Monday, November 27, 2006

Intriguing child porn guideline ruling from Ninth Circuit

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

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

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

UPDATE:  Orin Kerr comments on Kuchinski here.

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

Wednesday, November 22, 2006

So many sex offender stories

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

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

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

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

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

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

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

Tuesday, November 21, 2006

NPR (and more) on sex offender restrictions

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

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

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

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

Monday, November 20, 2006

Debating sentences for predator offenses

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

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

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

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

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

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

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

Saturday, November 18, 2006

Long sentence for prominent cyber-sex offender

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

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

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

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

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

Friday, November 17, 2006

Lots of state sex offender sentencing news

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

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

Friday, November 10, 2006

Is GPS tracking a better way?

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

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

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

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

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

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

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

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

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

Thursday, November 09, 2006

More on Proposition 83 in California

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

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

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

Wednesday, November 08, 2006

California's new sex offender law enjoined

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

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

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

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

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

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

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

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

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

Tuesday, October 31, 2006

Can procedural injustice produce substantive justice?

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

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

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

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

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

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

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

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

Monday, October 30, 2006

A new blog on legal developments relating to sex offenses

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

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

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

The unintended consequences of residency restrictions

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

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

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

Some recent related posts:

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

Friday, October 27, 2006

Sex offenders as our modern day witches

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

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

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

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

Friday, October 20, 2006

The challenges of connecting sex offense reactions and realities

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

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

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

Some recent related posts:

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

Thursday, October 19, 2006

A new legal attack against local sex offender residency restrictions

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

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

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

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

Some recent related posts:

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

Wednesday, October 18, 2006

California's sex offender residency restriction proposition

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

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

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

Some recent related posts:

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

Tuesday, October 17, 2006

The scattered law of sex offender residency restrictions

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

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

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

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

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

Monday, October 16, 2006

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

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

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

Some recent related posts:

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

Wednesday, October 04, 2006

On goes the Foley scandal

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

Some recent related posts:

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

Tuesday, October 03, 2006

Holy moly Foley!

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

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

Some recent related posts:

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

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

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

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

Monday, October 02, 2006

How could and should Foley be prosecuted?

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

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

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

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

Sunday, October 01, 2006

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

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

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

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

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

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

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

Some related posts:

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

Friday, September 22, 2006

Might Berger get SCOTUS attention?

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

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

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

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

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

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

Some related posts:

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

Tuesday, September 19, 2006

Consequences of California's new proposed sex offender law

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

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

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

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

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

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

Monday, September 18, 2006

Interesting sex offender ruling from the Sixth Circuit

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

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

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

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

Monday, September 11, 2006

Another twist on (and twisted) sex offender restriction

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

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

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

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

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

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

Saturday, September 09, 2006

Compilation of sex offender residency/movement restrictions?

One of the many interesting aspects of the new federal sex offender legislation, the Adam Walsh Child Protection and Safety Act of 2006 (discussed here and here), is the notable lack of an provisions concerning sex offender residency and movement restrictions.  As previously discussed here and here, laws restricting where sex offenders can live and go have become very popular with states and localities.

This past week I asked a research assistant to see if anyone have produced a comprehensive compilation of state and local laws creating sex offender residency and movement restrictions.  It now dawns on me that I should also try blegging.  So can anyone send me compiled information about these laws?

September 9, 2006 in Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Monday, August 07, 2006

Considering sex offender options

A lack of wireless networking in the ballrooms is keeping me from live-blogging at the on-going NASC conference (conference details here and here), but a lunch break allows me to note that sex offender sentencing is a big topic of conversation.  And, on that front, check out this notable article with this notable title: "Castration or civil commitment? His testicles or life in prison? Virginia's worst sex offenders might soon grapple with the same decision."  Here is part of its first section:

Across America, some states are embracing castration - mostly through chemicals that lower testosterone - as a means of controlling convicted pedophiles.  The mental disorder is treatable through therapy by drastically lowering testosterone, which has been shown to stem the urges that lead to sexual assaults. But treatment doesn't guarantee a pedophile won't offend again.

Virginia isn't a state that castrates its most violent sex offenders.  Virginia has, however, embarked on a relatively new program to commit the worst of its sexual predators to a maximum-security institution in Petersburg in hopes of reforming the behaviors that lead to the outbursts of sex-driven violence.

August 7, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Friday, August 04, 2006

Another interesting Big Love sentencing

In this post a few months ago, I noted an intriguingly long state sentence for bigamy.  Now we can consider and compare this story reporting on an intriguingly short state sentence for sex with a teenager:

An Arizona judge has sentenced a polygamist to 45 days in county jail for having sex with a teenager he took as his third wife.  The sentence disappointed authorities in Kingman, Arizona, who had hoped a harsher punishment for defendant Kelly Fischer would discourage others in the church from taking teenage wives.

Fischer was the first of seven members of the Fundamentalist Latter-day Saints (FLDS) to be tried for plural marriages to minors.... Members of the group, which broke with mainstream Mormons in the 1890s over polygamy, believe that only those in plural marriages can reach the highest level of heaven.

August 4, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, July 26, 2006

Sex offender bills becoming law

As detailed in this USAToday story, the Adam Walsh Child Protection and Safety Act is all set to become federal law tomorrow.  This local story explains that the Act is "designed to track sex offenders nationwide and toughen penalties against those who prowl the Internet to find young victims."  I discussed more features of this law in this recent post, but I am still looking for a thoughtful and balanced summary of its key sentencing provisions.

On the state front, this article notes that Delaware's governor "today signed a law that will mandate prison terms of 25 years to life for people convicted of a felony sex offense against a child under the age of 14.  It will also impose the same sentence on people convicted of a second felony sex offense against older teens."

July 26, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Sunday, July 23, 2006

Senate passes major sex offender bill

As detailed in AP and Reuters stories, the Senate late last week passed a broad bill targeting sex offenders with new criminal and civil laws.  Here are highlights of the bill from the AP story:

Child advocates have called the bill the most sweeping sex offender legislation to target pedophiles in years.  It would:

  • Establish a comprehensive federal DNA database of material collected from convicted molesters, and procedures for the routine DNA collection and comparison to the database when someone has been convicted of such an offense.
  • Provide federal funding for states to track pedophiles using global positioning devices.
  • Allow victims of child abuse to sue their molesters.
  • Impose a mandatory minimum sentence of 30 years for raping a child.
  • Impose a mandatory 10-year penalty for sex trafficking offenses involving children and for coercing child prostitution.
  • Increase minimum sentences for molesters who travel between states.

The news reports indicate that the House is likely to follow suit this week so that this bill becomes a law before the end of the month.

July 23, 2006 in Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Thursday, July 06, 2006

Considering castration for certain sex offenders

Earlier this week, the AP and the Washington Post both had stories about sex offenders (one in California and on in Virginia) who voluntarily underwent physical castration to reduce their sex drives and are now seeking release from prison.  Here are some details from the AP story:

A convicted child molester who got surgically castrated to curb his urges wants to be released from custody.  Kevin Reilly won a court order and paid to have his testicles removed in 2003.  "He felt that this was the only way to stop his cravings and immoral conduct," said his attorney, Orange County Deputy Public Defender Dinah Granafei.

Reilly says he has completed a sex-offender treatment program, undergone castration and is no longer a threat to children. He wants to be freed from Atascadero Mental Hospital, where he has been locked up since 2000 when the Orange County District Attorney's Office filed a petition labeling him a Sexually Violent Predator.

The Washington Post story, which centers on an inmate who castrated himself while in prison, provides broader background on the emerging role of castration in sex offender debates:

High-profile pedophilia cases ... [and] public outrage has caused lawmakers in Virginia and other states to try to make castration part of the solution for high-risk sex offenders.  Eight states allow the use of drugs to castrate sex offenders, including California, Florida and Texas, where surgical castration is also an option.  Castration, however, is not a get-out-of-jail-free card.  In Florida, for instance, judges are required to order castration for certain repeat offenders.  Although many scientists and psychologists agree that castration can dramatically lower sexual drive, there is sharp disagreement about whether it is a cure-all....

Although such drugs as Depo-Provera and Depo-Lupron can help control some sexual disorders, they may not control, for example, a violent serial rapist who targets adult women out of anger and a need for control.  The drugs can also have serious side effects.  And there is concern that castrated sex offenders might replenish their testosterone by injecting hormones purchased illegally or over the Internet.

This year, state Sen. Emmett W. Hanger Jr. (R-Augusta) floated a bill in the legislature that would have allowed sex offenders to choose to be surgically castrated in exchange for their freedom at the end of their prison sentences.  Hanger withdrew the bill after questions arose about whether courts might deem castration cruel and unusual punishment.  But he said the fact that sex offenders would volunteer for the procedure should allay such concerns.  He hopes to introduce a revised version in the next session.

July 6, 2006 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Monday, July 03, 2006

Liberty versus security in the war on ... sex offenders

Since September 11th, there have been many legal and political discussions about how to balance liberty and security concerns in the war on terror.  But, especially the day before Independence Day, we might also reflect on how these issues are playing out in the war on sexual offenders.  Some recent newspaper articles provide interesting food-for-thought:

Some recent related posts:

July 3, 2006 in Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Saturday, July 01, 2006

Missouri Supreme Court addresses sex offender registry

As detailed in news articles here and here, the Missouri Supreme Court on Friday issued a major decision addressing the state's sex offender registry.  The full ruling, which upheld the state's Megan's Law against a range of constitutional claims concerning, can be accessed here.  This news account provides some highlights:

While the high court upheld the constitutionality of the state's sex offender registry law, it ruled that the statute should not apply to nearly all of those convicted of crimes prior to 1995, when the law took effect.  One key exception is sexually violent predators, who will stay on the list regardless of when their crimes occurred.

Just how many of Missouri's more than 11,000 registered sex offenders would be affected by the ruling was unclear Friday....  But Arthur Benson II, the lawyer who brought the case, estimates that thousands would no longer have to be registered as sex offenders.

Currently, the registry includes offenses from 1979 to the present.  Crimes committed during more than half of those years would not be included in the registry.  Benson said the ruling addresses "the height of unfairness" in the current law, which requires people to register even for crimes they committed years before the registry law was conceived. 

Eleven of Benson's clients claimed their inclusion on the sex offender registry was unconstitutional on numerous grounds. The high court rejected nearly all their claims, affirming the constitutionality of requiring offenders to register even after they had completed prison sentences. The court ruled —  as it and others have in the past — that the registration requirement does not represent an additional criminal punishment.

July 1, 2006 in Sex Offender Sentencing | Permalink | Comments (27) | TrackBack

Monday, June 26, 2006

TRO issued concerning Georgia sex offender residency restriction

In this post, TalkLeft has lots of background on a TRO issued today by U.S. District Judge Clarence Cooper to prevent the application of new law due to go into effect in Georgia on July 1.  The law, available here, prohibits anyone on the state's sex offender registry from living within 1,000 feet of any school bus stop.  Here is an AP story with a bit more on the ruling.

June 26, 2006 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Friday, June 09, 2006

Every step you take, every move you make...

The rock group The Police have a number of songs that might effectively describe the modern trend of requiring GPS tracking of sex offenders: not only is Every Breath You Take a fitting theme song for these developments, so too might be Can't Stand Losing You or even Don't Stand So Close to Me.  And, of course, the band's very name is on-point.

This musical interlude is inspired by this recent USA Today article, which effectively explores the "rapidly rising number of states using GPS to monitor convicted sex offenders."  Here's a snippet:

"In the last several months, it's been exponential growth," says Steve Chapin, president of Pro-Tech, a Florida-based firm that provides GPS services to 27 statewide agencies.  He says his business has doubled in the past three months.

As of January, 13 states had laws requiring or allowing GPS tracking, says the National Conference of State Legislatures.  Aside from Wisconsin, governors in at least six states (Arkansas, Georgia, Kansas, Virginia, Washington and Michigan) have signed such bills this year.  New Hampshire Gov. John Lynch plans to do so soon.  Similar bills are pending elsewhere.  "It's the law you can't vote against," says Chapin.

And, as detailed in this AP article, Rhode Island seems on the way toward joining the long list of states turning to GPS to track sex offenders.

June 9, 2006 in Sex Offender Sentencing | Permalink | Comments (65) | TrackBack

Thursday, June 01, 2006

New litigation over sex offender restriction

As detailed in this AP story and this local account, a new ordinance restricting sex offenders in Indianapolis has prompted some interesting constitutional litigation.  Here are basics from the AP:

Six sexual offenders, including convicted child molesters and rapists, sued the city Wednesday to block a new ordinance that bans them from coming within 1,000 feet of parks, pools, playgrounds and other sites when children are present. The six, including a college student who has joint custody of his 7-year-old son and has completed probation for child exploitation, are represented by the American Civil Liberties Union of Indiana, which filed the complaint seeking class-action status in U.S. District Court in Indianapolis.

The six allege the new ordinance is unconstitutionally vague, violates their rights to vote and attend church, and prevents them from freely traveling on streets and highways that may pass within 1,000 feet of the affected sites. They are seeking temporary and permanent injunctions barring the city from enforcing the new law. "It is virtually impossible to travel through the streets and interstate highways in Marion County without passing within 1,000 feet of a playground open to the public, recreation center, bathing beach, swimming pool or wading pool, sports field or facility," the complaint said. "Moreover, there is no way for a person to know if he or she is passing within 1,000 feet."

The ordinance cleared the City-County Council 25-2 on May 15 and took effect immediately.  It carries fines of up to $2,500 for violations.... Tenley Drescher, a deputy corporation counsel for the city of Indianapolis, said the city planned to litigate the matter to the end.  "We plan to vigorously defend the constitutionality of the ordinance," Drescher said.  "The important part is protecting kids."

As details in some of the links below, there has been robust litigation over sex offender residency restrictions, but I am not aware of any major rulings concerning sex offender movement restrictions.

Some related posts:

June 1, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Thursday, May 18, 2006

Intriguing sex offender collateral consequence

With a hat tip to How Appealing, I can relay this interesting news story and this interesting state court ruling about a novel new aspect to a sex offender sentencing.  Here are highlights from the news story:

When a Sussex County teenager admitted endangering the welfare of his 6-year-old half sister, a judge sentenced him to three years probation and added an unprecedented condition: The boy must tell the parents of any girl he dates that he is a registered sex offender.  Yesterday, a state appeals court ruled that family court judges have the power to impose such conditions, even though they go beyond the warnings provided to the public under Megan's Law.

The Public Defender's Office plans to ask the state Supreme Court to review the ruling.  Spokesman Tom Rosenthal said, "We are concerned this may be adopted in other cases.  We really don't want to see that happen."

It is a case that involves conflicting state policies.  State law protects the confidentiality of juvenile delinquents in order to foster their rehabilitation.  But since the 1994 rape and murder of Megan Kanka, the state has developed an elaborate system for warning schools and neighbors about sex offenders in their midst.... Both Rosenthal and West Trenton lawyer Jack Furlong, co-author of a guidebook to Megan's Law, said it was the first time they had heard of a teenager being ordered to disclose his sex offense to a date's parents.

"As a practical proposition, this kid doesn't date for three years," said Furlong, a long-time critic of Megan's Law. "It's another example of judges being hyper-cautious whenever dealing with sex offenses for fear that something, hypothetically, could happen in the future and were it to happen the judge would be called to account," Furlong added. "That's not what judging is about."  Assistant Sussex County Prosecutor Jerome Neidhardt, who handled the appeal for the state, said, "We agree with the reasoning behind the judge's decision."

May 18, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Saturday, May 13, 2006

A case-study in the potency of federal prosecution

This story from Maryland details the interesting and telling outcome in federal court for a defendant who had successfully challenged his state prosection for an alleged on-line sex offense:

Richard J. Moore created legal history when he successfully challenged a state law, arguing that a sex offender could not be convicted for soliciting an undercover officer masquerading as a young girl on the Internet.  Yesterday, the Howard County man paid a heavy price for his appellate victory.

Federal prosecutors took over the case, and a judge sentenced Moore to serve nearly 2 1/2 years in prison for traveling across state lines to have sex with a minor in July 2002.... U.S. District Judge Benson E. Legg said in court yesterday that he would not sentence Moore to home confinement. Instead, Legg said, Moore deserved to be sentenced at the low end of the recommended sentencing guidelines -- between 33 to 41 months in prison.

In court, Assistant U.S. Attorney Andrew Norman argued that Moore's offense was a crime of violence, typical of the kind of sex offense investigators have found on the Internet. Norman said that under current law, the recommended sentencing guidelines for Moore would have been much harsher, carrying a mandatory minimum prison term of five years.  But Gage-Cohen countered that Moore had no idea when he decided to appeal his state conviction that he would prompt state officials to seek out federal prosecutors.

Moore addressed the judge toward the end of the 90-minute hearing, standing in front of a half-dozen members of his family and friends. "I assure you it was an aberration," he told Legg, his voice breaking slightly.  He described his life since, a sorrowful life of divorce, job loss and banishment from the ability to parent his two sons.  "What I did was incredibly wrong," Moore said, adding that as a 9-year-old he was sexually abused.  Still, he said, "I have no one to blame but myself."

Legg declined to impose a sentence below the recommended sentencing guidelines.  "This is a very serious societal problem," Legg said. "It's also a very serious crime." A stiff sentence for Moore, he added, would show others that federal courts treat sex offenders harshly, whether or not there was a "real" victim involved.

May 13, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, May 11, 2006

What ever happened to state constitutional law, textualism, and libertarianism?

As noted here, yesterday the Arizona Supreme Court rejected a former Phoenix high school teacher's claim that his 200-year prison sentence for possessing child pornography violated the U.S. Constitution's prohibition of "cruel and unusual punishments."  All three opinion in Arizona v. Berger, No. CR-05-0101-PR (Ariz. May 10, 2006) (available here) are fascinating, thoughtful, and worth the time to read if interested in these issues.  (Based on Berger and earlier Blakely work, perhaps the entire Arizona Supreme Court might merit a place in my Sentencing Hall of Fame.)

Though much could be said about Berger, three particular issues/questions came to mind as I reflected on the ruling and the Arizona Justices' opinions:

1.  What about state constitutional law?  Throughout Berger, the Arizona Justices seem to struggle with the Supreme Court's Eighth Amendment jurisprudence and hint that, absent controlling SCOTUS rulings, the case might have been resolved differently.  This led me to wonder about the distinct provision in the Arizona Constitution prohibiting the infliction of "cruel and unusual punishment."  Though bound by SCOTUS interpretation of the Eighth Amendment, the Arizona Justices have a unique authority and obligation to interpret state constitutional provisions (and many state supreme courts have provided defendants enhanced rights based on parallel state constitutional provisions).  Did a state constitutional law claim get raised in Berger?  Could (and should) the Arizona Justices have taken up the issue sua sponte even if not raised below?

2.  What about textualism?  Throughout Berger, the Arizona Justices debate whether there was "gross disproportionality" in the 200-year sentence.  Though this is the focal point of modern Eighth Amendment jurisprudence, I am always troubled that the actual constitutional text gets lost in these cases.  The opinions in Berger make clear that a 200-year sentence for a first-offender downloading terrible pictures is "unusual"; it also seems kind of "cruel."  This textualism concern dovetails with point 1 above: though perhaps bound to ignore the actual text of the Eighth Amendment, the Arizona Justices certainly could (and should?) give distinctive attention to the text of Arizona's constitution prohibition on inflicting "cruel and unusual punishment."

3.  What about libertarianism?  Shouldn't libertarians and folks concerned about privacy issues (such as those who blog here and here and here) be troubled by this case?   The defendant's criminal conduct in Berger essentially consisted of downloading the wrong type of dirty pictures using his computer in the privacy of his own home.  For this he gets a mandatory 200-year sentence, which apparently cannot even be reduced through a pardon or clemency under Arizona law.  Though it is well-settled that simply possessing child pornography can be a crime, shouldn't those who argue for constitutional limits on government power be troubled by how severely Arizona is punishing Mr. Berger?

May 11, 2006 in Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

Sunday, April 23, 2006

The links between sentencing and plea/trial rates

This interesting news story from upstate New York concerning an upcoming federal trial on child pornography charges highlights the links between sentencing issues and trial/plea practices.  Though the article is mostly about the prosecution of child pornography cases, it also provide a window into sentencing and trial/plea issues:

Federal judges in Rochester say they've never had a child porn case go to trial in the past 20-plus years.  Authorities say they expect to see more in the future because of the spread of child pornography over the Internet and because moves to toughen sentences for the crime may discourage defendants from taking a plea....

Court records show that [the defendant] was offered plea bargains — the typical resolution to child pornography charges — but he insisted that he be tried instead....

Federal authorities say recent congressional moves to stiffen sentences for child pornography may prompt more defendants to choose trials.  In 2003, for instance, Congress passed the Protect Act, designed to strengthen the protection of children and to toughen the punishment for those who molest children or view child pornography.

"There's not much of an advantage to pleading guilty these days because the (sentencing) guidelines are so high," said Albany-based Assistant U.S. Attorney Thomas Spina.  He said he has prosecuted federal child pornography cases for 15 years and has never had one go to trial.

April 23, 2006 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Monday, April 10, 2006

Fifth Circuit affirms life-time supervised release for downloading child porn

To wrap up some of last week's circuit sentencing action — which brought important rulings from the First Circuit, the Second Circuit, the Fourth Circuit, the Seventh Circuit, the Tenth Circuit and others — the Fifth Circuit issued an interesting opinion in US vs. Gonzalez, No. 05-40950 (5th Cir. Apr. 7, 2006) (available here).  The Fifth Circuit in Gonzalez reached a mixed result in reviewing a defendant's objections to a sentence in a case involving the downloading of child porn.

First, the defendant in Gonzalez prevails on his claim that his guideline offense level was improperly "increased twice on the basis of the number of child pornography images he possessed." In finding for the defendant on his double-counting claim, the Fifth Circuit in Gonzalez appears to create a circuit split due to a contrary ruling last year by the Eleventh Circuit.  (So much for national sentencing uniformity.)

Second, the defendant in Gonzalez fails in his objection to the judge's upward departure in "Gonzalez's term of supervised release — from the Guidelines term of three years to the statutory maximum term of life."  The Fifth Circuit declares this upward departure reasonable after concluding that downloading of child porn qualifies as a "sex offense."

April 10, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, April 05, 2006

A capital experiment spreading in the state laboratories

As detailed in this news account, the new fad of bills to make child molesters eligible for the death penalty has now spread to Tennessee from Oklahoma to South Carolina: "A House Subcommittee voted unanimously on Tuesday for legislation by State Rep. Matthew Hill (R-Jonesborough) to make child rape a capital offense punishable by death or life imprisonment."

Meanwhile, as this story details, new concerns are being raised in South Carolina as that state is on the path to becoming "the second state in the country to make some twice-convicted sex offenders eligible for the death penalty."  As the article explains:

Advocates against capital punishment say applying the ultimate penalty could lead to family members refusing to come forward and more rape victims being killed.  "It actually may create more death because the person facing the death penalty for this kind of offense might be inclined to say, 'No greater punishment incurred if I killed the victim,'" said Richard Dieter, executive director of the Death Penalty Information Center, a group critical of death penalty laws.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, Calif., often is at odds with Dieter's group.  But he said the death penalty shouldn't be imposed "simply to give the rapist an incentive not to kill the victim." It's difficult to take emotion out of this debate, "but that doesn't mean you should get carried away," he said.

Because the bulk of child rapes involve family members, the death penalty could make it more difficult for prosecutors because family members are less likely to come forward, Dieter said.

Recent related posts:

April 5, 2006 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, April 04, 2006

South Carolina Gov supports death penalty for repeat child rape

As detailed in this AP story, South Carolina "Gov. Mark Sanford announced support Monday for a bill that would make some twice-convicted sex offenders eligible for the death penalty."   Here are some more details:

The bill, which still must pass the South Carolina House, would make capital punishment an option for offenders convicted twice of sexually assaulting children under 11.  Such crimes "can destroy for a long time, and maybe forever, that young person's ability to function, that young person's trust in older people, trust in others," Sanford said....

Sen. Jake Knotts, R-West Columbia, the sponsor of the Sex Offender Accountability and Protection of Minors Act, said he didn't include the death penalty provision when originally drafting the bill because he was told it was unconstitutional.  Now, he says, South Carolina should take advantage of an opportunity to set precedent. "South Carolina shouldn't have to wait on another state to come up and say whether you can do it or not," Knotts said. "We've got a chance to do it, we need to do it."

Recent related posts:

April 4, 2006 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Monday, April 03, 2006

House Booker hearing follow-up

Today I received a copy of very interesting supplemental written testimony from attorney James Felman, who testified at the March 16 House hearing on Booker (and whose original testimony can be accessed here).  This supplemental written testimony, which can be downloaded below and is a very interesting read, addresses issues such as sex offender sentencing and cooperation discounts that were some of the focal points during the House hearing.

Download felman_supplemental_congressional_testimony.pdf

Some related prior posts:

April 3, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, March 29, 2006

South Carolina bill proposes death for repeat child molesters

As discussed in this recent post, a bill making repeat child molesters eligible for the death penalty has been moving forward in Oklahoma.  And now, as detailed in this AP story and this additional presss account, a similar bill is advancing in South Carolina.  Here are some details:

The South Carolina Senate agreed Tuesday that twice-convicted child molesters should be eligible for the death penalty, setting aside arguments the move might be unconstitutional.... The proposal was approved as part of a larger bill that sets minimum sentences and lifetime electronic monitoring for some sex offenders. It allows prosecutors to seek the death penalty for sex offenders who are convicted twice of raping a child younger than 11....

Such criminals "don't deserve to be on the face of this earth," said Sen. Jake Knotts, R-West Columbia, the chief sponsor of the bill dubbed the Sex Offender Accountability and Protection of Minors Act. "In a lot of cases, death isn't good enough for them," Knotts said.   Attorney General Henry McMaster ... said he believes South Carolina's proposed law would be found constitutional, and that he would be proud to argue that case.

March 29, 2006 in Death Penalty Reforms, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Thursday, March 23, 2006

Interesting paper on sex offenders

A helpful reader has pointed me to this interesting new paper from the Center for Community Alternatives entitled "Responding to Sexual Offenses: Research, Reason and Public Safety."  The paper discusses research on evidence-based practice dealing with sex offenders and calls for a more nuanced and less categorical approach to initiatives like residence restrictions and registration requirements.  Here are the opening paragraphs:

There is likely no criminal behavior that breeds as much condemnation and fear as sex offending. There are tragic examples of young victims of sex offenders in New York State and across the country that have raised our concerns, and prompted calls for increased surveillance, control and incapacitation. It is responsible public policy to address these concerns in ways that will increase public protection that are based on research and evidence. An evidence-based approach ensures that we will sequester only those who are likely to reoffend by committing serious, violent sexual offenses and affording treatment and effective supervision for those who do not fall into this category.

To date, much of the debate about sex offenders has been driven by the most horrific and heinous crimes that contribute to the myth that nothing works.  This ignores a growing body of research that documents what works, for whom and in what setting and context. This policy alert calls attention to some of the literature, and urges that new legislation on sex offenders, both criminal and civil penalties, be guided by this research and further expert consultation. We briefly address three key areas: assessment of people who commit sex offenses, the efficacy of treatment — what works for whom, and the use and misuse of civil commitment.  Finally, we draw upon lessons learned from the past and New York's experience with legislation that was driven by fear and political rhetoric — the Rockefeller drug laws.

March 23, 2006 in Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Friday, March 17, 2006

Lots of interesting sentencing stories

Yesterday's House Booker hearing (basics here and here) seems to have received remarkably little press coverage.  But there are some other interesting sentencing stories in the newspapers this morning:

Death penalty stories:

Sex offender sentencing stories:

March 17, 2006 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, February 14, 2006

Seventh Circuit rejects Eighth Amendment challenge to child porn mandatory minimum

The Seventh Circuit today in US v. Gross, No. 05-1538 (7th Cir. Feb. 14, 2006) (available here) has rejected an Eighth Amendment challenge to a 15-year mandatory minimum sentence in a child pornography case. Here is the opening paragraph in Gross:

Kerby Gross has had a sad and troubled life marked by his experiences as a victim and perpetrator of child sexual abuse.  He is before us after pleading guilty to distributing child pornography, and he asks us to consider whether the application of the mandatory minimum sentence in 18 U.S.C. § 2252A(b)(1) to him constitutes cruel and unusual punishment in violation of the Eighth Amendment. Because we conclude that Gross’s sentence of fifteen years (the mandatory minimum) is not grossly disproportionate and therefore does not violate the Eighth Amendment, we affirm.

February 14, 2006 in Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, February 11, 2006

A registry for meth offenders?

Sex offender registries are in place in nearly every state and are now nationally coordinated (details here and here), Mike Coan, a Georgia state representative, brings a new spin to the registry idea through this commentary:

Sex offenders ... must register with the state Department of Corrections.  Residents can check a Web site to find out whether sex offenders live in their ZIP code.  With the growing problem of methamphetamine abuse and crimes related to it, we must now take the same steps to "out" offenders who bring this dangerous drug into our communities. That's why I have introduced legislation to create the Methamphetamine Offender Registry, which would be administered by the Georgia Bureau of Investigation....

The registry is necessary because the production, distribution and use of this powerful street drug is the source of so much crime, ranging from robbery, theft, forgery, child abuse and neglect to a host of violent offenses....  Just as sex offenders do irreparable harm to children, meth abusers also harm innocent children.  The addiction to this street drug is so powerful that addicts neglect their families, spend all their wages buying meth and behave extremely erratically, sometimes abusing children and spouses....

Information is power, and when residents have the ability to find out who lives in their community — whether it is a sex offender or a meth offender — they can make better decisions about how they live their lives.  Gov. Sonny Perdue has declared meth abuse to be perhaps the worst scourge on Georgians of all income levels today. I believe a meth registry is one more step we can take to help combat this problem.

UPDATE: Gideon here at a Public Defender notes this interesting report from Connecticut, which discusses registry laws and notes that Kansas, Montana, and Oklahoma require violent offenders to register.  Gideon asks: "Why not require all offenders to register?"

February 11, 2006 in Criminal Sentences Alternatives, Drug Offense Sentencing, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack