Wednesday, August 17, 2005

More politicians participating in sex offender panic

A few weeks ago, I noted here that the on-going social panic over sex offenders is finding expression in new "get-tough" sex offender legislation and proposals emerging at federal, state and local levels.  This week, California Governor Arnold Schwarzenegger is just the most high-profile politician jumping on this "tough-on-crime" bandwagon:

All of these articles, and many of the other recent stories of new sex offender laws and proposals archived here, reinforce my often-stated concerns about criminal justice policy being unduly driven by headline-making anecdotes of horrible individual cases (even in other states) rather than by refined data-driven policy analysis.  (In this astute post on the California bills, TalkLeft comments that "the surest way to tell a politician is in trouble is when all of a sudden he or she jumps on the 'get tough on criminals' bandwagon.")

Interestingly, some of the articles linked above note the potential high cost of proposals like lifetime GPS monitoring of sex offenders.  As has been true in other "tough-on-crime" cycles, economic realities will likely serve as the only brake on these sorts of politically-driven "get tough" sex offender initiatives.

UPDATE:  Thanks to this thoughtful post by Gideon, I see that my interest in refined data-driven policy analysis has subject me to some unkind words in this post from Tom at Confutatis Maledictis.  Tom suggests I need "a foray out of the ivory tower," but his post, much like a lot of the rhetoric coming from many politicians these days, falls prey to the same sort of anecdote-driven assumptions without addressing deeper realities. 

Tom claims that "it has been empirically demonstrated that [sex] offenders are the least amenable to rehabilitation and the most likely to re-offend," and he then cites to two recent high-profile cases to support this broad assertion.  But a comprehensive sentencing commission report on these issues from Tom's home state of Virginia spotlights a far more nuanced reality because not all sex offenders are created equal.  The data show that the reoffense and rehabilitation story for a small group of high-risk offenders is disconcerting, but for other offenders the reality is much more encouraging.  (This article, entitled "New hope for sex offender treatment," from the American Psychological Association discusses these issues effectively.)

Consider, for example, this recent Washington State Study, reporting that "sex offenders re-offend at lower rates than those convicted of other felonies.  After five years, 15% of sex offenders return to prison for new offenses compared to 43% of offenders convicted of property crimes."  Also consider this data from the Texas Department of Health State Services which reports not only lower sex offender recidivsm rates, but also that "research and clinical reports have begun to demonstrate that a number of treatment methods are effective in modifying some forms of sexual deviance."  The data in this area are subject to many assessments, but my chief fear is that politicians are motivated more by polling data than by reoffense and rehabilitation data when they develop the latest "tough-on-crime" campaign.

Tom suggest I want to "prevent the people from protecting themselves and their children," but that could not be farther from the truth.  Rather my goal is to push the public dialogue toward sound data-driven analysis so that we get effective policy reforms rather than hollow rhetoric and cost-ineffective proposals that only distract from doing the real, challenging work required for effective sentencing and corrections policy-making.  I think that "the hard working people who just want to ensure their kids' safety" deserve nothing less.

ANOTHER UPDATETom at Confutatis Maledictis has added a thoughtful addendum to his original post which articulates effectively the view that, because of the potential harms of sex offenses, he would rather risk significantly over-punishing some sex offenders than risk additional crimes.  I agree with a lot of the sentiments expressed in Tom's addendum, though I fear the tone and approach reflected in Tom's original post fosters an environment in which, as reported here by Gideon, private citizens feel emboldened to take matters into their own hands by "slaying and dismembering a convicted sex offender."

August 17, 2005 in Sex Offender Sentencing | Permalink | Comments (20) | TrackBack

Wednesday, August 03, 2005

Great blog debate over residency restrictions

A wonderful blogsphere debate has developed over the constitutionality of sex offender residency restrictions (which, regular readers know, was the subject of major recent rulings by the Eighth Circuit and the Iowa Supreme Court).  Lior Strahilevitz kicked off the debate with this post at PrawfsBlawg, which prompted this response from Will Baude at Crescat, which led to this reply from Lior.  Be sure to read the comments, too, since they enhance the debate greatly.

Since my constitutional expertise does not go much beyond the sentencing field, I am disinclined to weigh in on the merits of the debate.  But I am inclined to highlight how this exchange amplifies my recent points in this guest-post at PrawfsBlawg that blogs can help fill a scholarly gap created by the modern realities of traditional law reviews. 

August 3, 2005 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Friday, July 29, 2005

Iowa Supreme Court upholds broad sex offender residency restrictions

Today the Iowa Supreme Court in State v. Seering, No. 34 / 03-0776 (Iowa July 29, 2005) (available here) upheld the state's broad residency restriction on sex offenders.  Here is the introduction and conclusion from the opinion, which insubstance echoes the Eighth Circuit's similar ruling about the same law in Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (discussed here):

In this appeal, we consider the constitutionality of Iowa's statutory prohibition against convicted sex offenders living within two thousand feet of an elementary or secondary school or child care facility.  The appellee, a convicted sex offender, brought a successful constitutional challenge to the statute in the district court. The State appeals from the district court’s ruling.  For the reasons that follow, we reverse and remand this case for further proceedings consistent with this opinion....

We conclude Seering has suffered no deprivation of his federal or state constitutional rights related to substantive and procedural due process, ex post facto laws, self-incrimination, or cruel and unusual punishment.  We also observe that the United States Eighth Circuit Court of Appeals recently rejected similar challenges to section 692A.2A under the Constitution of the United States.  See Doe, 405 F.3d at 723. This opinion is consistent with our approach and supports the conclusion we reach today.

This is an interesting and important opinion that seems likely to just add fuel to the on-going sex-offender panic.  Indeed, just earlier this morning, this story from New Jersey noted that a local township lawyer cited to the Eighth Circuit's Doe v. Miller ruling to support his township's decision to extend its residency restriction "to prohibit convicted sex offenders from living near roller rinks, movie theaters and amusement parks."

July 29, 2005 in Sex Offender Sentencing | Permalink | Comments (74) | TrackBack

More sex offender laws and restrictions in the works

The on-going social panic over sex offenders finds expression these days in dozens of newspaper articles each day discussing new "get-tough" sex offender legislation and proposals emerging at federal, state and local levels.  Among the articles catching my eye this morning:

Every one of these articles provides still more evidence how the laws and restrictions being developed during the current social panic over sex offenders are driven far more by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis.

July 29, 2005 in Sex Offender Sentencing | Permalink | Comments (120) | TrackBack

Thursday, July 28, 2005

Intriguing reaction to sex offender panic

This letter, headlined "Drunken drivers vs. sex offenders" and appearing in the Sarasota Herald-Tribune, makes a number of interesting points in response to the sex offender panic which is producing "get-tough" sex offender legislation at the federal, state and local levels.  Here's the lead paragraph:

There are many more unmonitored, lethal, habitually drunken drivers in our midst than there are unmonitored, lethal sex offenders.  Drunken drivers maim and kill more children, adolescents and adults than do all of Florida's sex offenders.

July 28, 2005 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, July 27, 2005

Latest sex offender idea: five-year minimum federal sentence for failing to register

As detailed in this earlier post, a federal bill entitled the Children's Safety Act of 2005 (HR 3132; available here), a package of previously separate bills aimed at cracking down on sex offenders, was slated to receive consideration by the full House Judiciary Committee on Wednesday.  This press release from the Committee provides the details on the Committee's approval of the bill by a vote of 22-4 today, and this AP report indicates that highly debated "was a provision that calls for a minimum five-year prison sentence for convicted sex offenders who fail to register with authorities."  Here are some highlights from the AP article:

Democrats called that provision too harsh, noting it could apply to a person convicted of a misdemeanor sex offense. "Failing to register should not have a minimum sentence," said Rep. Jerrold Nadler, D-N.Y. "A judge can make that determination." Under the provision, Nadler said, a person could serve more time in prison for failing to report than for the actual crime committed. "That doesn't make any sense at all," he said.

But Rep. Mark Green, a Wisconsin Republican who is running for governor, said failing to register undermines a key weapon against sex offenders — knowledge of where they're residing. The bill includes Green legislation to add juvenile sex offenders to state registration lists.  "It is, in my view, a very serious offense," he said of failing to register.  And he defended taking the decision away from judges.  "We're here because unfortunately judges have failed us in some of these cases," Green said.

The committee defeated [an] amendment by Rep. Bobby Scott, D-Va., to eliminate the minimum sentences for failing to register, 17-16.... John Conyers of Michigan, the ranking Democrat on the committee [said]: "We need to move past the emotional side of this issue," [and he called the] new mandatory minimum sentences "over the top.... We need to invest in solutions of a preventive nature."

July 27, 2005 in Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Tuesday, July 26, 2005

Sex offenders bills moving forward

In Alabama, the national panic over sex offender recently found expression last week, as discussed here and here, in a proposal for a mandatory sentence of castration and amazingly heated rhetoric.  (A Public Defender has a thoughtful discussion of these developments in this recent post.) As detailed in this story, today the Alabama legislature passed a sex offender bill with many tough terms but without the mandatory castration provision:"We don't want to pass something that will be declared unconstitutional, although I personally think these people who do this to little kids should be shot on the spot," said Rep. Alvin Holmes, D-Montgomery.

At the federal level, as detailed in articles from the AP and local papers, a sex offender bill is also moving forward in the House of Representatives.  A bill entitled the Children's Safety Act of 2005 (HR 3132; available here), which is actually a package of separate bills aimed at cracking down on sex offenders, is slated for full committee mark up on Wednesday.  Here's a description of the bill from one of the press accounts:

[The Children's Safety Act of 2005] collects numerous previously proposed bills targeting sex offenders under a single proposal.  Among them is a bill introduced earlier this year and co-sponsored by Rep. Mark Kennedy, R-Minn., dubbed "Dru's Law" in honor of Sjodin, a 22-year-old Minnesota woman who was abducted, raped and murdered in Grand Forks, N.D. in November 2003. Dru's Law would create a national database of registered sex offenders that would be searchable via the Internet by the general public and would ease the transfer of sex offender records across state lines.

In addition to the Dru's Law provisions, the bill would broaden the legal definition of "sex offender" to include anyone guilty of a felony or misdemeanor sex offense, increase the level of monitoring sex offenders receive after their release, and increase mandatory minimum sentences for sex crimes against children.  "America's Most Wanted" host and longtime child safety advocate John Walsh, speaking at the press conference, called it "the most important piece of child protection legislation in the history of the United States."

July 26, 2005 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Saturday, July 23, 2005

Sex offender panic continues in Alabama

I thought that the passage of a bill by the Alabama House providing for mandatory castration of certain sex offenders (detailed here) was the most dramatic example of our society's modern social panic over sex offenders.  But this article from the Mobile Register suggests that the mix of politics and sex offenses can lead to a lot of remarkable sentencing rhetoric in Alabama.

As the article reports, Former Governor Don Siegelman, who is expected to run for Governor again, "called for the Alabama Legislature to toughen a sexual offender bill Friday afternoon and include mandatory castration and the death penalty for persons convicted of violent sex crimes against children under 12."  Here are some eye-opening quotes from the article:

"If it was up to me, I'd give them the death penalty on the first offense," Siegelman said Friday. "The attorney general has the Legislature in this special session. This is the perfect vehicle to do this thing right.  They need to quit being so namby-pamby and squeamish about castration and put that back in the bill."...

During his Friday news conference, however, Siegelman forcefully snapped a 2-foot long pair of red garden shears for effect and said, "It will certainly give them something to think about."

Siegelman suggested the death penalty as an option for a second-time offense. "We don't owe the Joe Duncans of the world anything except a quick trip to the death penalty," Siegelman said, adding that he would give repeat offenders the option of death by lethal injection or "a big jolt from the big Yellow Mama."

In recent posts here and here, Gideon at a Public Defender is expressing understandable concerns about the rash of "sensationalist legislation" in this area.  The rhetoric of Siegelman certainly suggests that cooler heads are unlikely to prevail anytime soon.  Over at Beltway Blogroll, this post connects this story to the Justice Department's launch of its national sex offender registry (previously discussed in this post) which apparently has received "traffic so heavy that the registry was unavailable" this morning.

For a broader set of perspectives on sex offender sentencing and related issues, check out the links in this post.

July 23, 2005 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Friday, July 22, 2005

Alabama House seeks mandatory castration(!) for certain sex offenders

I have previously discussed in this post and elsewhere the new criminal justice legislation resulting from the modern social panic over sex offenders (which generally is, like so many criminal justice developments, driven more by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis).  Whether through residency restrictions or tougher sentences, many legislators are seeking to flex their "get tough" muscles through new criminal laws targeting sex offenders. 

But, as detailed in this AP article, the Alabama House has taken these developments to new heights:

The House passed a bill Thursday that would require mandatory castration of persons convicted of violent sex crimes against children under 12 and would require them to wear electronic monitoring devices for the rest of their lives after release from prison.

The House, during more than three hours of debate, heavily amended the legislation proposed by Gov. Bob Riley and Attorney General Troy King.  The House bill would prevent all convicted sex offenders from working or loitering within 500 feet of a school, park or business that educates or entertains children. The bill passed the House 96-0.

As the AP article details, a "milder version of the legislation passed the Senate 35-0 [which] provides stiffer penalties for sex offenders, provides for electronic monitoring for at least 10 years and toughens requirements for them to report their location to police, but does not include the castration requirement or other tougher language added in the House."  The article also notes that at least some members of the House realize they might have gone too far:

House Speaker Seth Hammett later said he was concerned the House might have amended the bill so much that it is no longer constitutional.   He said he hopes the final version that comes out of the special session will be closer to what was recommended by the governor and King [and was passed in the Alabama Senate].

July 22, 2005 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Friday, June 10, 2005

Two interesting non-Booker items from the circuits

Though the busy beavers at the Eighth Circuit have the Booker pipeline still whooshing along with yet another big round of dispositions on this official opinion page, it otherwise seems to be a relatively quiet day on the Booker front.   Consequently, I have a chance to note two interesting non-Booker circuit dispositions today:

From the Fourth Circuit, Judge Gregory provides an interesting little dissent (available here) from his colleagues' refusal to reconsider en banc the court's earlier rejection of an ineffective assistance claim in the capital habeas case of Walker v. True, No. 4-22 (4th Cir. Mar. 25, 2005) (original panel decision available here).  Here is the opening paragraph of Judge Gregory's dissent from the denial of en banc consideration:

This case, if distilled to its essence, asks this question: what level of legal assistance for defendants in state capital cases is tolerable enough to justify this Court's denial of the protection of the "great writ"?  Because the level of representation at the sentencing phase of Walker's capital case was too low to be tolerable under a fair assessment of his Sixth Amendment rights, I respectfully dissent from the order denying rehearing en banc.

From the Ninth Circuit, today we get Huftile v. Miccio-Fonseca, No. 03-16734 (9th Cir. Jun. 10, 2005) (available here), which addresses the proper procedural means for a defendant to challenge in federal court his civil commitment under California's Sexually Violent Predators Act.  Huftile is factually interesting and legally intricate, and Mike at Crime & Federalism in this post analyzes the decision better than I can on a late Friday afternoon.

June 10, 2005 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, June 08, 2005

Another challenge to sex offender law fails

As has already been noted here and here by others in the blogsphere, the 11th Circuit on Monday in Doe v Moore, No. 04-10279 (11th Cir. June 6, 2005) (available here) rebuffed defendants' claims that Florida's sex offender registration/notification scheme and DNA collection statute violated their constitutional rights to due process, equal protection, travel, separation of powers, and freedom from ex post facto legislation.  Considered in conjunction with the recent 8th Circuit Doe v. Miller decision upholding sex offender residency restrictions (discussed here), it is becoming ever more clear that most lower federal courts are unlikely to find constitutional problems with state efforts to regulate the post-incarceration lives of sexual offenders.

On a related note, there was an interesting recent discussion over at PrawfsBlawg about this news that a group of Texas developers are planning a development that promises to be free from registered sex-offenders.  Both Christine Hurt and Kaimi Wegner had thought-provoking posts on the topic.

June 8, 2005 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (67) | TrackBack

Sunday, May 22, 2005

DOJ planning national sex offender registry

As detailed in this Washington Post article, AG Alberto Gonzales has announced that the Justice Department is planning "a national registry of sex offenders that would allow Internet users to check all the state databases in a single search."

Officials said the Web site is being created in response to complaints from victims' rights groups and some lawmakers that dangerous sex predators were often evading detection by moving across state lines.

Attorney General Alberto R. Gonzales, in a speech at the National Press Club announcing the initiative, said Justice would aim to have a working Web site linked to 20 states within 60 days. The remaining states would be added by fall, he said.

Responding to this news, TalkLeft in this post discusses and links to a lot of its  concerns about sex offender registries.

May 22, 2005 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (84) | TrackBack

Sunday, May 01, 2005

Sex (offenders) in the city

I now have had a chance to read the Eighth Circuit's decision in Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005) (available here), which upholds against numerous constitutional challenges Iowa's legislation which "prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility."  As noted in this post, Mike at Crime & Federalism has already blogged up a storm about the case, and his three posts here and here and here (along with the comments) get to the heart of the legal and policy issues in the case.  Concerning Doe itself, I will just add that the case is especially interesting for its substantive due process analysis and also for its reliance on "common sense" rather than hard evidence about sex offender reoffending.  Also, the Doe decision, which provides a thoughtful review of a range of sex offender law and policy issues, provides a helpful list in footnote 4 of the twelve other state statutes that place residency restrictions on sex offenders.

Though a lot more could be said about Doe, the broader story is the new social panic about sex offenders which is, like so many criminal justice developments, driven by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis.  (I have prior sex offender posts on the power of the headline-making crime and on the surprising and encouraging data about sex offenses and offenders.)  Tellingly, this New York Times article today details that Florida, prompted by two terrible crimes, "will soon begin the nation's most aggressive monitoring of child molesters at a time when dozens of states and localities are re-examining their policies."  The NY Times article provides an effective national overview of sex offender developments, though the article lacks a refined discussion of the reach and efficacy of what has now been a decade of new criminal laws focused on sex offenses and offenders.

I am concerned about refined discussions of these laws because I fear they can often be written in broad ways that may harmfully fail to distinguish the truly dangerous from others.  Though the term sex offender often brings to mind the worst child molester, many sex offender laws can encompass persons who had underage consensual sex or who merely downloaded the wrong dirty pictures of the internet.  (Consider the work of the group of Save Our TexSONS, which seeks to prevent "unfair use of [sex offender] laws to prosecute teenagers engaging in consensual sex.")

Relatedly, I fear that broad residency restrictions, which may prevent offenders from living in cities or other areas in which treatment and support services are more readily available, may undermine efforts to keep sex offenders from reoffending.  What seems most important to me is that there are follow-up studies and analyses of the efficacy of the sex offender laws which are now being considered a passed during this period of panic.

May 1, 2005 in Sex Offender Sentencing | Permalink | Comments (111) | TrackBack

Friday, April 29, 2005

8th Circuit approves broad sex offender exclusion statute

Mike at Crime & Federalism is already blogging up a storm about the Eighth Circuit's decision today in Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005) (available here), which upheld against numerous constitutional challenges Iowa's legislation which "prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility."  This AP report about the case and Mike's first two powerful posts here and here provide plenty of food for thought even before I have had a chance to read the full opinion.

This weekend, after I get a chance to read the 8th Circuit opinion, I hope to do a post on what seems to be an ever-growing "sex offender panic."   In the meantime, I have linked below some notable prior posts about sex offender sentencing:

April 29, 2005 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Friday, April 22, 2005

Morning sentencing stories

Here are just a few of the many sentencing items in the morning papers:

April 22, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, April 20, 2005

Two for Tuesday from the 7th Circuit

Though the discussion of plain error coming from Eleventh Circuit judges is perhaps the most noteworthy of the Booker circuit developments Tuesday (details here), two opinions from the Seventh Circuit caught my eye and merit brief mention:

April 20, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, March 30, 2005

The intersection of sex offenses and juvenile offenders

Thanks to TalkLeft's post here, I see this interesting abc-news article about a young man who committed a sex offense when 13 years old now forced at age 18 to be placed on a sex-offender registry.  The article thoughtfully explores the challenging issues raised by the intersection of sex offenses and juvenile offenders. 

The case noted in the article presents another example — along with the recent California case noted here overturning a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration — of the extensive reach and impact of sex offender registration laws.  Also, the article perhaps implicates ideas I developed here in the wake of the Supreme Court's juvenile death-penalty decision in Roper about whether the High Court's statements in Roper about the "mitigating force of youth" should come to bear in some non-capital sentencing settings.

March 30, 2005 in Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

25 years too long for failure to register

As first noted by Appellate Law & Practice here, a California intermediate appellate court in People v. Carmony, No. C038802 (Cal. App. 3d Dist. Mar. 25, 2005) (available here) has found unconstitutional a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration within 5 days of his birthday.  The Carmony court called the defendant's failure to re-register "completely harmless and no worse than a breach of an overtime parking ordinance," and it concluded that this application of three strikes to the sex offender registration law violates the federal Eighth Amendment prohibition on "cruel and unusual punishments," as well as California's constitutional prohibition on "cruel or unusual punishment."

The extended Carmony opinion provides a useful primer on both California's three-strikes law and modern Eighth Amendment analysis.  It also brings to mind this recent post about the development of state constitutional law, and post here and here about sex offender sentencing.  Of course, this is the type of non-violent case that, I believe, would no longer have been subject to California's three-strikes law if last year's amendment to the law had been approved by votes in Proposition 66 (see discussion here and here).

March 30, 2005 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Monday, February 21, 2005

Perspectives on sex offender sentencing and treatment

In recent Booker-related posts here and here, I have stressed the importance of focusing upon data rather than anecdote when assessing federal sentencing post-Booker.  In an interesting post here, TalkLeft spotlights this very important issue in the context of sex offender sentencing and treatment.  In addition to encouraging a review of that post, here are some earlier related posts on sex offender sentencing:

February 21, 2005 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, January 12, 2005

A brief Booker break (sort of)

I will have a lot more Booker commentary tomorrow, but a few other notable sentencing items caught my eye tonight. 

First, this New York Law Journal article provides a thoughtful account of "the latest in a series of cases where judges struggle with the legal, pragmatic and appropriate Internet restraints that may be imposed as a condition of probation or parole."  The piece had me wondering again about California's new law, discussed here, making it a crime for registered sex offenders to enter the state's Megan's Law database.

Second, Marty Lederman at SCOTUSblog here notes that Roper v. Simmons, concerning the constitutionality of the juvenile death penalty, is now the only opinion outstanding from the October session.  He also notes that Justice Kennedy almost certainly was assigned to write the majority opinion.   

And speaking of Justice Kennedy, I found it very interesting and notable that he did not speak at all in Booker.  Justice Kennedy has always seemed keenly interested in sentencing issues, as reflected in his potent speech to the ABA in 2003 assailing federal sentencing policies and in the various interesting opinions he has authored in sentencing cases.  Of course, especially since, practically speaking, Justice Breyer's Booker opinion echos aspects of Justice Kennedy's ruling for the Court in Koon (which championed judicial discretion through departures under SRA), it certainly seems possible that Justice Kennedy may have played a behind-the-scenes role in the ultimate Booker outcome.

January 12, 2005 in Criminal Sentences Alternatives, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Thursday, January 06, 2005

Sentencing and religion

The intersection of sentencing issues and religion is a fascinating (and, in my view, underexamined) topic. These matters are actively percolating in the corrections setting, with the faith-based prison movement and a forthcoming Supreme Court case about RLUIPA (background here).  We also often see opposition to the death penalty influenced by religious views, as evidenced by developments last year in Ohio and the work of Sister Helen Prejean.  But on occasion, as evidenced by an intriguing Sixth Circuit case today, these matters can also intersect in individual sentencings.  (Thanks to How Appealing and a reader for the tip.)

In today's Sixth Circuit decision in Arnett v. Jackson, No. 03-4375 (6th Cir. Jan. 6, 2005), a divided panel reversed a grant of habeas corpus in favor of a state prisoner in a child rape case.  The district court granted habeas due to the state trial judge's reference to the Bible during petitioner's sentencing hearing, based on the conclusion that the "trial court's use of the Bible as a 'final source of authority' constituted an impermissible factor for sentencing." 

The Sixth Circuit, over a vigorous dissent, disagreed: it contended that "the principle embedded in the referenced Biblical passage (of not harming young children) is fully consistent with Ohio’s sentencing consideration to the same effect," and it suggested that the state trial judge "cited to the Biblical passage to underscore the contention that our society has a long history of sternly punishing those people who hurt young children."  The whole case is a very interesting read, as this provocative passage from the Judge Clay's dissent highlights:

If the Constitution sanctions such direct reliance on religious sources when imposing criminal sentences, then there is nothing to stop prosecutors and criminal defense lawyers from regularly citing religious sources like the Bible, the Talmud, or the Koran to justify their respective positions on punishment. The judge would be placed in the position of not only considering statutory sentencing factors, but also deciding which religious texts best justify a particular sentence. Under this approach, the judgments of trial courts could begin to resemble the fatwas of religious clerics, and the opinions of appellate courts echo the proclamations of the Sanhedrin. The result would be sentencing procedures that create the perception of the bench as a pulpit for which judges announce their personal sense of religiosity.

January 6, 2005 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

The power of the headline-making crime

I have often lauded Minnesota for its handling of Blakely issues (see here and here), and Professor Richard Frase's recent article (discussed here) highlights Minnesota's guideline system as a model for other jurisdictions.  But the latest news from Minnesota highlights that even this state can have its sentencing policy influenced greatly by one headline-making crime.

As detailed in this article, as a result of the disappearance of Dru Sjodin, a college student kidnapped from a North Dakota mall, the state has been considering sex-offender legislation and Governor Tim Pawlenty has labeled sex offenders "his number public safety issue."  In this well-done editorial, the Minnesota Star-Tribune highlights the problem with such an approach to criminal justice policy-making:

Not every tragedy can be prevented by legislation. Not every crime is reason to revamp the criminal code. These are lessons Minnesota leaders should take to heart as they think about how to handle Minnesota's sex offenders. Though the topic sits near the top of this session's agenda, it's not at all clear that any of the various "reforms" so far proposed would actually enhance public safety.

It's easy to see why state leaders are now so keen to crank up sentences for sex crimes, They are properly horrified by the 2003 kidnapping and murder of student Dru Sjodin and the subsequent arrest of a just-released repeat sex offender for the crime. When constituents get riled about a particular crime, lawmakers scramble to toughen penalties.

It's a natural impulse, and this session has given rise to at least two proposals for cracking down on sex offenders: Gov. Tim Pawlenty's plan to require "indeterminate" prison terms for all sex offenders and a bid by the state's Sentencing Guidelines Commission to stretch sentences for all sex crimes and reserve indefinite terms only for serious repeaters. Both plans call for a parole board to decide whether and when inmates can be released.

Reviving the parole board is indeed appealing -- so long as it's empowered to consider all inmates' fates. The move would likely be unnecessary if the Sentencing Guidelines Commission, which replaced the board in 1982, were left alone to fulfill its term-setting charge. But the legislative habit of tinkering with sentence lengths has hobbled the commission's ability to assure a fair system of punishment -- thereby raising doubts about whether all wrongdoers are ending up where they should. In fact, it seems likely that many Minnesotans would agree that too many prison beds are now filled by offenders who could more readily be helped and held to account in some other venue....

Lawmakers should be skeptical of all proposals to revamp Minnesota's approach to managing sex offenders. After all, it could very well be that the current system generally works very well -- so long as people follow the rules. The heartbreak of Sjodin's murder -- a crime for which Alfonso Rodriguez Jr. stands accused -- can't be attributed to a flaw in state law.... This isn't to say that state sex-crime laws couldn't benefit from fine-tuning. But it's simply incorrect to blame Sjodin's death on feeble state statutes. Fault is more properly placed on a moment of misjudgment, most certainly related to cost-saving pressures within state departments. It could be that the smartest thing lawmakers can do this year is to assure that the programs charged with handling sex offenders have everything they need to perform well.

January 6, 2005 in Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Sunday, January 02, 2005

Sunday's stimulating sentencing stories

After reading about all the bowl games in the sports pages — how 'bout that Rose Bowl — there are a number of thought-provoking articles in today's newspapers:

January 2, 2005 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Thursday, December 30, 2004

Another way to be punished without conviction

The Blakely ruling at its core seems sound to me because it will generally prevent persons from being punished for crimes for which they were not convicted (which is a not-uncommon practice under the existing federal guidelines).   But this interesting article from Utah shows that, even after Blakely, there are still some ways persons can be punished for unconvicted conduct.

The article reports on a decision by the Utah Board of Pardons and Parole to keep a man in jail for armed robbery after DNA evidence linked him to a series of rapes:

Some legal observers say the case of Rudy Michael Romero, 40, sets a dangerous precedent, because Romero is effectively being held in prison on an indeterminate sentence for crimes for which he was never convicted. 

Romero was sentenced to five years to life for aggravated robbery, and was scheduled to be paroled July 27 after serving 10 years of his sentence.  But the parole board rescinded the date after learning June 22 he had been implicated in five rapes committed in the early 1990s after the crime lab matched his DNA with preserved evidence.

Romero has no known sexual-assault convictions and wasn't implicated in the cases until the state crime lab began to take saliva samples from prison convicts to match against DNA evidence in unsolved crimes. However, Romero cannot be tried for the Jordan River rapes because the four-year-statute of limitations has expired.

The article also notes that "according to state law, the board's decisions are absolute and cannot be appealed."  However, in a post-Blakely world, it will be interesting to see if courts might be more willing to intervene in a decision of this sort than in the past.

December 30, 2004 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack