1, 2009), “Ohio lone state to adopt sex-offender rules,” in Canton, available at (last visited Mar. 22, 2010). The deadline for compliance has been extended from July 2009 to July 2010, but it appears that many states will still be unable, or unwilling, to comply. Id. For manystates, the costs of compliance with the act will far outweigh the ten percent reduction in funding. The cost for Illinois, for example, has been estimated at nearly $21,000,000 to comply with the Act in the first year, but that it will lose less than $1,000,000 if it does not.  See Liz Winiarski, Facing the Compliance Deadline for the Adam Walsh Child Protection and Safety Act, States are Weighing all the Costs (2009), 14 Pub.Interest L.Rep. 192, 193.

June 3, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, June 02, 2010

Eleventh Circuit panel reverses ruling that 30-year mandatory AWA sentence for attempted sex offense is unconstitutional

Long-time readers may recall a notable district court opinion in US v. Farley from September 2008 (discussed in this post), which found unconstitutional a mandatory minimum term of 30 years imprisonment for a defendant who travelled across state lines in an effort to engage in sexual activity with a fictious child.  (Some may also recall the interesting twist, discussed in this February 2009 post, that a group of House Republicans filed a brief in the Eleventh Circuit contending that the 30-year mandatory minimum prison sentence was constitutionally sound). 

This afternoon an Eleventh Circuit panel issued this 112-page opinion in Farley, which starts and ends this way: 

In the Fall of 2006, Kelly Farley was a thirty-seven-year old businessman living in Texas with a pregnant wife and five children, ranging in age from one to fourteen. His interest in families was not limited to his own, and his sexual interests extended beyond what our society and its laws will tolerate. Farley is sexually attracted to girls he described as “still innocent, but starting to bud a little,” and he wanted to have sex with a girl who was around nine to eleven years old. Using the internet, he made contact with the mother of a child of that age and set out to persuade her not only to let him have sex with her daughter but also to join him in sexually violating the child.

To reach that goal Farley engaged in a steady stream of chat room conversations, emails, and phone calls over a period of seven months with the mother, leading up to his arrival in Atlanta carrying directions to the place where he planned to rendezvous with her and her eleven-year-old daughter. Farley’s actions led to his arrest, which led to his trial, which led to his conviction and sentence, which led to the government’s appeal of that sentence, which led to Farley’s cross-appeal of both his conviction and sentence, all of which led to this opinion....

We AFFIRM Farley’s convictions on both counts, and his sentence on Count Two.  We REVERSE the district court’s order declaring unconstitutional the application of the mandatory minimum sentence under 18 U.S.C. § 2241(c), VACATE Farley’s sentence on Count One, and REMAND with instructions to impose a sentence no less than that required by § 2241(c).

The discussion of Eigth Amendment law and its application runs roughly the last 20 pages of this long opinion and it relies heavily on the Supreme Court's 1991 Harmelin ruling in the course of deciding that "the thirty-year sentence required by § 2241(c) in light of Farley’s crime does not lead to an inference of gross disproportionality." Here is some notable passages from this discussion:

The crime in Harmelin was possession of 672 grams of cocaine.  The crime here is travel across state lines with intent to sexually violate an underage child.  While it is true that Farley, through no fault of his own, was unable to inflict that harm on an actual victim, the same could be said of Harmelin.  After all, the 672 grams of cocaine he possessed was seized by police before any of it could be further distributed or consumed, thereby preventing harm to society.  See id. at 988, 111 S.Ct. at 2698 (lead opinion)....

The Court stated in Harmelin that the “possession, use, and distribution” of illegal drugs are serious problems affecting the health and welfare of the population, and it dismissed the argument that Harmelin’s crime was nonviolent and victimless as “false to the point of absurdity.”  Id. at 1002, 111 S.Ct. at 2705–06.  By the same token, the sexual abuse of children, and the use of the internet to facilitate that abuse, are serious problems affecting the health and welfare of the nation.  The Supreme Court, this Court, and other courts have expounded at length on the severity of the crimes involving the sexual abuse of children and the extent of the harm caused by those crimes.....

We would find any suggestion that child sexual abuse is a nonviolent crime as absurd as the Supreme Court found the same suggestion about possession of 672 grams of cocaine.  See Harmelin, 501 U.S. at 1002, 111 S.Ct. at 2706 (plurality opinion).  Even more so.

I would expect that the defendant in this case to seek en banc and/or cert review of this Eighth Amendment ruling by the panel in Farley.  And I would predict, at least as of this writing, that the full Eleventh Circuit and the Supreme Court will not want to hear this case and that this Circuit ruling will thereby be allowed to stand.

Some related posts:

June 2, 2010 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Elderly sex offender gets long sentence for not checking ID before taking dirty pictures

This local story out of Michigan, which is headlined "Sex offender, 73, confused why his photos of nude teens caused such a legal fuss," reports on an interesting case involving an old pervert getting in big trouble for not figuring out how to refine his prurient interests.  Here are the details:

Charles Judson Holbrook, sentenced twice for being a child sexual predator, says he doesn't understand why his photography of nude teens has caused such a fuss.  Holbrook, 73 ... was sentenced to 15 to 40 years in prison Tuesday by Kent County Circuit Judge James Robert Redford for taking pictures of girls as young as 14 in exchange for money they used for drugs and shopping.

The incidents occurred between 2003 and 2009 involving three girls, all now older than 18, who lived in or had a friend living in Holbrook's neighborhood.... Three women told a jury Holbrook plied them with gifts and cash to pose nude or semi-nude for photos.

A 23-year-old woman said she was 16 or 17 when she began accepting money from Holbrook to have her picture taken in various states of undress -- including photos taken when she was pregnant at age 17.  She said she used the cash she would get for the photo sessions to buy drugs and alcohol.

Two other women said they posed for Holbrook as teens.  One of the girls was 14 at the time she was photographed.  Another said she posed with other girls and would help recruit them to go to Holbrook's house, telling them they could make money.

The women said they would travel with Holbrook to area parks, and he would treat them to dinner, usually giving them money.  Two of the women also said Holbrook offered them money to have sex, which they refused.  None of the victims showed up for Tuesday's sentencing.

Holbrook's attorney, Freeman Haehnel, pointed out that the girls would show up to Holbrook's home uninvited and freely took money in exchange for posing.  "I don't know who the predator is here," Haehnel said. "It seems both parties were using each other."

Holbrook appeared flummoxed by the whole series of events as the frail man looked around the room for family members.  "I don't understand all this fuss over my picture-taking," Holbrook said.  "All this over my picture-taking?"  Holbrook said he has been fascinated by photography for more than 60 years.

In 2001, Holbrook pleaded guilty to charges he took nude photos of girls whom he met and befriended through his connections as a long-time sports fan and booster club volunteer in the Wyoming and Godfrey Lee school districts.  Holbrook also pleaded guilty to a charge of having sex with a 15-year-old girl.

He was sentenced to one year in jail by then-Kent County Circuit Judge David Soet.  In his earlier case, Holbrook was turned in by a photo developer.

The latest charges were a result of a victim coming forward, although the photos were developed at area drug and grocery stores where Holbrook would have his victims drop off the film and pick up the photographs.  "If I thought there was a problem with my pictures, why, the corner drug store would not have touched them," Holbrook told Redford.

Redford called Holbrook's contentions "utter nonsense" and "completely fictitious." "This case is not about a 73-year-old man's fixation with cameras," said Redford. "This is about a predator taking sexually predatory advantage of vulnerable girls over a period of decades."

The best-case scenario for Holbrook would have him leaving prison at age 88.  But Haehnel said considering Holbrook's health, the sentence handed down Tuesday is tantamount to a life sentence.

I believe that, had the girls photographed reached their 18th birthday when they started posing for cash, then Charles Judson Holbrook's behavior would have been not only legal, but constitutionally protected First Amendment activity.  Thus, it seems that the real key to Holbrook's crime was his failure to ask for ID when teenage girls came to his door asking to be paid nude models. 

In this context, it also bears noting that many states are prepared and eager to treat teens as adults when they commit crimes --- for example, this recent local story reports on Michigan charging a 14-year-old as an adult for a home invasion --- but they then readily assail someone like Charles Judson Holbrook for treating teens like adults in another context.  Holbrook's surprise about his functional life sentence for taking nude pictures of teens perhaps makes sense given that Michigan asserts that teens can and should be treated like adults in other criminal justice settings.

I wonder what the folks at Liberty Central, who claim a commitment to "Founding Principles" of "limited government, individual liberty, free enterprise, ... and personal responsibility" would say about an old guy getting a functional life sentence for simply running his own small (teen porn production) business. 

June 2, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Tuesday, June 01, 2010

Some intriguing who and how dynamics in the Carr ruling reversing sex offender's SORNA conviction

The substance of the Supreme Court's opinion this morning in Carr (basics here), which reverses a sex offender's failure-to-register federal conviction, is mind-numbing even for hard-core sentencing fans.  The decision is focused only on statutory interpretation: he majority declares that the criminal statute, 18 USC § 2250, does not apply to sex offenders whose interstate travel occurred before the effective date of the Sex OffenderRegistration and Notification Act (SORNA); the dissent contends that SORNA's statutory text should be read to reach preenactment as well as postenactment travel by sex offenders.  Along the way, we learn about congressional legislative drafting manuals, and the dissent even provides a remarkable sting cite to nine state legislative drafting manuals (with parentheticals).  Woo hoo!

Despite the drab substance of the Carr opinions, the authors, votes and approaches in the Court's work here merits comment and reflection:

First,it is interesting and notable that the two former prosecutors on SCOTUS, Justices Sotomayor and Alito, wrote the majority and dissenting opinions.  It is likewise interesting and notable that the two female Justices also split in this case.  I cannot help but suspect that the sex offender context may have prompted Justice Ginsburg to be less sympathetic than usual to the appealing defendant here.

Second,it is interesting and notable that the majority opinion by Justice Sotomayor relied a bit on legislative history, but did not mention statutory construction canons like the rule of lenity and constitutional doubt, to reach a pro-defendant statutory ruling.  This strike me as backward because I think Congress likely wanted SORNA to have a very broad reach, yet I also think pro-defendant statutory construction canons should be the chief way to force Congress to be very clear with its statutory text when it wants a criminal statute to have a very broad reach.

Third,it is interesting and notable that Chief Justice Roberts did not join Justice Scalia's brief concurrence complaining about the majority's reliance on legislative history, and also that Justice Alito's dissent also played up legislative history to some degree.  It seem that Justice Scalia's antipathy for reliance on legislative history is not gaining any new converts among the new Justices.

Fourth, both the majority and dissent note lots of circuit splits and lots of potential constitutional concerns with aspects of SORNA that are not directly addressed in the Carropinion.  I think this means we can and should expect a docket filled with at least a SORNA case or two in many future SCOTUS Terms.

June 1, 2010 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Sex offender prevails with challenge to SORNA conviction in Carr

SCOTUSblog already has news on the first Supreme Court opinion handed down this morning, and it is a win for a sex offender appealing his SORNA conviction in Carr.  Here is the early SCOTUSblog report:

We have the first opinion: 08-1301, Carr v. United States.... The opinion is by Justice Sotomayor, reversing and remanding....

The vote is 6-3, with Justice Scalia joining most of the Sotomayor opinion but filing a concurrence in part and in the judgment. Justice Alito dissents, joined by Justices Thomas and Ginsburg.... The Court rules that a 2007 law (SORNA) that requires sex offenders to register does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

This interesting case appears to have produced an interesting vote line-up (and includes yet another pro-defendant vote from the Chief Justice).  The full Carr opinion is available here, and I will likely comment in more detail in a later post once I have a chance to review the Justices' work in detail.

June 1, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Thursday, May 27, 2010

Ohio legislature developing special teen "sexting" criminal law

My local Columbus Dispatch reports here on an interesting state legislative effort to create a special criminal law to deal with the special problem of teen sexting.  This article is headlined "Ohio House backs making teen 'sexting' crime: Bill rules out harsh penalties because it’s only for minors," and here are the interesting details:

Ohio House yesterday passed a bill that would punish teenagers for "sexting" but ensure that they do not face harsh punishment or be put on the sex-offender registry normally associated with transmitting nude pictures of minors.

"This is a growing problem that must be addressed in the most responsible and effective way," said sponsor Connie Pillich, D-Montgomery, who introduced the bill about a year after a House Republican pushed a similar measure. "Is this behavior bad? Yes. Does it warrant a life sentence as a sex offender? No."

As technology has made it increasingly easy to take pictures and transmit them, studies say a growing number of teenagers are sending nude pictures of themselves or others in what is commonly known as sexting.

But the problem for law-enforcement officers and prosecutors is how to treat these situations under existing law, which is designed to harshly punish those who transmit such pictures and was largely written long before sexting was even possible.

Pillich noted cases in Pennsylvania and Ohio in which teenage girls faced serious child-pornography charges for sending nude photos of themselves. "One of the central tenets of our juvenile-justice system is that children are to be treated differently than adults," Pillich said.

House Bill 473 creates the new offense of sexting and applies it only to minors, classifying the sending of a nude photo of oneself as an unruly act and the sending of a photo of another as a misdemeanor.

The bill passed 86-12. Some members were concerned that the Ohio Prosecuting Attorneys Association opposed the measure. Prosecutors argued that some offenses with potentially devastating consequences are being improperly reduced, sending the wrong message about the seriousness of the offenses.

"This is a serious matter, and I think if we're really concerned about the safety of these young people and properly handling this serious offense, we should listen to what prosecutors say ... and take it back and redo it again," said Rep. Danny Bubp, R-West Union.

Some related "sexting" posts:

May 27, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Wednesday, May 26, 2010

Prohibition on sex offenders using social media websites among new laws being considered in California

As detailed in this new San Diego Union Tribune article, which is headlined "Bill would limit sex offenders’ Internet use: Enforcement would be difficult, critics say," the recent high-profile crimes involving sex offender John Gardner in California is prompting more tech-savvy tough-on-sex-offender legislation. Here are the details:

Sex offenders trolling the Internet for their next young victim could wind up back behind bars, even without committing a new crime.  That is the goal of a measure moving through the Legislature that would prohibit paroled child molesters from using social networking sites such as MySpace or Facebook.

“Predators have left the playground and are now going to the Internet,” warned Harriet Salarno, president of Crime Victims United, an advocacy group that has endorsed the ban.

But parole agents and civil libertarians are wary, questioning the wisdom of legally suspect legislation that would rob supervisors of time better used to make home visits that can reveal evidence of contacts with children, child pornography or other behavior.  “All they have to do is go to a public library and use a fake name and we’re not going to find it,” said Melinda Silva, a Sacramento parole agent and president of their statewide union.

John Albert Gardner III, sentenced this month in the murders of North County teens Chelsea King and Amber Dubois, maintained a MySpace page in violation of his parole for a previous molestation conviction. He used the name Jason the Stud and listed his home as the Playboy Mansion....

The issue has emerged in the campaign for state attorney general. Candidates have rushed to voice support of a crackdown, particularly Chris Kelly, who has taken a leave of absence from his post as Facebook’s chief privacy officer during the campaign.

Others urge caution.  Even the California Sex Offender Management Board, in its recent recommendations to the governor, cited time constraints facing parole agents. “There are so many social networking sites of various types that it may be virtually impossible to enforce,” the board said in its report....

Sen. George Runner, R-Lancaster, is carrying separate legislation that would require registered sex offenders — even when they are released from parole — to submit to law enforcement all e-mail addresses, various user names and social network pages.  That way, he said, social networks can use the database to purge them from sites.  “We ask them for their physical address.  We ought to ask them for their electronic address,” Runner said.  His Senate Bill 1204 sailed through the Senate and is pending in the Assembly.

May 26, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Friday, May 21, 2010

"Judge Weinstein Takes On Child Pornography Laws"

The title of this post is the headline of this effective new article in the New York Times, which gives special attention to Judge Jack Weinstein's handling of the Polizzi case.  Here is the start of the must-read piece:

In his 43-year career as a federal judge, Jack B. Weinstein has come to be identified by his efforts to combat what he calls “the unnecessary cruelty of the law.” His most recent crusade is particularly striking because of the beneficiary: a man who has amassed a vast collection of child pornography.

Judge Weinstein, who sits in the United States District Court in Brooklyn, has twice thrown out convictions that would have ensured that the man spend at least five years behind bars. He has pledged to break protocol and inform the next jury about the mandatory prison sentence that the charges carry. And he recently declared that the man, who is awaiting a new trial, did not need an electronic ankle bracelet because he posed “no risk to society.”

There is little public sympathy for collectors of child pornography. Yet across the country, an increasing number of federal judges have come to their defense, criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade.

Last week, the United States Court of Appeals for the Second Circuit vacated a 20-year child pornography sentence by ruling that the sentencing guidelines for such cases, “unless applied with great care, can lead to unreasonable sentences.” The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.

Judge Weinstein has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography.

“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children. “We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

The man he has spent three years trying to save from a long incarceration is Pietro Polizzi, a married father of five who collected more than 5,000 graphic pictures of children. If prosecuted in a New York State court, he would have faced a maximum prison sentence of four years. Instead, in federal court, he faced a minimum of five years and a recommended sentence of 11 to 14 years. Because of Judge Weinstein’s intervention, he remains free as he awaits another trial.

“I don’t see Judge Weinstein as a judge,” Mr. Polizzi said during an interview as tears rolled down his face. “I see him as my father. He helps people. He doesn’t destroy lives the way the prosecutor has. He’s the one who is going to set me free from the court.”

May 21, 2010 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (40) | TrackBack

"Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says"

The title of this post is the headline of this interesting piece by Shannon Duffy in the The Legal Intelligencer.  Here is how it starts:

The hot-button issue of "sexting" is coming back to court and this time the ACLU is setting out to establish that high school students have a right to privacy that includes the contents of their cell phones.

A team of lawyers from Cozen O'Connor has partnered with the ACLU of Pennsylvania to sue on behalf of a student who claims her constitutional rights were violated when the principal confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.

ACLU legal director Witold Walczak said the issue is an important one because many school officials incorrectly believe they have the right to search through cell phones whenever a student is misusing one. "We try to explain to them that they have the right to confiscate it, but they don't have the right to look through it," Walczak said in an interview.

Once again, the case stems from the wave of sexting discovered among students at Tunkhannock junior and senior high schools in Wyoming County, Pa., and the reactions it sparked in school officials and prosecutors.

In a previous lawsuit that was aimed only at the Wyoming County prosecutors, three students won an injunction that barred any prosecutions of students on child pornography charges for the nude and semi-nude images found on their phones.

According to that suit, school officials turned over the students' phones to former Wyoming County District Attorney George Skumanick Jr., who responded by targeting 13 girls and three boys with threats of criminal charges if they did not agree to take a class he had designed on the dangers of sexting.

Most agreed to take the class to avoid prosecution, but three of the girls and their parents instead enlisted the help of the ACLU to challenge the threatened prosecutions. Lawyers from the American Civil Liberties Union of Pennsylvania won an injunction from U.S. District Judge James Munley that was later upheld by the 3rd U.S. Circuit Court of Appeals.

Some related "sexting" posts:

May 21, 2010 in Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"First, They Came for the Sex Offenders"

The title of this post is the heading of this interesting new commentary at Cato's @ Liberty blog by David Rittgers. Here is how it starts:

First, they came for the sex offenders.  I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress.  The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.

Next, they will come for suspected terrorists.  As Dahlia Lithwick (who I rarely agree with...) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.

I saw this firsthand last summer when I attended a scholars meeting with the Obama administration’s Detention Policy Task Force (the same one that Andy McCarthy publicly refused to attend).  I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record).  I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism.  Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas.  This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.

May 21, 2010 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Monday, May 17, 2010

Recapping my coverage of today's significant SCOTUS action

Since I have done a lot of posts (too many?) on today's significant sentencing rulings by the Supreme Court, I thought it might be useful in this final post of the day to recap my coverage via these links:

On the Graham juve LWOP Eighth Amendment ruling:

On the Comstock federal sex offender civil commitment ruling:

May 17, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

The political and PR benefits for SCOTUS (and others) from Comstock and Graham coming down together

Anyone who thinks the Justices of the Supreme Court are not attuned to issues of politics and public relations needs to explain to me why the anti-sex-offender ruling in Comstock just happened to be handed down on the same day as the pro-defendant ruling in Graham.  For a host of reasons, I suspect the Justices made a conscious effort to release these opinions together (and, to quote a famous Seinfeld episode, "Not that there's anything wrong with that!"). I am not sure there is any reason to lament this PR strategic decision).  Consider how the Wall Street Journal announced today's SCOTUS work via my e-mail in-box as a "news alert":

The Supreme Court said the U.S. can keep "sexually dangerous" prisoners in custody past the completion of their sentences, overruling arguments that only states hold such power.  The ruling was 7-2, with Justices Antonin Scalia and Clarence Thomas in dissent.

In a separate case, the court ruled 5-4 that teenagers may not be locked up for life with no chance of parole if they haven't killed anyone. (Correction: A previous alert said the Supreme Court ruled 6-3 on the juvenile-parole case.)

For those who does not follow the Supreme Court and/or sentencing issues closely, I suspect the first reaction to this breaking "news alert" was "seems like the Supreme Court is being pretty sensible."  Thanks to Comstock coming down with Graham, we learn that "sexually dangerous" prisoners can be kept locked up before we learn that teenagers cannot be "locked up for life with no chance of parole if they haven't killed anyone." 

For those especially eager to reflect on the Justices' as PR and political strategists, one might also focus on the fact that the juve who committed a sexual offense, Joe Sullivan, got his case DIGed today.  Thus, the Justices found a way not only to make their landmark Eighth Amendment ruling the "second" SCOTUS story of the day, they also made sure that individuals (and legislators) most focused on how we deal with sex offenders paid attention principally to the pro-government ruling in Comstock.

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (33) | TrackBack

Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?

I have barely skimmed the Graham and Comstock rulings, and already I have so many thoughts about the holdings and their potential consequences (especially regarding future non-capital Eighth Amendment litigation).  But, before going too blog crazy, I am planning to head to a local coffee shop so I can read the full opinions without too many distractions and without getting my own views colored too much by what others start saying about these cases.  Yet I wanted to do this quick post to encourage readers to opine on what they think are some of the biggest "stories" emerging from the Graham and Comstock rulings.

My first take concerns the votes and authorship of various opinions in Graham.  First, that Justice Kennedy wrote the opinion for the Court is notable and important for various political reasons, and the fact that Chief Justice Roberts voted for the defendant (in order to make the head-count 6-3) seems to me to be especially notable and important for similar reasons.  Second, that Justice Sotomayor (and not Justice Breyer) joined the separate opinion of Justice Stevens strikes me as notable and important for jurisprudential reasons.

I could go on and make some similar observations about Comstock (which was authored by Justice Breyer with a Justice Kennedy concurrence and a Justice Thomas dissent).  But now I have to actually go read these opinions carefully (and then read whatever readers have to say in the comments) concerning what they think are the most important parts to what the Supreme Court did today.

Early posts on the Comstock and Graham rulings:

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

SCOTUS upholds broad federal power to commit sex offenders in Comstock

As I had expected, this morning brings some criminal justice action from the Supreme Court.  Here is an early SCOTUS report on one big case already handed down:

We have the first opinion: 08-1224, US v. Comstock....

The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released....

The vote is 7-2, with Justice Breyer writing the opinion for the Court.  Justice Thomas dissents joined by Justice Scalia. Justice Kennedy concurs in the judgment only, joined by Alito.  The opinion in Comstock is here.

Though I will need to read Comstock closely before commenting on the substance, it is already possible to assert that this ruling has to help the cause of SG Kagan, since she argued on the winning side for congressional/federal power.

May 17, 2010 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Sunday, May 16, 2010

Fascinating fight over victims' rights and defense representation in child porn sentencing

This piece in the Detroit News, which is headlined "Lawyer may face sanctions in child pornography case," reports on a fascinating conflict between a judge and a defense lawyer over the process surrounding the role of a victim in a child porn sentencing.  Here are the interesting details:

A lawyer faces possible sanctions after filing a motion in a child pornography case that a federal judge described as "a blatant attempt to intimidate the minor victim's mother."  But the National Association of Criminal Defense Lawyers has come to the attorney's defense.

U.S. District Judge Bernard A. Friedman said in a May 3 order that a motion from Troy attorney John Freeman seeking formal notice that the victim's mother wished to speak at a sentencing hearing was "unwarranted, baseless and worthy of contempt of court."  Friedman said he will hold a hearing on whether and how Freeman -- a former federal prosecutor -- should be sanctioned.  A date has not been set.

On April 15, Friedman sentenced former Walled Lake Schools official Craig Aleo to 60 years in prison -- more than double what prosecutors requested -- for crimes that included manufacturing child pornography in which a 4-year-old girl was victimized.  Aleo, 64, of Davisburg, has filed a notice of appeal.

Prior to the sentencing, Freeman filed a motion citing the Crime Victims' Rights Act.  In his motion, he said prosecutors were required to give advance notice of the contents of a victim impact statement from the child's mother so he could appropriately respond.  Friedman said no such requirement exists, and the motion "serves as yet another indication ... of the incredible lack of remorse for the victim in this matter."

In a response filed last week by Freeman and his attorney Martin Crandall, Freeman said his motion was intended to "address a potential conflict between (Aleo's) due process rights and a victim's right to be heard at sentencing" and was "never intended to intimidate a witness, nor prevent a victim from being heard."

Detroit attorney James Feinberg signed on to the response in an amicus filing on behalf of the National Association of Criminal Defense Lawyers.  "The possibility of someone being sanctioned or held in contempt for aggressively and properly representing their client is very scary," Feinberg said Friday. The association "needs to make sure lawyers are free to aggressively represent their clients."

As detailed here, the CVRA only provides a right of notice to victims, not a right of notice to a defendant about what victims are likely to say.  Consequently, if Freeman cited only the CVRA to support his motion for defense notice, his motion was misguided.  But, absent strong evidence that Freeman has some truly nefarious intent, even a misguided defense motion requesting notice hardly seem like a sanctionable action.

May 16, 2010 in Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, May 15, 2010

Shouldn't we try to make it is easy for sex offenders to know of legal restrictions?

The question in the title of this post is prompted by this interesting Washington Post piece, which is headlined "Sex offenders, advocates push for Va. law notice." Here are excerpts:

When Robert Beckwith was preparing to leave federal prison after 11 years, he knew his label as sex offender would mean there were certain places he couldn't visit or live. He had no idea it would be so difficult to find that information.

In April, the 53-year-old Beckwith left prison in Massachusetts and headed to a northern Virginia homeless shelter. Beckwith wrote to the Virginia attorney general's office asking for help and was directed to Virginia State Police, which administers the sex offender registry. He wrote to the state police twice with no answer.

"I feel like I'm being set up to fail," said Beckwith, who was convicted of having sex with an underage girl on a military base.

Unlike some states, Virginia doesn't provide its 16,500 registered sex offenders with a list of restrictions on where they can live, work and play. Instead, registered offenders must search state websites to determine how to comply with laws meant to keep them away from schools, parks and other places where children could congregate.

Officials say it would be too costly to provide copies of the laws to all offenders and that the websites are sufficient.

Wayne Bowers, director of the Sex Abuse Treatment Alliance in Oklahoma, said by not informing sex offenders of the laws, states are opening the door for individuals to fail -- and reoffend. "If these people fail, that means there is going to be another victim," he said.

Notification laws vary across the nation. Some states, like New Mexico, spell out the restrictions on a website, while others, such as North Carolina and Indiana, require offenders to read over a list of the laws and sign that they understand it while in the presence of a law enforcement officer....

Just like with other laws, sex offenders can't claim ignorance. If they are caught too close to a school, park or, in several states, a church, they could be charged with a felony and sent back to prison. Failing to register on time also is a felony.

And while lawmakers are quick to add to the list of restrictions for sex offenders, few are willing to pass laws that favor a group so generally despised. A bill to require Virginia State Police to give offenders a list of restrictions has failed the past two years. Meanwhile, about a dozen new restrictions or enhanced penalties were enacted.

"It's not a luxury to know these rules, it's critical to success and for public safety," Reform Sex Offender Laws of Virginia founder Mary Devoy wrote to legislators after they adjourned in March without bringing the bill up for a vote in committee....

Listing the laws on the state police website isn't practical since not everyone on the registry has access to a computer, Devoy said. Also, in some localities, such as Virginia Beach, registered sex offenders are not allowed to have Internet access. It would be better if the information was included in the certified packet of information each offender receives in the mail each year, she said.

The Department of Corrections informs and trains probation and parole officers about changes to the law, but it does not provide offenders with any lists, said department spokesman Larry Traylor.

Beckwith said he doesn't understand why the state isn't more willing to help those who are wanting to obey the law. "There are some who want a second chance at a decent life," he said. "Giving them the information could be the key."

There is a particular Kafkaesque quality to the prospect that some sex offenders may need to get on the internet in order to learn that there is a law prohibiting them from getting on the internet.  Even more importantly, if a jurisdiction decides that it is important for sex offenders avoid certain areas or activities, it would seem also to be important for the jurisdiction to make sure sex offenders know these realities.  If a jurisdiction cannot afford to provide effective information to impacted persons about a new law, perhaps it cannot truly afford to have the new law in the fist instance.

May 15, 2010 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Friday, May 14, 2010

"New Victim Accuses Roman Polanski of 'Sexual Abuse'"

The title of this post is the headline of this remarkable new ABC News story, which adds another remarkable layer to the seemingly never-ending Roman Polanski sentencing saga.  Here is how the piece starts:

A British actress who starred in a Roman Polanski film charged today that the director "sexually abused" her when she was 16 years old in his Paris apartment.

The incident allegedly happened in 1982, four years after Polanski fled the United States to because he feared a California judge was going to send him to prison on charges he raped a 13-year-old girl.

"Mr. Polanski sexually abused me in the worst possible way when I was just 16, four years after he fled the U.S. to avoid sentencing for his crime," Charlotte Lewis, now 44, told reporters.  Four years later in 1986, Lewis starred in Polanski's comedy "Pirates."

Lewis did not provide any details of the alleged encounter, including whether she was given drugs or raped.  She did say there were "similarities" to the 1977 case, in which Polanski gave 13-year-old Samantha Geimer champagne and Quaaludes before raping and sodomizing her. "Mr. Polanski knew I was just 16 when he met me and forced himself on me ... in his apartment in Paris," she said.

Lewis did not report the incident to French authorities at the time, and said she came forward now only to provide additional information that a judge might consider if Polanski is extradited back to the United States.

"He victimized another child while a fugitive from justice....  The sentencing judge needs this information to make an informed decision," said Lewis' American lawyer Gloria Allred.  "The judge may consider predatory claims ... [which] could certainly have an impact on Polanski's sentencing."  Allred said Lewis had no plans at this time to sue Polanski and only came forward now that it appeared Polanski may soon return to the U.S. for sentencing

Though I have no interest at all in taking sides in the Polanski saga or in defending any aspect of Polanski's apparent affinity for under-age girls, I cannot help but find the timing of this breaking news to be notable.  Efforts to bring Polanski back for sentencing in California have been making headlines now for nearly a year, and yet only now are we learning about this important and potentially very significant new accusation of similar sexual abuse.  And, speaking of notable timing, I also cannot help but find interesting that Lewis starred in a Polanski movie four years after Polanski, according to Lewis, "sexually abused [her] in the worst possible way."

Let me be clear: I am not noting this timing to directly question Lewis's claims or to suggest in any way that women subject to sexual abuse, especially at the hands of a powerful man, would not have lots of reasons to avoid or delay reporting this abuse (and to continue associating with the abuser).  But it seems that this new allegation of long-ago sexual abuse would have been of great importance in the on-going legal dispute concerning Polanski's extradition, which started full-tilt last September and has already involved significant court rulings.  The goal of my comments above are to ponder (1) just why this significant accusation is coming out now, and also (2) whether the timing of this new accusation will be part of the discourse about its significance for Polanski's pending extradition and future sentencing.

May 14, 2010 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Why the Second Circuit's Dorvee reasonableness ruling could (and should) be so significant

The New York Law Journal has this new piece, headlined "2nd Circuit Faults Pornography Enhancements, Vacates Sentence," which reports on the significant Dorvee reasonableness ruling from earlier this week (basics here).  Because it only covers the basis, this NLYJ piece does not give a full sense of why the Dorvee ruling could be so significant.  I will try to provide a brief account in this post.

In the five years since Booker, circuit court have through their reasonableness rulings essentially turned the guideline range into what might be called a sentencing "safe harbor."  Though circuits have said only that within-guideline sentences will be presumed reasonable (and a few circuits have even resisted this formal presumption), for all practical purposes district judges know that decisions to impose within-guideline sentences will never be found substantively unreasonable.  Put differently, circuits have functionally treated a sentence within a properly-calculated guideline range as per se reasonable.  (There have been a few Ninth Circuit cases reversing within-guidelines sentences, but on quirky facts, and all other circuits have affirmed all within-guidelines sentences against many sensible substantive attacks.)

Now along comes Dorvee, which expressly states that the child porn guideline is beset with "irrationality" and that  "unless applied with great care, [this guideline] can lead to unreasonable sentences that are inconsistent with what § 3553 requires."  Slip op. at 16, 19.  The Dorvee opinion further explains that by "concentrating all offenders at or near the statutory maximum, [this guideline] eviscerates the fundamental statutory requirement in § 3553(a) that district courts consider 'the nature and circumstances of the offense and the history and characteristics of the defendant' and violates the principle, reinforced in Gall, that courts must guard against unwarranted similarities among sentences for defendants who have been found guilty of dissimilar conduct."  Slip op. at 19.  And the Dorvee opinion finishes up by reiterating that the child porn guideline is an "eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results."  Slip op. at 21 (emphasis added).

All this anti-guideline language in Dorvee, as well as the relatively aggravated facts involved in the Dorvee case (because the defendant seemed eager to commit a contact child sex offense), leads me to assert that now in the Second Circuit, district judges ought to view the child porn guideline as an inherently "unsafe harbor."  The Dorvee ruling, in my view, suggests that a district court must articulate a very strong and special reason to sentence within the child porn guideline in a downloading case for such a sentence to be upheld as substantively reasonable.  This reality makes Dorvee a huge deal for hundreds of child porn sentencing cases, especially if district courts outside the Second Circuit are influenced by the opinion.

More significantly, both the language and logic of the Dorvee need not and probably should not stop with just the child porn guideline.  Though many parts of Dorvee focus on unique aspects of the child porn guideline, there are other guidelines that tend to concentrate many offenders at or near the statutory maximum.  In particular, in all cases with sizeable loss amounts, the fraud guidelines have a tendency to place many defendants in the life sentence range (and beyond).  I suspect effective white-collar counsel in the Second Circuit (and perhaps elsewhere) will be quick to cite Dorvee to support arguments that the fraud guidelines, like the child porn guidelines "can easily generate unreasonable results."

May 14, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, May 13, 2010

Big changes to the sex offender registration provisions of the Adam Walsh Act proposed

A helpful reader forwarded to me an e-mail that summarizes big news concerning federal sex offender registration laws coming from DOJ today. Here is the text of that e-mail:

You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:

  • Gives jurisdictions discretion to exempt juvenile offenders from public website posting
  • Provides information concerning the review process for determining that jurisdictions have substantially implemented
  • Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only
  • Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA
  • Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations
  • Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting
  • Requires jurisdictions to have sex offenders report international travel 21 days in advance
  • Clarifies mechanism for interjurisdictional information sharing and tracking.

They are posted in today’s Federal Register. Interested parties have 60 days to submit comments. Find the document here.

May 13, 2010 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack