Friday, May 21, 2010

"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

Wednesday, May 12, 2010

Split New York high court ruling spotlights key post-Padilla issues

In an interesting split opinion in NY v Gravino, No. 77 (NY May 11, 2010) (available here), the New York Court of Appeals rejected yesterday claims about the import of a defendant failing to know certain significant "collateral" consequences of a conviction when entering a plea.  In so doing, the Gravino ruling spotlights some critical follow-up questions to the Supreme Court's recent Padilla ruling that an attorney's incompetent advice on immigration consequences of a plea could amount to ineffective assistance of counsel under the Sixth Amendment.

Here is how the majority opinion in Gravino gets started and a key final passage from the court's holding:

We hold that because they are collateral rather than direct consequences of a guilty plea, SORA registration and the terms and conditions of probation are not subjects that a trial court must address at the plea hearing. Put another way, a trial court's neglect to mention SORA or identify potential stipulations of probation during the plea colloquy does not undermine the knowing, voluntary and intelligent nature of a defendant's guilty plea....

We decide today that SORA registration and the terms and conditions of probation are not direct consequences of a plea -- in other words, that the judge's failure to mention them does not, by itself, demonstrate that a plea was not knowing, voluntary and intelligent. It does not necessarily follow, though, that non-disclosure is always irrelevant to the question of whether a court should exercise its discretion to grant a motion to withdraw a plea. There may be cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed.

Here is how the dissenting opinion in Gravino gets started and some key passages from its discussion:

Because I believe that SORA certification and subsequent registration and the restriction of contact with one's children as a condition of probation are direct consequences of a guilty plea of which a defendant must be informed to make that plea knowing, voluntary and intelligent, I respectfully dissent....

While it is true that Padilla dealt with the duty of counsel, rather than the duty of the courts, to inform a criminal defendant about deportation, the rationale employed by the Court in rejecting the direct/collateral consequence dichotomy applies with equal force in determining the voluntariness of a guilty plea where the court has failed to advise the defendant of SORA registration, which is also a civil penalty "difficult to divorce . . . from [a] conviction."...

Gravino's certification as a sex offender was an automatic and immediate consequence of her conviction for rape in the third degree.  Thus, I would hold that sex-offender certification is a direct consequence of Gravino's guilty plea and, without informing Gravino that she would be subject to SORA certification, her guilty plea cannot be said to "represent[] a voluntary and intelligent choice among the alternative courses of action open to" her (North Carolina v Alford, 400 US 25, 31 [1970]).

Similarly, I would hold that a condition of probation that prohibits defendant Ellsworth from living with his children is a most significant and direct consequence of his guilty plea.  I agree with the majority that "courts taking guilty pleas can not be expected to predict any and every potential condition of probation that might be recommended in the presentence report" (majority op., at 15).  It is hardly unforeseeable, however, that upon a conviction for course of sexual conduct with a child in the second degree, defendant would be forbidden, as a term of his probation, from living with or having contact with children, including his own.

Related posts on the recent SCOTUS Padilla ruling:

May 12, 2010 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, May 11, 2010

Major reasonableness ruling from Second Circuit in child porn downloading case

The Second Circuit handed down this morning a must-read panel opinion in US v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (available here), which a helpful reader described to me as "arguably the most significant one decided by any lower federal court since Booker."  I am not sure I think the the Dorvee ruling is quite that huge, in part because the "child porn downloading" context may limit its broader significance within and outside the Second Circuit.  Nevertheless, as these passages from the start and end of the opinion highlight, Dorvee is very important for lots and lots of reasons:

Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing....

District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.  While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee’s sentence stand.  We conclude that Dorvee’s sentence was substantively unreasonable and, accordingly, must be revisited by the district court on remand.

Once I have a chance to read the full Dorvee opinion closely, I will have a lot more to say about its likely import and impact.  For now, it is already interesting to speculate whether the Government might be moved to seek en banc or even cert review of this ruling.

May 11, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, May 07, 2010

Notable variations in state approaches to juve sex offenders

This new AP story, which is headlined "States vary on dealing with youth sex offenders," provides an effective review of the diversity in how different states deal with juvenile sex offenders. Here are excerpts:

When Ricky Blackman was 16, he pleaded guilty to having sex with a 13-year-old girl, and an Iowa judge ordered him to register as a sex offender. But if Blackman had lived in at least a half-dozen other states, his name would never have appeared on a registry because states are deeply divided on how to deal with the nation's youngest sex offenders.

Juvenile justice advocates want rehabilitation instead of registration, yet public safety experts argue children must be protected from predators, even if they are minors. The confusing array of rules for juvenile sex offenders persists despite a vast overhaul that was adopted four years ago to bring clarity and consistency to the nation's sex offender registration laws.

"It's a real bind for the states," said Michele Deitch, an attorney who teaches criminal justice policy at the University of Texas. "Do you want to comply with what could be poor public policy or risk not complying with the federal law? And there's no easy answer."

Twenty-one states currently require juveniles convicted of a serious sex crime to register with law enforcement, according to an Associated Press review of state laws and interviews with state officials.

In 19 other states, only juveniles convicted as adults or who move from a state that requires registration are required to provide their information to authorities. In the remaining states, the laws vary. In Nevada, for instance, a juvenile sex offender can petition a judge to set aside registration requirements.

In 2006, President George W. Bush signed a law requiring states to adopt a series of sex offender measures, including the registration of all juveniles who commit serious sex crimes such as abuse or rape. The law was designed to create a national sex offender registry and toughen penalties for those who fail to register.

Ohio is so far the only state to meet the new federal standards, but states have until July to comply so they can build up their online registries and ensure the information can be incorporated into the national database.

Of the 21 states that require juvenile sex offenders to register, at least four states do not publish all of their details online, such as photographs and home addresses.

Critics said young offenders will be more likely to reoffend because of the humiliation of being labeled a sex offender. "These kids can get better and here you are punishing them for life without offering any treatment. That to me is unethical," said Dr. Valerie Arnold, the interim chief of child and adolescent psychiatry at the University of Tennessee. "Even convicted murderers aren't put on a list like this."

It's unclear how many of the nation's estimated 686,000 sex offenders are juveniles. But a recent study by the University of New Hampshire Crimes against Children Research Center that found more than a third of those who sexually abuse children are juveniles. "It's a difficult balance," said Ernie Allen of the National Center for Missing and Exploited Children. "We're in favor of the rehabilitative ideal and targeting treatment for the youngest offenders, but many of America's offenders are kids — and they are committing very serious sex offenses."...

Those who want juvenile sex offenders on registries acknowledge the requirements are not ideal, but they say the benefits to public safety far outweigh the impact on a juvenile sex offender's psyche.

Supporters often refer to the case of Amie Zyla, who was sexually assaulted when she was 8 years old in Wisconsin by a 14-year-old family friend. She became a leading advocate of juvenile registration requirements when her perpetrator was sentenced to 25 years in prison after pleading guilty to later fondling two teen boys. "The simple truth is that juvenile sex offenders turn into adult predators," she said at a 2005 Congressional hearing. "Kids all over the country need the same kind of protection as in Wisconsin."

Yet there is a wide disparity in how states treat juvenile offenders. In Texas, where judges decide whether to put juveniles on the registry, lawmakers led a push several years ago to make it automatic. But the measure's sponsor, Texas state Rep. Jim McReynolds, said he abandoned the effort after concluding the new requirements would be too costly and may end up harming the juvenile offenders. "The more I began to look at it, the more I saw it was pretty doggone tough on juveniles," said McReynolds, who chairs the House Corrections Committee. He now favors more treatment.

In Maryland, powerful lawmakers are aiming to require those 14 and older who commit rape and other serious sex crimes to register. "Juveniles are treated as adults in other areas of the law," said Delegate Bill Frank of Baltimore County, one of the measure's sponsors. "And if a juvenile commits a first-degree rape, that juvenile should be required to register as a sexual offender."

The challenging question upon reflection is whether we ought to regard the state-by-state differences here as a healthy form of "laboratory of the states" federalism or instead as an unjust form of national sentencing disparity.  Any thoughts dear readers on whether we should be pleased or troubled by the state diversity found regarding juve sex offender law and policy?

May 7, 2010 in Offender Characteristics, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, May 06, 2010

NFL Hall of Famer Lawrence Taylor charged with rape of teenager in New York

This new AP story, which is headlined "Ex-NFL star Lawrence Taylor charged with NY rape," provides the latest sad and disturbing story at the intersection of sports stars and crime.  Here are the basics:

Pro Football Hall of Famer Lawrence Taylor was charged Thursday with raping a 16-year-old runaway in an encounter that police said was arranged by a man who beat her up before driving her to Taylor's suburban hotel room while she texted her uncle for help.

Taylor, the 51-year-old former New York Giant who has faced drug and tax evasion charges in the past, paid the girl $300 for sex in a Holiday Inn, where he was arrested early Thursday, said Christopher St. Lawrence, supervisor of the town of Ramapo.

Ramapo Chief of Police Peter Brower said Taylor was cooperative when police woke him up around 4 a.m. Taylor was arraigned Thursday on charges of third-degree rape and patronizing a prostitute. "I'm not that important," Taylor told a scrum of media after being released on $75,000 bail.

His attorney, Arthur Aidala, said Taylor is a "loving family man" who did not have sex with the teenager. "My client did not have sex with anybody," Aidala said. "Lawrence Taylor did not rape anybody."

Brower would not comment on whether Taylor knew the girl's age; third-degree rape is a charge levied when the victim is under the age of consent, which is 17 in New York. "Ignorance is not an excuse to an individual's age," Brower said....

Police said the girl was reported missing by her family in March and had been staying with a 36-year-old parolee, Rasheed Davis, in the Bronx. The two met a few weeks ago at a Bronx bus stop, NYPD spokesman Paul Browne said. "He chats her up. She explains she doesn't have a place to stay. He provides one," Browne said.

Davis, who was arrested on charges of unlawful imprisonment, assault and endangering the welfare of a child, then forced her to perform sexual favors for others, authorities said.

Early Thursday morning, Davis punched and kicked her, drove her to the hotel against her will and told her she had to have sex with Taylor, police said.  When she refused, Davis handed her over to Taylor, who sexually assaulted her, they said.  Taylor paid her $300, which she gave to Davis, police said.

On the way to Suffern, the girl sent text messages to her uncle spelling out what was happening, Browne said. The uncle then went to the NYPD, he said.

I find almost as disturbing as the facts of this case the New York state sentencing realities apparently surrounding the charges that LT is facing.  According to this New York Times article, for "the prostitution charge, a misdemeanor, he faces a year maximum in jail. The maximum sentence for third-degree rape, a felony, is four years."  

In other words, LT appears to be facing a maximum state sentence of no more than 5 years for raping a teenage prostitute.  (Meanwhile, under current federal sentencing statutes, a loner who simply downloaded via computer some images of this sex offense would be facing a mandatory minimum sentence of no less than 5 years simply for receiving these images.)  Perhaps there can and will be more charges forthcoming as the investigation unfolds.  But I find troublesome the notion that the allegations of rape here, if proven true, do not allow for a more significant sentence.

May 6, 2010 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (25) | TrackBack

Tuesday, May 04, 2010

Illinois on the verge of banning all sex offenders from all public parks

This local story from Illinois, which is headlined "Sex offender public park ban bill goes to governor," reports on the latest state restriction on sex offenders in the works. Here are the basics:

Passed by state lawmakers, legislation that would ban convicted sex offenders from stepping foot in any public Illinois parks now awaits Gov. Pat Quinn's signature.  The legislation, sponsored by State Sen. Kirk Dillard, R-Hinsdale, prevents all sexual predators and child sex offenders from being in or loitering within 500 feet of a public park.

Illinois currently prohibits sex offenders from being in or loitering within 500 feet of public recreational areas when children are present.  The new legislation would keep make it a crime to be near or enter a park at any time.

"Sexual offenders don't need to be hanging around public parks where there are lots of kids and lots of people walking or running alone," Dillard said recently in a press release. "Unfortunately, we've seen some terrible tragedies in public parks.  We need to keep these individuals out of areas where there is often limited oversight by law enforcement officers, as well as surroundings that offer seclusion."...

If signed by the governor, the new law would make the violation a Class A misdemeanor and boost any subsequent violation to a Class 4 felony.

May 4, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Friday, April 30, 2010

New Florida bill to criminalize sex offenders coming with 300 feet of places where children congregate

This new local article, which is headlined "Fla. Senate to vote on restricting sex offenders from within 300 feet of schools, parks," indicates that Florida is soon to have a new restriction on the conduct of sex offenders. Here are the basics:

Senators are set to vote Friday on a bill that would ban convicted sex offenders and predators from loitering or prowling within 300 feet of places where children congregate, such as schools, parks and playgrounds.

The proposed new law (HB 119), sponsored by Rep. Richard Glorioso, R-Plant City, would be enforceable 24 hours a day, statewide. A convicted sex offender or predator caught within the buffer zone would be subject to a first-degree misdemeanor, punishable by up to a year in jail.

House members unanimously passed the bill, 115-0, earlier this month.  Broward County commissioners unanimously approved an identical law Tuesday. The county ordinance is punishable by 60 days in jail or a $500 fine. Miami-Dade County approved the same zones earlier this year.

The move in Broward comes on the heels of outrage earlier this year over reports that a confessed child killer was hanging out in Stranahan Park, next to the main library in downtown Fort Lauderdale....

Sen. Dave Aronberg, D-Greenacres, had sought to include a provision in his version of the bill (SB 1284) that would repeal some of the restrictive residency requirements, which make it increasingly difficult for convicted sex offenders and predators to find places to live.

State law does not allow convicted sex offenders and predators to live within 1,000 feet of schools, playgrounds and parks, but many cities and counties have extended the areas to 2,500 feet. The result has created a statewide patchwork of restrictive zones. Two dozen Broward cities have passed their own residency ordinances.

Aronberg reluctantly withdrew his residency provision, which would have established a statewide 2,500-foot residency ban around schools and day care centers. The goal was to set a consistent standard and stop municipalities from expanding the restriction even more.  Sex offenders unable to find a legal place to live move onto the streets and fail to report their whereabouts to state authorities, Aronberg said.  "Sex offenders have been pushed underground," Aronberg said. "They go homeless, don't report and they roam our streets. This is a very dangerous situation. We need more standardization and we need to keep our streets safer."

April 30, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (20) | TrackBack

Tuesday, April 27, 2010

"FAMM Condemns Mandatory Life Sentence for NV Woman"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums in response the the remarkable Nevada sentencing story discussed in this prior post.  Here is an excerpt from the press release:

According to published news reports, a jury convicted Ms. Taylor, 34, of lewdness with a minor under 14 for forcing a 13-year-old boy to touch her breast through her clothing and soliciting him for sex.  Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.

"Based on what we've learned so far, we believe the life sentence handed to Ms. Taylor is a total travesty of justice," said Julie Stewart, FAMM founder and president.  "FAMM does not condone criminal behavior, especially where a minor is the victim, but no reasonable person can believe that the punishment fits the crime in this case.  Life sentences are usually reserved for murderers and repeat violent offenders."

"FAMM opposes mandatory minimum sentencing laws that carry disproportionate one-size-fits-all sentences and enormously expensive penalties.  Keeping Ms. Taylor in jail for the rest of her life could cost Nevada taxpayers well over $1 million.  This seems like a terrible waste of a life, and limited taxpayer resources," concluded Stewart.

April 27, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Eleventh Circuit rejects various constitutional challenges to federal child porn convictions

The Eleventh Circuit has a notable ruling today in US v. Paige, No. 09-13067 (11th Cir. Apr. 27, 2010) (available here), which rejects various constitutional challenges to various federal child porn convictions. Here is how the opinion begins:

Robert D. Paige appeals his convictions for permitting his minor child to engage in sexually explicit conduct for the purpose of producing child pornography, in violation of 18 U.S.C. § 2251(b); and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He also appeals his 180- month total sentence.  Paige argues that § 2251(b) is facially unconstitutional, because Congress exceeded its Commerce Clause authority in enacting the statute.  He also argues that both §§ 2251(b) and 2252A are unconstitutional as applied in his case, because of an insufficient nexus between his conduct and interstate commerce.  Finally, Paige argues that applying 18 U.S.C. § 2251(e)’s 15-year statutory minimum sentence violated the separation of powers doctrine. For the reasons set forth below, we affirm.

April 27, 2010 in Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Triple-digit sentence for child molester

In case anyone was concerned that only white-collar offenders received triple-digit sentences, this local story about a state sentencing of a child molester should provide a useful reality check.  Here are excerpts of note from the story:

Receiving what could be one of the longest non-homicide sentencings in Bedford County history, Greg Allen Gibbs Sr., 32, was sentenced Monday to 120 to 240 years in prison for committing sexual offenses against children.

Bedford County District Attorney William Higgins said he was "very happy" with Monday's sentencing. "This is a chance where the judge took advantage of an opportunity to take a child sex offender off the streets," Higgins said.

Gibbs, formerly of Mercer, was found guilty of 29 charges in December after a two-day trial and two hours of deliberation. According to testimony from Gibbs' wife, Tammy, she and her husband demonstrated sexual acts to three children, all younger than 10, and instructed the minors in how to perform explicit sexual acts with each other.

Bedford County President Judge Daniel Howsare also found Gibbs to be a sexually violent predator under Pennsylvania's Megan's Law. Howsare made the ruling upon the recommendation of Herbert Hays, a member of the Pennsylvania Sexual Offenders Assessment Board....

Tammy Gibbs pled guilty in 2008 to three counts of endangering the welfare of children and served time in the Bedford County Prison from August 2007, when the pair was arrested, to February 2009. She aided in her husband's prosecution.

Higgins argued against concurrent sentences, saying Gibbs should be punished for each of the 29 separate and distinct criminal offenses. "The defendant should not be afforded a bulk discount for the multitude of depraved acts," Higgins said.

The maximum sentence recommended by the prosecution was 482 years.  Higgins was pleased nonetheless.  "The bottom line is that this sexually violent predator, Greg Gibbs, will never have access to children again, and absent a medical miracle, he will die behind bars," he said.

Though the crimes involved here are horrible, I cannot help but be a bit amused by the reporting of this sentencing.  That the sentence of 120 to 240 years in prison was less than half of what the prosecution requested is remarkable, as is the prosecutor's off-handed suggestion that the defendant here might outlive his triple-digit prison sentence with the help of a medical miracle.

April 27, 2010 in Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Thursday, April 22, 2010

Some notable new developments in the Polanski prosecution

As detailed in this AP article, "An appeals court on Thursday denied a petition by Roman Polanski's victim to dismiss the three-decade-old sex case against the director."  Here's more:

The California Second District Court of Appeal denied the petition by Samantha Geimer without comment. 

Geimer's attorney petitioned the court on March 23 to dismiss the case against Polanski, arguing recent changes to California's constitution gave her more rights as a victim to influence the case. "She is a person who is harmed by the maintenance of the prosecution and she wants it to end," Geimer's attorney wrote in the petition for dismissal. "She has not been treated fairly."

Prosecutors argued in a filing last week that voters' decision in 2008 to include a victim's bill of rights in the state's constitution didn't grant Geimer or other crime victims the authority to end prosecutions.

Thursday's ruling is unlikely to have any immediate bearing on Polanski's status.  The Oscar-winning director remains on house arrest at his chalet in the Swiss resort of Gstaad.  The appeals court has not yet ruled on another petition his attorneys filed earlier this year, records show.

Though this ruling is not unexpected, I was somewhat suprirsed by this news report, headlined "Roman Polanski asks President Obama for clemency." Here are the details:

French President Nicolas Sarkozy has hand-delivered a letter to President Obama from fugitive director Roman Polanski, according to a new report. The Daily Beast website claims a French political magazine has published a report stating that Polanski made the private plea for clemency.

The website writes: “In an astonishing act of backroom international diplomacy, French President Nicolas Sarkozy hand-delivered a letter from fugitive Oscar-winning filmmaker Roman Polanski to President Barack Obama last week on the sidelines of the international anti-nuke proliferation summit in Washington, according to a small and little-noticed article embedded in the prestigious French political magazine, L'Express.”...

The letter, which is not directly quoted in the L'Express article, is said to suggest that the two months the aging director spent in a Swiss prison, in addition to the 47 days that he spent in detention in California in 1977, should suffice for the crime of unlawful sexual intercourse he pled guilty to.

April 22, 2010 in Celebrity sentencings, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack