Tuesday, May 11, 2010

Major reasonableness ruling from Second Circuit in child porn downloading case

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

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

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

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

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

Friday, May 07, 2010

Notable variations in state approaches to juve sex offenders

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 06, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 04, 2010

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

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

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

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

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

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

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

Friday, April 30, 2010

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

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

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

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

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

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

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

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

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

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

Tuesday, April 27, 2010

"FAMM Condemns Mandatory Life Sentence for NV Woman"

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

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

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

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

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

Eleventh Circuit rejects various constitutional challenges to federal child porn convictions

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

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

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

Triple-digit sentence for child molester

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

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

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

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

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

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

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

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

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

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

Thursday, April 22, 2010

Some notable new developments in the Polanski prosecution

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

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

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

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

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

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

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

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

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

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

Wednesday, April 21, 2010

Interesting report on long state sentence for child porn offense

At the same time I have been following closely the debates and controversies over long child porn offense sentence in the federal system, I have been wondering how (and how many) such cases are handled at the state level.  On that front, I found interesting this local story from Florida headlined "Gibsonton man gets 55 years in child porn case."  Here are the details:

A Gibsonton man arrested in a sting in which he thought he was going to have sex with a 12-year-old mentally challenged girl was sentenced today to 55 years in prison. Deputies found thousands of photographs and videos of child pornography on the computer of Carl M. Cocking, 37.

Prosecutors said it was the longest prison term ever handed down in Hillsborough County for downloading child porn. "Every time these images are made, a child has been raped, a child has been victimized and a child has lost its innocence," Hillsborough Circuit Judge Chet A. Tharpe said in imposing sentence. "It has to be stopped."

The sentence was the maximum Tharpe could mete out under a five-page plea bargain Cocking worked out with prosecutors. He was charged with using a computer to solicit child pornography, two counts of attempted lewd and lascivious battery, and 45 counts of possessing more than 10 images of child pornography.

Cocking faced 1,300 years under state law, but prosecutors said 55 years was the maximum sentence under state sentencing guidelines.

Prosecutors took the rare approach of showing some of the images to Tharpe before sentencing. Assistant State Attorney Rita Peters said it was the first time she had done so. The screen was placed so only Tharpe, the lawyers and a detective could see it. The images included the rape of a 2-year-old who cried for her mother during the attack.

"It is beyond my wildest dream that you would watch that and get sexual satisfaction," Tharpe told Cocking. "Thank God the detectives caught you before you acted out because you were going to act out." Tharpe remained visibly upset afterward....

Cocking's lawyers sought to lessen his sentence, saying he has been in constant outpatient therapy since being released on bail and that he didn't flee. Peters said she took the step of showing the images to Tharpe so he could understand the degree of Cocking's depravity. "He needed to be incarcerated," she said.

April 21, 2010 in Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (37) | TrackBack

Notable UK court ruling on human rights attack on sex offender registry

Because I know almost nothing about UK law and procedure, I cannot quite tell if this new story from The Guardian is a just notable or really huge.  Still, its headline alone caught my attention: "Sex offenders win appeal against indefinite inclusion on register; Supreme court backs case of two sex offenders who claim being on register for life without review breaches their human rights." Here is more:

A supreme court ruling today has opened the way for hundreds of sex offenders to challenge whether they should remain on the sex offenders' register for life. The ruling backed a case brought by two convicted sex offenders who challenged their indefinite inclusion on the register without any right to a review, claiming it breached their human rights.

One, who was convicted of rape when he was 11 years old, argued that being on the register had prevented him taking his family on holiday or playing rugby league. The other offender, Angus Aubrey Thompson, now aged 59, was jailed for five years for indecent assault 14 years ago. Their lawyers argued they had been labelled for life without any opportunity to demonstrate they had reformed.

The current legislation says that any sex offender sentenced to a prison sentence of at least 30 months is placed on the register for life and has a duty to keep the police informed of any change of address or travel abroad.

The supreme court decision published today follows an appeal by the home secretary against an earlier appeal court ruling that the lack of any review was incompatible with the European convention on human rights, in particular the right to respect for a private and family life.

Lord Phillips, the supreme court president, said: "It is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified."

The judges stressed that the ruling did not mean the sex offenders' register itself was illegal and said that it was entirely reasonable and lawful to monitor someone for life if they were assessed to be a danger to society.

But the judges rejected the home secretary's appeal, saying there was no evidence to show it was impossible to identify which sex offenders had reformed. Home Office research submitted during the case showed that 75% of sex offenders who were monitored over a 21-year period were not reconvicted of any offence.

Mike Pemberton, solicitor for F, who was convicted of the rape of a six-year-old boy when he was 11, said his client wanted a fair chance to show that he had reformed.

In addition to hoping I might be able to get a copy of or link to this opinion, I also hope informed readers might be able to use the comments to tell me whether this is huge news or not really that big a deal.

UPDATE:  A couple of helpful readers have sent me this link to the UK ruling [2010] UKSC 17, and have also confirmed my instinct that this is a big deal.

April 21, 2010 in Collateral consequences, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Friday, April 16, 2010

Notable Seventh Circuit opinion upholding 90-month sentence for child porn downloader

While on the road yesterday, I mised a notable Seventh Circuit panel ruling inwhich upholds a relatively lengthy (but still slightly below-guidelines) sentence for a (relatively sympathetic?) downloader of child porn.  The opinion in US v. Pape, No. 09-35413 (7th Cir. Apr. 15, 2010) (available here), starts this way:

Jason M. Pape pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and, on appeal, challenges his sentence. He was sentenced to 90 months’ imprisonment followed by 20 years’ supervised release.  He now claims that the district court failed to address his non-frivolous arguments in support of a two-year sentence including a plea for leniency based on his personal history as an upstanding member of his community and his exceptional family responsibilities for his children, some of whom have disabilities.  In addition, Pape contends that the district court failed to address his argument that disparities in the length of pornography sentences among different districts in Wisconsin and the purported lack of careful empirical study underpinning the child pornography Guidelines suggest that a sentence over two years is too high.

We affirm because the district court adequately considered Pape’s arguments about his history and parenting responsibilities.  Moreover, a district court is presumed to have considered arguments about unwarranted disparities if, as here, it sentences within or below the Guidelines, see United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009).  And, although district courts are certainly free to disagree with the child pornography Guidelines as applied to a particular case as long as the sentence imposed is reasonable, the district court here did not abuse its discretion when it implicitly rejected the imposition of a much lower sentence based on a disagreement with the Guidelines range.

April 16, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Thursday, April 15, 2010

A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!

The exclamation/question that titles this post is my initial response to this remarkable local press story that a helpful student sent my way.  This press report discussed a remarkable local sentence handed down earlier this week in Nevada under the headline "T.F. woman sentenced to life for lewdness charge." Here are the remarkable details:

A Twin Falls woman convicted of forcing a 13-year-old boy to touch her breasts was sentenced Monday to life in prison. Michelle Lyn Taylor, 34, was convicted of lewdness with a minor under 14 in November after a week-long trial in Elko County, Nev., District Judge Mike Memeo’s courtroom.

With the conviction, Taylor faced a mandatory life sentence, and Memeo set parole eligibility after 10 years, the minimum sentence. If released on parole she must register as a sex offender and will be under lifetime supervision.

The district attorney’s office did not offer a plea agreement in the case, said public defender Alina Kilpatrick, who argued the sentence is unconstitutional and doesn’t fit the crime. “The jury was not allowed to know the potential sentence in this case and the Legislature doesn’t know the facts,” she said, alluding to the minimum sentence set by the Legislature in Nevada Revised Statute.

Kilpatrick said despite the parole eligibility after 10 years, there should be no mistake that it’s a life sentence for Taylor.  “She is getting a greater penalty for having a boy touch her breast than if she killed him,” she said.

After he sentenced her, Memeo said he was bound by state statute to impose the life sentence, but said he isn’t sure why the prosecution chose to charge her under that statute. District Attorney Gary Woodbury could not be reached for comment.

Taylor, who lived in Jackpot, Nev., at the time of the crime, kissed a friend’s child, forced him to touch her breast and asked him to have sex with her in February 2008.  Taylor claimed she was intoxicated and doesn’t remember what happened that night.  She told jurors she roughhoused with the boy, but didn’t force him to touch her inappropriately.

Based on the facts stated here, this case sounds like a remarkable test case for the reach and limits of the Eighth Amendment in non-capital punishment settings.  But I cannot help but think there must be more, perhaps a lot more, to this story.

April 15, 2010 in Examples of "over-punishment", Graham and Sullivan Eighth Amendment cases, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (53) | TrackBack

Tuesday, April 13, 2010

Seventh Circuit reverses above-guideline sentence for female sex offender as unreasonable

The Seventh Circuit has a fasciating little reasonableness ruling today in US v. Miller, No. 09-2791 (7th Cir. Apr. 13, 2010) (available here).  Here is how the opinion starts:

Catharine Miller pled guilty to one count of traveling in interstate commerce to engage in prohibited sexual conduct with a fourteen-year-old girl in violation of 18 U.S.C. § 2423(b).  At her sentencing hearing, the district court overruled Miller’s objections to the presentence report and adopted the report’s recommended Guidelines sentencing range of seventy to eighty-seven months.  The government argued for a sentence above the Guidelines range. The court sentenced Miller to a 120-month prison term.  Miller has appealed her sentence. We vacate the sentence and remand for resentencing.

Because there are lots of elements to the Miller case and the Seventh Circuit's ruling, I am disinclined to assert that any single factor explains why this particular defendant prevailed on her sentencing appeal.  But, as evidenced by the word I have emphasized in the title of this post, I do think it is worthwhile to ponder, at least briefly, whether this appeal obviously comes out the same way if the defendant's name was Charles Miller.

April 13, 2010 in Booker in the Circuits, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, April 12, 2010

"Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws"

The title of this post is the title of this notable new paper from Melissa Hamilton now appearing on SSRN. Here is the abstract:

This article argues that the new preventive law focus in sex offender laws is largely ineffective and too costly to personal liberty.  The application of sex offender laws involving civil commitment, sex offender registration, and residency restrictions is often based on an individualized analysis of future dangerousness, i.e., the risk the defendant will sexually recidivate. In assessing future dangerousness, experts and courts place heavy emphasis on the use of actuarial tools, basically checklists that mental health experts use to derive statistical estimates of risk.  This article provides substantiation that actuarial tools, while enjoying the imprimatur of science, suffer from significant empirical faults. 

Yet courts are largely abandoning their gatekeeping roles in accepting the experts’ testimony using actuarial tool predictions of risk without critical review as required by the Daubert and Frye evidentiary standards. The paper theorizes that this is likely a pragmatic strategy considering the current political and public thirst for retribution against sexual predators.  But, use of this empirically-challenged science exacerbates the practice of applying sex offender restrictions to inappropriately labeled individuals.  Finally, this article takes advantage of the interdisciplinary trend of engaging social science with the law on expert evidence.  More specifically, it offers an empirical assessment of future dangerousness opinions within the Daubert/Frye scientific evidence frameworks. The significance of the conclusion reached in this article is clear: if the law continues to rely upon suspect science that results in the wrong individuals being subject to liberty-infringing sex offender laws, then the drain on criminal justice resources will leave the truly dangerous offenders without sufficient supervision at the risk of public safety.

April 12, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Saturday, April 10, 2010

Maryland legislature moving forward on branding sex offender drivers' licenses

As this AP article details, "Maryland senators have passed legislation that would add special coding to sex offenders' driver's licenses."  Here are the basic details:

Senators passed legislation with the provision on Saturday. Sen. Richard Colburn, R-Dorchester, sponsored the amendment, which requires the marking to be done in a way that only law enforcement can understand. He says it would alert police to ask more questions if they stop a registered sex offender with a child.

Opponents say adding the markings is akin to a "scarlet letter" and will make it tougher for those on parole to rejoin society. They add it could drive more sex offenders underground as they try to avoid registration requirements.

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

Friday, April 09, 2010

How should we deal with (mature?) teenagers who knowingly download the worst kiddie porn?

The question in the title of this post is prompted by this intriguing local story from Florida, which is headlined "Teenager pleads guilty to possession of child porn, becomes sex offender." Here is how the piece starts:

Patrick Melton, 17, became a sex offender Thursday after pleading guilty to 50 counts of possession of child pornography.  Hillsborough County sheriff's detectives first learned of Melton's Internet activity in December 2008.  Using a search warrant for his home that following March, they found the images, including one of a man molesting a 2-year-old.

When they tracked Melton down at Tampa Bay Tech, deputies said he admitted downloading them. He told a detective he was 9 years old when an Internet search typo introduced him to child pornography.  He meant to type "hot rods," he said. Instead, he typed "hot bods."

Prosecutor Rita Peters said Melton admitted to authorities that if he had not gotten caught, he might have gone on to touch a child.

Taking into account his age, candor with detectives, stable home environment and the fact that many of the images he viewed were of children within his age bracket, prosecutors offered him a deal: six years of probation with sex offender treatment. Melton took it.

Given the various aggravating factors apparently in the mix here — a long history of downloading, lots of images, image involving very young kids, an admitted interest in molestation — I think there is little doubt that the defendant's age here played a major role in his probation sentence.  But, as spotlighted by other cases from Florida involving severe sentences for teenagers (including two now before the Supreme Court involving LWOP prison terms), Florida prosecutors and judges do not always view teenagers as less culpable than adults.  And there are, of course, statistical reasons to worry that teenager offenders present the highest risk of recidivism.

In light of all these factors, I wonder if readers are generally pleased or generally troubled by the (exceptional?) sentencing outcome in this case.  More broadly, I wonder if folks think there are special reasons that teenagers should get a special break when they are involved in on-line sex crimes.

April 9, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Thursday, April 08, 2010

Mass high court considering GPS tracking rules for sex offenders

As detailed in this Boston Herald article, which is headlined "DAs unite to use GPS on sex offenders," the most popular of modern technocorrections was before the Massachusetts Supreme Judicial Court yesterday. Here are the details:

Allowing sex offenders to roam free without GPS monitoring has district attorneys joining forces to appeal to have judges granted the authority to slap the fiends with ankle bracelets.

The state Supreme Judicial Court yesterday heard both sides of the controversy in a case about a convicted Middlesex County child rapist who objected to wearing a GPS-monitoring device during his 10-year probation term.  “These are people who by their very nature cannot control their sexual impulses and are likely to reoffend,” said Middlesex County District Attorney Gerard Leone, whose office prosecuted Ralph Goodwin, the sex offender at the center of the legal battle.  “It’s paramount we have some means of significant monitoring.”

After he finished jail and civil sentences last summer, the Probation Department requested GPS monitoring for Goodwin.  Superior Court Judge Kathe M. Tuttman, however, ruled she did not have the authority to impose the monitoring.  In her ruling, Tuttman cited a 2009 SJC decision that decided a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively....

Since the summer, about 234 sex offenders have been allowed to remove their ankle bracelets as a result of the SJC ruling.

Cape and Islands District Attorney Michael O’Keefe said it makes sense to give judges the right to decide whether GPS monitoring is appropriate.  “I believe that judges should have the option to make that finding,” he said.  “It doesn’t necessarily mean it would be done in every case.”

Essex County District Attorney Jonathan W. Blodgett agreed.  “It’s just another probationary tool to help keep the public safe,” he said.  “We have an obligation to speak up about this and ask the court to make a decision.”

April 8, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, April 06, 2010

The latest "grand" development in the debate over child porn restitution "settlements"

This new article from the Minneapolis Star Tribune, which is headlined "Possessor of child porn to pay $1,000 in restitution," provides the latest legal update on a case concerning debates over restitution awards in child porn cases." Here are the details:

Across the United States, some purveyors of child pornography have been ordered to pay millions in restitution to their victims.  Others, not a dime.  On Monday in federal court in St. Paul, Brandon Anthony Buchanan -- penniless, without assets and serving more than seven years in prison -- agreed to pay $1,000 restitution for possessing images of a victim identified as "Amy."  The amount was agreed to by prosecutors, the defense attorney, the judge and Amy's lawyer.

It is the principle -- not the amount -- that was important in Buchanan's case, said James Marsh, Amy's attorney.  Buchanan's case, one of more than 400 in which Marsh has asked for restitution around the country, is a sign that more courts accept the idea that possessing even a single child porn photo does measurable harm to victims.  "We applaud the judge for what he's done," Marsh said Monday.

The issue of restitution for child porn victims -- and deciding who pays and how much -- came to the forefront in Minnesota three months ago when U.S. District Judge Patrick Schiltz demanded to know why restitution wasn't being sought in Buchanan's case.  Buchanan had pleaded guilty in May 2009 to possessing child pornography, including images of Amy, considered one of the most widely circulated sets of child porn in the country.  As he does whenever Amy's pictures are recovered, Marsh submitted a letter in Buchanan's case requesting $3.4 million in restitution.

Marsh said he has won restitution settlements ranging from $5,000 to $150,000 in about a third of the cases.  A few courts have ordered millions.  Some have ordered nothing....

Defense attorneys have argued that ordering restitution from everyone who possesses child pornography is better left to civil courts, rather than the criminal system.  Others say that while the possessor of child porn almost certainly causes harm to its victims, determining the weight of that harm -- among potentially millions of offenders -- is nearly impossible...

Schiltz dived into the center of the debate when he issued an order Jan. 4 asking why restitution was not being sought in Buchanan's case.  Schiltz said that Congress has clearly intended that restitution be considered for all crime victims -- including child porn victims. Yet, in Buchanan's case, the U.S. attorney's office and Buchanan's defense attorney agreed that no restitution would be paid.

The prosecutor replied that Amy was, indeed, entitled to restitution.  On Monday, all sides agreed that $1,000 was appropriate.  Officials with the U.S. attorney's office declined to comment further.

Marsh said that $1,000 -- to be paid to the U.S. Clerk of Court -- is the minimum amount he has agreed to in cases where the offender is destitute. "In a world of unlimited possible defendants with limited resources, defendants like Buchanan just aren't of interest to us," he said.

It is telling (and troublesome?) that this article describes the criminal punishment imposed in this case as a "restitution settlement" given that a resolution was reached here once "all sides agreed that $1,000 was appropriate."  Nevertheless, this case formally involved a US District Judge ordering a criminal defendant to pay restitution as part of his (required) punishment for his criminal offense.  Still, functionally, this process does not seem like classic and traditional criminal law.  Whether that functional reality is a virtue or a vice is a terrifically difficult policy question that will surely continue to rage on.

April 6, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, April 03, 2010

DC Circuit rejects 30-year ban on all computer use for sex offender

As detailed in this Wired story, "a federal appeals court Friday overturned a 30-year computer ban imposed on a sex offender caught in an online police sting."  The opinion came in US v. Russell, No. 08-3120 (DC Cir. Apr. 2, 2010) (available here), which begins this way:

Defendant Mark Russell pleaded guilty to one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) (2006).  The district court sentenced him to 46 months of imprisonment and 30 years of supervised release.  A special condition of his supervised release specifies that Russell may not “possess or use a computer for any reason.”  Russell challenges the duration of his supervised release and the computer restriction, arguing that each is substantively unreasonable.  See Gall v. United States, 552 U.S. 38, 51 (2007).  We affirm the length of the supervised release, but vacate the computer restriction and remand for resentencing.

This ruling provides yet another example of how modern technologies are presenting new and interesting issues for sentencing and appellate courts.  The Wired piece provide this bit of additional context:

That inflexible ban on computer use is “substantively unreasonable” and “aggressively interferes with the goal of rehabilitation,” ruled the U.S. Court of Appeals for the District of Columbia.

It’s the latest decision on an issue that has some, but not all, courts moving toward accepting the internet as a basic freedom that even convicts should not be permanently denied. In January, the 3rd U.S. Circuit Court of Appeals in Philadelphia overturned a lifetime internet ban against a child porn offender, calling such bans “draconian” in terms of employment opportunities and “freedoms of speech and association.” But a few months earlier, the first unconditional lifetime internet ban to be appealed was upheld by the Atlanta-based 11th U.S. Circuit Court of Appeals.

April 3, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack