Saturday, March 20, 2010

"Rethinking Sex Offender Laws for Teenage Texting"

The title of this post is the headline of this new New York Times article.  Here is an excerpt:

In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer — known as “sexting” — have risked felony child pornography charges and being listed on a sex offender registry for decades to come.

But there is growing consensus among lawyers and legislators that the child pornography laws are too blunt an instrument to deal with an adolescent cyberculture in which all kinds of sexual pictures circulate on sites like MySpace and Facebook.

Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.

And on Wednesday, the first federal appellate opinion in a sexting case recognized that a prosecutor had gone too far in trying to enforce adult moral standards. The opinion upheld a block on a district attorney who threatened to bring child pornography charges against girls whose pictures showing themselves scantily dressed appeared on classmates’ cellphones.

“There’s a lot of confusion about how to regulate cellphones and sex and 16-year-olds,” said Amy Adler, a law professor at New York University. “We’re at this cultural shift, not only because of the technology, but because of what’s happening in terms of the representation of teen sexuality as you can see on ‘Gossip Girl.’”

March 20, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Thursday, March 18, 2010

Oklahoma legislature moving forward with capital child rape bill

As detailed in this article in Tulsa World, an Oklahoma Senate panel "on Wednesday passed a measure calling for the death penalty for certain sex offenders despite concerns that the legislation runs afoul of a recent U.S. Supreme Court ruling." Here's more:

House Bill 2965 would allow for the death penalty for someone convicted of raping a child age 6 or younger if the perpetrator had been convicted of a felony previously for which the punishment included a term of 10 years or more in prison.

The measure would not apply to a parent, guardian or someone who has custody of a child. Rep. Rex Duncan, R-Sand Springs, the measure's House sponsor, said that in child-custody cases, all sorts of things can be alleged.  The exclusion was designed to prevent people involved in custody cases from facing the death penalty based on possibly false accusations.

Sen. Richard Lerblance, D-Hartshorne, said the measure runs counter to a U.S. Supreme Court decision that struck down a Kentucky law that imposed the death penalty for the rape of a child. In that 2008 decision — in Kennedy v. Louisiana — the court held that a death sentence for someone who raped but did not kill a child and who did not intend to assist another in killing the child was unconstitutional.

Lerblance said that although raping a child is "dastardly," the nation's high court has ruled on the issue.  He said the bill is plainly unconstitutional and that lawmakers have sworn to uphold the U.S. Constitution.  "How in good conscience can you ask us to vote on a bill like this?" he asked.

Sen. Anthony Sykes, R-Moore, the measure's Senate sponsor, said the makeup of the court has changed since the 2008 decision.  Duncan added that the measure is more narrowly written than a 2006 Oklahoma law that also was struck down by the 2008 high-court ruling.

I have no problem with the Oklahoma legislature or any other elected body continuing to try make certain forms of child rape subject to the death penalty despite the Supreme Court's ruling in its 2008 Kennedy v. Louisiana decision.  I do not think the changed composition of the Supreme Court since the 2008 fully justifies such action; rather, the fact that the Supreme Court has persistently asserted that the Eighth Amendment is responsive to "evolving standards of decency" supports and justifies elected bodies expressing through legislation and other means their current view of these constitutionally significant standards.

Indeed, I think the passage by Oklahoma and a number of other states of focused capital child rape legislation ought to prompt the Supreme Court to reconsider its Kennedy ruling.  After all, the Supreme Court has repeatedly reversed prior precedent to narrow the reach of the death penalty when more state legislatures have enacted laws that narrow their own capital statutes.  Both logic and sound constitutional jurisprudence suggests that the Court should be prepared to reverse prior precedent to expand the reach of the death penalty when more state legislatures have enacted laws that expand their own capital statutes.

March 18, 2010 in Death Penalty Reforms, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Wednesday, March 17, 2010

Third Circuit upholds bar on sexting prosecution threatened by state DA

The National Law Journal has this new piece, headlined "3rd Circuit Bars Prosecution Threat for Teen 'Sexting': Panel also found former DA had violated parents' rights by usurping their roles," which reports on this notable ruling today from the Third Circuit. Here is how the piece starts:

In the first case ever to challenge the constitutionality of prosecuting teens for "sexting," a federal appeals court has upheld an injunction that barred a Pennsylvania prosecutor from bringing child pornography charges against girls who refused to attend a class he had designed to educate youths about the dangers of sexting.

In Miller v. Mitchell, a unanimous three-judge panel concluded there was no probable cause to bring any charges against the girls who had appeared in various states of undress in photos shared among a group of teens.  Missing from the prosecutor's case, the court said, was critical evidence about who exactly had transmitted the images.

As a result, the court said, any decision to prosecute the teens after they refused to take the class would therefore be retaliation against them for asserting their First Amendment rights.

Significantly, the panel also found that former Wyoming County District Attorney George Skumanick Jr. had violated the rights of parents by usurping their roles.... "An individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles," 3rd Circuit Judge Thomas L. Ambro wrote in an opinion joined by Judges Michael A. Chagares and Walter K. Stapleton.

The full opinion in Miller v. Mitchell is available here, and Eugene Volokh has a lengthy discussion of the ruling in this post.

UPDATE:  How Appealing provides here lots of links to lots of media coverage in Miller v. Mitchell.

March 17, 2010 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, March 16, 2010

New academic piece discussing child porn sentencing in an internet age

Professor Jelani Jefferson Exum has this notable new piece up on SSRN under the title "Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses."  Here is the abstract:

Sexual exploitation of children is a real and disturbing problem.  However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has its problem as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame.  At the heart of this Article are the forgotten players in the discussion – the computer and the internet – and their role in changing the realities of child pornography possession.  This Article argues that the computer and internet are important factors in understanding both the victimization of the children portrayed in the illegal images and the formulation of appropriate punishment for those who view and possess such images.  However, little attention has been paid to the effect computer behavior and the internet have on the actual manner in which offenders possess child pornography and little thought given to what punishment is warranted given the characteristics of that possession. While some district judges are thinking about these issues when they sentence, they have little guidance from experts in the fields of punishment and sexual crimes because sentencing guidance provided to judges has largely been restricted to the Federal Sentencing Guidelines. Unfortunately, in promulgating Guidelines for child pornography possession offenses, the United States Sentencing Commission has largely treated child pornography possession offenses as traditional possession crimes, and has been increasingly influenced by Congress’ response to political pressure to severely punish such offenders without regard to the stated purposes of punishment.  Now that the Guidelines are no longer mandatory, many judges are forgoing the Guidelines’ advice when it comes to sentencing the possessors of child pornography and forging out on their own. Critics say that those judges are being too lenient. While there may be truth to that argument, what is even more apparent is that judges are ill-equipped to respond to the punishment needs of this group of offenders, critics of lenient sentences are discounting the faults in the Guidelines, and the computer and internet have been causing all of the controversy without being a big part of the discussion.  A system reboot is in order.

This Article recognizes that child pornography possessors should be punished for the harm and danger that the offense creates and the exploitation that the offense represents.  Ultimately, though, this Article argues that any enhancements to child pornography possession sentences should reflect aspects of the offense that actually make the offender more harmful than the typical child pornography possessor.  To make this argument, the Article will introduce the genuine problem of the sexual exploitation of children that this country faces.  It will explain the specific federal crime of child pornography possession and the methods taken to commit the crime.  Further, the Article discusses the sentencing of child pornography possessors, explaining the current Federal Sentencing Guidelines approach, the rebellion of district judges against the Guidelines’ advisory sentencing ranges, as well as the criticism levied at those judges.  After exposing the system failure that requires a rebooting of the sentencing approach, the Article proposes a new manner of thinking about child pornography possession as a computer crime that is very different from ordinary possession crimes.  This new approach seeks to understand the internet and computer in order to develop a system of punishment that will at least move toward achieving the congressionally-identified goals of punishment. Ultimately, it is not the purpose of this article to suggest an appropriate range of sentences for child pornography possession; nor is the goal necessarily to have the Guidelines ranges for child pornography possessors reduced.  Rather, this Article emphasizes that finding a method of giving meaningful guidance to district judges in order to appropriately punish child pornography possessors is necessary, and that this is impossible to do without making the punishment fit the realities of internet and computer crimes.

Some related prior federal child porn prosecution and sentencing posts:

March 16, 2010 in Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Georgia Supreme Court upholds sex offender registration for non-sex convictions

Rednack Thanks to How Appealing, I see that the Supreme Court of Georgia, in Rainer v. Georgia, No. S09A1900 (Ga. Mar. 15, 2010) (available here), yesterday upheld a provision of the state's sex offender registry law that requires the registration of certain persons not convicted of sex crimes.  This Atlanta Journal-Constitution article explains:

The law, said to be one of the toughest in the nation, allows the state to keep a tight leash on child molesters, rapists and other sexual predators after they have served their prison time. But it also requires anyone convicted of kidnapping or false imprisonment of a minor to register as a sex offender regardless if a sexual act was committed.

The challenge was brought by Jake Rainer, who committed a drug robbery in Gwinnett County in May 2000. Rainer and his co-defendants picked up a 17-year-old girl who was going to sell them some marijuana. Instead of making a deal, they drove her to a cul-de-sac, took the pot and abandoned her.

Rainer pleaded guilty to robbery and false imprisonment.  Because of the latter conviction, he now has had to register as a sex offender.  This means he cannot live or work within 1,000 feet of places where children congregate, such as parks, schools and swimming pools.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, "are regulatory, not punitive, in nature." "Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is 'sexual' in nature before being required to register," Melton wrote....

Writing in dissent, Chief Justice Carol Hunstein said that although registration as a sex offender may not be considered punishment, "it is no mere administrative formality or minor inconvenience." Hunstein added that an offender who commits a sex crime while kidnapping or falsely imprisoning a victim "would clearly be covered" by other provisions of the registry law.

Department of Corrections records show there are dozens of offenders like Rainer who must register as a sex offender even though they committed no sex crime.

Legislation making its way through the state House may give such offenders a way to be released from the law's tough residency and employment restrictions. House Bill 571, which has the support of key lawmakers, allows offenders to petition Superior Court judges to remove them from the registry.

I am thinking that maybe Jeff Foxworthy ought to consider doing some public service announcements in Georgia that are a variation of his famous "You might be a redneck..." routine.  Specifically, I think Foxworthy might help get the word out with lines like:

March 16, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Friday, March 12, 2010

"Michigan board reverses parole for sex offender"

The title of this post is the headline of this article from the Toledo Blade, which might have also been reasonably headlined "Chelsea King case has echo effect."  Here are the basics:

The Michigan parole board has reversed the decision to grant parole to convicted sex offender Rex Layman, a former Lambertville man who was convicted in 1998 of child rape, the Monroe County Prosecutor's office said Wednesday.   The full 15-member Parole and Commutation Board took unprecedented action to review Layman's scheduled release after objections were filed by Prosecutor William Nichols.

"We are pleased that the parole board took a second look at this, reversed the decision, and found that he is dangerous to society and a threat to public safety.  We believe the public is safer without him on the streets," said Michael Brown, an assistant county prosecutor.

Layman, 61, has served nearly 12 years of the 8 to 30 year prison sentenced he received for sexually abusing two 8-year-old girls in 1997. A three-member panel of the state parole board granted parole release to Layman after reviewing his case last August.   Mr. Brown said the parole board ordered that Layman should remained locked up for 24 months.

March 12, 2010 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 10, 2010

Are there First Amendment problems with barring sex offenders from social media sites?

The question in the title of this post is prompted by this piece from the journalism students at Northwestern University’s Medill school. The piece is headlined "New law banning sex offenders from social networks a free speech flop?", and here is how it starts:

Peter Chapman, a 33-year-old convicted rapist, was jailed for life Monday in England for killing Ashleigh Hall, 17, in October.  Chapman lured the teenager by putting up a phony Facebook profile posing as a teenage boy.

Illinois passed a law that took effect Jan 1. to target internet predators like Chapman.  The law makes it a felony for registered sex offenders to use social networking.  “Predators are real and dangerous,” said Rep. Darlene Senger, a co-sponsor of the public act.  “In order to become a registered sex offender, you’re not just taking a picture of someone, you’re doing something criminal.”

Senger gave the example of a 42-year-old sex offender who tried to target a 14-year-old Naperville girl by posing as a teenage boy on Facebook.  The girl’s mother was suspicious and alerted law enforcement, which thwarted their potential meeting.

However, the law treads on free speech rights if the crimes that got the offenders in trouble were not clearly related to social media, said David Hudson, a First Amendment scholar who teaches at Vanderbilt University.

There is a risk of the law going overboard and seriously violating the First Amendment if it applied to all sex offenders, Hudson said.  “It restricts a whole range of media and [offenders] could be using social networking as a medium to communicate to family and friends,” he said.

March 10, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, March 09, 2010

"Restitution for Child Pornography Victims"

The title of this post is the headline given to this local public radio show on an interesting cutting-edge topic which I have covered at some on this blog.  Here is the set up:

Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.

Guests:

Ernie Allen, President and Chief Executive Officer of the National Center for Missing & Exploited Children and the International Centre for Missing & Exploited Children

Steve Kelly, Attorney with the Maryland law firm Miles & Stockbridge and Commissioner on the Maryland Criminal Injuries Compensation Board

Jonathan Turley, Professor of Public Interest Law at George Washington University; practicing defense attorney

Some related recent federal child porn prosecution and sentencing posts:

March 9, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (9) | TrackBack

Saturday, March 06, 2010

Huff Post commentary urging stiffer sentences and chemical castration for sex offenders

Alex D'Adrea has this notable new commentary at The Huffington Post, which is headlined "Sexual Predators and Their Threat to Society: Our Laws are Not Enough."  Here are excerpts:

From state initiatives like Jessica's Law and Megan's Law to federal initiatives, it is clear sexual offenders and their acts are on everyone's mind.  Alabama Representative Arthur Payne who just had a law passed disabling sex offenders from working in public transit situations where children are accessible.  This, however, is not enough. Just take a look at this week's Chelsea King case, where sex offender John Albert Gardner III allegedly raped and took an innocent high school students life.  He was convicted once before for sexual offenses and let out after only five years of imprisonment.  Sexual predators are often repeat offenders, and our laws allow them to go back out on the streets.

Chelsea King is emblematic of your sister, daughter, mother, or friend.  Her situation happens by the numbers every day in America.  Our laws are not enough.

My Proposal: Streamline state and federal laws into a comprehensive sexual predatory law for perpetrators who commit sexual violence against minors.  This means creating a law that evokes fear so great within predators.

1) Sex offenders who commit crimes against children need longer sentencing.  No individual who has sexually assaulted a child should be granted release after only five years like in the case of John Albert Gardner.  Pedophiles show time and time again that most are repeat offenders.

2) Chemical castration should occur. This is not a permanent castration. It is a chemical that severely lowers sexual drive in predators.

I understand that my second point is controversial, and may be looked at as unconstitutional, however when standing back to asses these individuals and the acts they commit, this measure seems appropriate. Several US states already enforced similar measures.  In 1996 California became the first state to enact legislation providing for chemical castration of certain sex offenders.  About 6 months later, in 1997 the Florida legislature overwhelmingly enacted chapter 97-184 opening the door for chemical castration of sex offenders.  

The Florida statue mandates court-ordered weekly injections of a sex-drive reducing hormone to qualified repeat sex offenders upon release from prison, and may be administered to first time offenders. The statue authorizes a trial judge to sentence any defendant who is convicted of sexual battery to receive medroxprogesterone acetate or MPA, the chemical castration drug. If the defendant is convicted of sexual battery and has a prior conviction for sexual battery, the trial court is required to impose a sentence of MPA administration....

France, along with a number of other European countries, including Sweden and Denmark, already allows the use of drugs to lower the sex drive of offenders who agree to it. Prime Minster Fillon feels "we have to look at how, as a part of surveillance and control measures after someone leaves prison, we might make this more restrictive if necessary. It's a subject we are working on and we will make proposals to parliament in that direction." In September of 2009 Poland approved a law making chemical castration mandatory for some pedophiles. I feel the United States should take a more aggressive approach to the sentencing of convicted pedophiles, similar in the vein of Poland.

One of the nation's leading authorities on MPA, Dr. Fred Berlin, founder of the Biosexual Psychological Clinic at the John Hopkins Hospital, believes that prevailing research demonstrates that MPA will drastically reduce the rate of recidivism, or reversion to criminal behavior, of some sex offenders after they are released from prison.  Most medical experts agree that, under proper conditions, the drug can be an effective rehabilitation tool for a narrow category of sex offenders.

I hope that this will inspire a grassroots movement to enforce harsher punishments on convicted pedophiles, as new measures must be taken in order to protect our children.

When proposals and rhetoric like this is emerging from a liberal website like Huff Post, it may be only a matter of time before these kind of ideas take root in formal legislation. 

As regular readers may know, I tend to be open to the idea of much broader use of "technocorrections" like chemical castration if and when there is a reasonable basis to believe such novel punishments might be more effective than prison to reduce recidivism.  As noted in prior posts, however, I am not confident that there have been many (any?) rigorous modern assessments of sex offender castration in the United States, even though chemical castration as a form of alternative punishment has been considered (and used?) widely throughout the nation for well over a decade.

Some older and newer related posts on chemical castration:

March 6, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (45) | TrackBack

Friday, March 05, 2010

"Should registry log teen sex offenders?"

The question in the title of this post is the headline of this article from the Jackson (Tennessee) Sun.  Here is how it begins:

State legislators expect a strong debate about whether juveniles' names, photographs and other information should be put on a state registry when they are convicted of violent sexual crimes.

State Rep. Debra Young Maggart, R-Hendersonville, introduced a bill last month that would require youths 14 or older to be placed onto a public registry for violent sexual offenses such as rape or attempted rape. The bill, House Bill 2789, also states that when the offenders turned 18, they would continue to have a record as an adult and would be placed on the adult registry.

Some restrictions that apply to adult registered sexual offenders would not apply to the juveniles until they turned 18, according to the bill. For example, adult offenders whose victims were minors can't live, work or attend treatment programs within 1,000 feet of a school, child-care facility, or public park or recreation area.

Supporters of creating a juvenile sex offender registry tout it as a way to make the public aware of violent criminals. Critics of the proposal say many juvenile offenders can be reformed and the bill could harm their ability to live a normal life. An example they cite is potential problems with finding a job.

Rep. Johnny Shaw, D-Bolivar, said he sees many positives about the bill but also has some concerns. He said he'd have to see what amendments are made to the bill before deciding whether he'd vote yes or no. "First and foremost, a crime is a crime, and a sexual offender is a sexual offender whether they are a juvenile or an adult," said Shaw, who serves on the House of Representatives' Children and Family Affairs Committee. "What I'm concerned about is in realizing this out, would this mar the reputation of a child forever?"

March 5, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Thursday, March 04, 2010

Notable Second Circuit ruling about inmate classification as a sex offender

Earlier this week, the Second Circuit issued an interesting ruling in Vega v. Lantz, No. 08-4748 (2d Cir. Mar. 2, 2010) (available here), in which the panel reverses a district court's ruling granting relief to a Connecticut inmate who complained about his designation as a sex offender based on the fact that he had been acquitted of sexual assault (though convicted of first-degree assault and kidnapping) after horribly abusing a "sixteen-year-old girl, with whom he had a sexual relationship, when he was twenty-nine-years old."  Here is how the opinion begins:

Defendants-appellants, who are prison officials, appeal from a judgment of the United States District Court for the District of Connecticut (Dorsey, J.), granting-in-part plaintiff-appellee Joe Burgos Vega’s motion for summary judgment.  Vega, a prison inmate, sued Connecticut prison officials alleging, among other things, that they violated his liberty interests and procedural due process rights arising under the Fourteenth Amendment by failing to afford him a hearing before assigning him an inmate classification that, in his view, was tantamount to classifying him as sex offender.  The district court granted Vega summary judgment and injunctive relief on this claim and dismissed the remaining ones.  Vega v. Lantz, No. 3:03-cv- 23 2248, 2008 WL 3992651 (D. Conn. Aug. 25, 2008). For the reasons set forth below, we reverse.

March 4, 2010 in Prisons and prisoners, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Chelsea King tragedy heats up politics around sex offender monitoring

This new ABC News piece, which is headlined "Chelsea King Case: Outrage Over Sex Offender Monitoring Reaches White House: John Walsh Said President Obama Vowed to Fund Federal Sex Offender Law," highlights that the latest crime tragedy is turning up the political heat concerning sex offender monitoring. Here are excepts:

John Walsh, host of "America's Most Wanted," said he met with President Obama Wednesday to discuss child protection laws and funding for the Adam Walsh Act, signed three years ago by President Bush. The law promised to create a national registry of sex offenders and keep closer track of the most violent of them, but it did not come with the funds needed to carry it out.

"President Obama said yesterday, 'As the father of two girls, John, I will get the Adam Walsh law funded,'" Walsh told "Good Morning America" today....

King, a well-liked honors student, vanished after heading out for a jog in a semi-rural San Diego County park. Her body was found less than a week later, buried in a shallow grave near the shore of Lake Hodges, about a half-mile from her car.

But the outrage grew with the arrest of Gardner, a known violent sex offender who has since been charged with the December assault and attempted rape of 22-year-old Candice Moncayo in the same park where King's body was found.

"I think everyone asks the same question," Walsh said. "Why was this animal out on the streets?"...

"The law should be once you offend, you're done, you're toast, you're in the slammer or you are executed," one angry woman said as she stood among protestors outside the courthouse.

Former San Diego County District Attorney Paul Pfingst was slightly more objective. "I am of the view that people who do harm to teenage girls should go to Gitmo and stay there for the rest of their lives and be waterboarded," he said.

Related post on Chelsea King case:

March 4, 2010 in Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (42) | TrackBack

Tuesday, March 02, 2010

Prosecutors urged lighter sentence in 2000 for sex offender suspected in missing California teen case

A helpful reader forwarded to me this new AP story, which is headlined "Man in Calif. teen case got light sentence in 2000," that provides an interesting sentencing backstory to the latest missing teen case generating the usual cable crime news buzz. Here is how the piece begins:

A sex offender suspected in the disappearance of Chelsea King served only five years in prison for molesting a girl a decade ago after prosecutors rejected a psychiatrist's advice to seek a stiffer punishment, court documents state.

Prosecutors said in 2000 that John Albert Gardner III's lack of significant prior criminal record justified less than the maximum sentence for molesting a 13-year-old girl. They also said they wanted to "spare the victim the trauma of testifying."

The San Diego Union-Tribune said Tuesday that Gardner had faced a maximum of nearly 11 years in prison under terms of his plea agreement. Prosecutors urged six years — the sentence later ordered by a judge.

March 2, 2010 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Friday, February 26, 2010

"Wisconsin Teen Gets 15 Years for Facebook Sex-Extortion Scam"

The title of this post is the headline of this piece from Wired.  Here are the basics:

A Wisconsin teenager was sentenced to 15 years in prison Wednesday for an extortion scheme that had him tricking male classmates into sending them nude photos of themselves, then blackmailing them with exposure if they didn’t have sex with him.

In 2008, defendant Anthony Stancl, who was 18 at the time, posed as a girl on Facebook and tricked more than 30 male classmates into sending him photos of themselves.  According to court documents, authorities found 300 photos of underage males on his computer as well as video of some of the victims exposing their genitals and masturbating; some of the victims were 15 years old....

Stancl told the victims that he was an extortion victim himself and was being forced to have sex with them and photograph it in order to prevent other photos of himself from being exposed.  His attorney, Craig Kuhary, says that Stancl’s activity was prompted by anxiety over his sexual orientation and the alienation he felt after he was humiliated and outed by another student.  Stancl claimed he had been sexually assaulted by an upperclassman during his sophomore year.

February 26, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, February 24, 2010

Today's SCOTUS sex offender Ex Post oral argument transcripts

Thanks to a delay at LGA on my way out of dodge (and also my friends cut-and-paste and posting by SCOTUSblog), I now have a chance here to post in this space the transcripts of SCOTUS oral arguments today here for Carr v. United States (08-1301) and here for United States v. Marcus (08-1341).  I fear I won't have a chance to read these transcripts for a while, but perhaps readers can use the comments to note any important highlights.

February 24, 2010 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Ex Post Facto day for sex offenders at the Supreme Court

As detailed in this FOXNews report, which is headlined "Supreme Court to Hear Sex Offender Case Sotomayor Set Aside in Lower Court," today the Supreme Court hears argument in two cases dealing with sex offenders and the constitutional limits on prosecution resulting from the Ex Post Facto clause.  Here are the basics:

It's all about sex at the Supreme Court Wednesday when the justices hear arguments in cases involving a national sex offender database and the federal government's appeal of a lower court ruling setting free a man dubbed the S&M Svengali.

The case involving Glenn Marcus (aka the S&M Svengali) has drawn a bit of added interest because now-Justice Sonia Sotomayor was part of the three judge panel in New York that set aside a nine-year prison sentence.

Marcus was convicted of sex trafficking after encouraging women to participate in what the government describes as "violent sexual activity." He posted photos and videos from the encounters on a for-profit Web site called "Slavespace."

Following his conviction, a three judge panel of the Second Circuit U.S. Court of Appeals that included Sotomayor set aside the verdict saying some of the alleged bad acts took place before the 2000 Trafficking Victims Protection Act went into effect....

Wednesday's other case looks at a 2006 federal sex offender registration law which requires newly convicted offenders to sign up in an updated national database. In 2007, the Justice Department issued a requirement that people convicted of sex offenses before 2006 also register in the new database.

In 2003, Thomas Carr was convicted in Alabama of improperly touching a 14 year old girl. He then moved to Indiana where after getting into a fight (with no sexual connection) Carr was arrested and convicted for failing to register under the new law. He has appealed the conviction claiming the after-the-fact requirement violates the Constitution's Ex Post Facto Clause.

SCOTUSblog provides an overview of the Carr case in this new post, which is titled "SORNA and the Ex Post Facto Clause: Carr v. United States, Argument preview."  It also provides an overview of the Marcus case in this post, which is titled Interpreting the Ex Post Facto Clause: United States v. Marcus, Argument preview."

February 24, 2010 in Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Monday, February 22, 2010

"Ban pervs as supers: Schumer"

The title of this post is the (pitch-perfect?) headline from this story in today's New York Post, which documents the latest concern about the working habits of sex offenders. Here are the basics:

There ought to be a law against giving convicted rapists the keys to tenants' apartments, Sen. Charles Schumer said yesterday.  "The fact that these sex offenders have access to apartments where there are children present is beyond scary," Schumer said.  "We must take immediate action to stop it."

Schumer was reacting to a Post story about William Barnason, a registered, high-risk sex offender who works as a super at several Upper West Side buildings where tenants have said he tried to shake them down for sex in exchange for help with their rent.

Barnason, 57, who spent more than 14 years in prison for attacks on three Long Island girls, has access to keys for more than 50 units in three buildings.

Schumer unveiled proposed legislation outside one of the buildings that Barnason oversees.  The bill would prevent a sex offender from becoming a superintendent or manager in any multifamily apartment building across the country.

This longer article from the Epoch Times reports on some of Senator Schumer's additional comments in support of his new legislation:

"Unfortunately it’s completely legal for a convicted sex offender to become the superintendant or a building manager in any multifamily apartment building in New York, and the jobs almost always provide the offender with keys to the renters’ apartments in the buildings. Given the large number of sexual offenders in New York—there are 6,000—this is an issue that has to be dealt with immediately.”...

“There is no issue more important to New York than safety and security of our children and our homes. We just can’t allow sex offenders to have unfettered access to our apartments and our homes, but that’s what William Barnason, the super for these two buildings, had,” he said.

“My legislation will ban any sex offender from working as a superintendant and having keys to New Yorkers’ apartments without their explicit permission. Which means, in effect, it won’t happen. My bill builds on the work that is being done in New York and takes it nationwide.”...

Sen. Schumer said that not only do sex offenders often repeat their crimes after having served time for previous offenses, but also typically cross state lines, where the local law enforcement has no record of who they are. “They can be convicted of a sex crime in Idaho, they serve 20 years in jail, they get out of jail, and then they come to New York. Because when you cross state lines neither local law enforcement nor state law enforcement knows who you are and what you’re doing,” Schumer said. “I have led the charge in Washington [D.C.] to create a national registry to make sure that even when sex offenders cross state lines that local law enforcement and local communities know that they are here so that they can take the appropriate action.”

Schumer’s legislation would hold landlords, property managers, and property maintenance companies liable and subject to substantial fines for providing the keys of the residents to a sex offender without disclosing the convictions of the offender and obtaining signed consent from the tenant.

Despite all the talk of gridlock in Washington DC, I suspect Schumer's new sex offender bill has a real chance of generating bi-partisan support and finding its way into law.

February 22, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Tuesday, February 16, 2010

Lots worth reading in the latest issue of "Justice Research and Policy"

Via e-mail, I receive notice of the publication of the latest issue of the journal Justice Research and Policy. Here is the summary I received via e-mail of some of the articles that sentencing fans might be eager to check out:

This issue of JRP includes articles on: 1) predictors of recidivism among registered sex offenders; 2) situational aspects of sexual offending and their implications for residence restriction laws; 3) organizational approaches to drug law enforcement by local police departments: specialized drug units or multi-agency task forces; 4) racial integration in California men's prisons; 5) the impact of citizen oversight of policing on the incidence of lethal force.

February 16, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Monday, February 15, 2010

Six-month sentence for importing the wrong kind of comic books from Japan

Thanks to this post at How Appealing, I saw this interesting item on a Wired.com blog, which is titled "'Obscene' U.S. Manga Collector Jailed 6 Months."  Here are the particulars:

A U.S. comic book collector is being sentenced to six months in prison after pleading guilty to importing and possessing Japanese manga books depicting illustrations of child sex and bestiality. Christopher Handley was sentenced in Iowa on Thursday, almost a year after pleading guilty to charges of possessing “obscene visual representations of the sexual abuse of children.”

The 40-year-old was charged under the 2003 Protect Act, which outlaws cartoons, drawings, sculptures or paintings depicting minors engaging in sexually explicit conduct, and which lack “serious literary, artistic, political, or scientific value.” 

Handley was the nation’s first to be convicted under that law for possessing cartoon art, without any evidence that he also collected or viewed genuine child pornography.  Without a plea deal with federal authorities, he faced a maximum 15-year sentence.

Comic fans were outraged, saying jailing someone over manga does not protect children from sexual abuse. “I’d say the anime community’s reaction to this, since day one, has been almost exclusively one of support for Handley and disgust with the U.S. courts and legal system,” Christopher MacDonald, editor of Anime News Network, said in an e-mail....

The case began in 2006, when customs officials intercepted and opened a package from Japan addressed to Handley.  Seven books of manga inside contained cartoon drawings of minors engaged in sexually explicit acts and bestiality.

Additional information about this prosecution and sentencing can be found in this report from the Anime News Network, which is headlined "Christopher Handley Sentenced to 6 Months for 'Obscene' Manga."

Because I am not a First Amendment guru, I have no strong sense of whether Christopher Handley's prosecution and conviction for importing the wrong kind of comic books from Japan should be considered constitutionally problematic.  But, as a sentencing guru, I do have a strong sense that the threat of a much longer (guideline recommended?) sentence after any trial likely prompted Handley to plead guilty and to apparently forego whatever constitutional defenses he might have had available.

February 15, 2010 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Friday, February 12, 2010

Talk of feds taking sex offender tracking global

This article, headlined "Sex offender law could go global with California lawmaker's bill," spotlights a proposal to internationalize sex offender tracking.  Here are the details:

Megan's Law soon could go international. The law, named after Megan Kanka, a 7-year-old New Jersey girl who was raped and killed by a neighbor in 1994, requires convicted sex offenders to be registered with the government, making it easier to track their whereabouts. Their names can then be put into databases, allowing the public to do a quick online check to determine where offenders reside.

While the law now applies to all states, California Republican Rep. Dan Lungren is proposing a worldwide crackdown on high-risk sex offenders and sex trafficking.  Under his bill, convicted sex offenders would have to tell local law enforcement of their travel plans 21 days before leaving their country.  That information would then be shared with diplomatic officials in foreign countries, who could keep track of the offenders.  Lungren is already working with the Mexican government on the proposal.

February 12, 2010 in Sex Offender Sentencing | Permalink | Comments (20) | TrackBack