Wednesday, July 14, 2010

Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?

Among the many interesting aspect of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here) is its discussion of possible reform of the sentencing guidelines for child porn offenses.  Consider, in particular, these passages:

We also believe the Commission should conduct a review of — and consider amendments to — those guidelines that have lost the backing of a large part of the judiciary. These reviews should begin with the guidelines for child pornography possession offenses and fraud offenses....

The goal of any such reform would be to update the guidelines to address changing technology and realities surrounding these offenses, improve the consistency of sentences across child exploitation crimes, and ensure that the sentences for ceiiain child exploitation offenses adequately reflect the seriousness of the crimes.

We think the report to Congress ought to recommend legislation that permits the Sentencing Commission to revise the sentencing guidelines for child pornography offenses and that suggests what any revised guidelines might look like....

We believe changes in the use of technology and in the way these crimes are regularly carried out today suggest that the time is ripe for evaluating the current guidelines and considering whether reforms are warranted.  Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants' criminal conduct with the applicable guideline sentencing ranges.  Because the current guidelines are largely mandated by statute, though, legislation will be required to modify them.

The references here to "changes in the use of technology" and to the need for "the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants' criminal conduct" suggest to me that the Justice Department largely agrees with the view of many federal judges that the guidelines are too severe when recommending very long prison sentences for defendants who merely download lots of child porn pictures via file-sharing programs.  I suspect the Justice Department sensibly and wisely believes that reformed federal guidelines recommending shorter (but still significant) prison terms for child porn downloading would lead to more consistency in the sentencing of these offenses.

Of course, DOJ does not here openly urge reductions in guideline ranges (probably wisely, because doing so could prompt a sound-bite political backlash).  But the last sentence of the passage above is likely a give-away of DOJ's fundamental perspective: the US Sentencing Commission would not really need new legislation from Congress in order to  make the child porn guidelines harsher.  And though it is not obvious the USSC needs new legislation from Congress in order to reduce the severity of the child porn guidelines, that the DOJ suggests legislative reforms indicates that it may be eager to get behind a thoughtful and measured reduction in the severity of the current guidelines for child pornography possession offenses.

Recent related posts:

July 14, 2010 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Should we be troubled that some registered sex offenders can get a US passport?

This new piece at CNN, which is headlined "Thousands of sex offenders receive U.S. passports," seem to be trying to get folks alarmed about something that does not seem to me to be too alarming.  Here are the basics:

Thousands of registered sex offenders have received U.S. passports, including at least 30 federal employees, according to a Government Accountability Office report obtained by CNN. The GAO report said the Department of State cannot legally deny passports to registered sex offenders, except those specifically convicted of sex tourism.

The report concluded that about 4,500 U.S. passports of the more than 16 million issued in fiscal year 2008 were issued to registered sex offenders. "Federal statutes authorize the Secretary of State to deny issuance of a passport in certain circumstances, such as while an individual is imprisoned or on parole or supervised release for a conviction for international drug trafficking or sex tourism or is in arrearages for child support," the report states. "However, there is currently no comprehensive program to deny passports to applicants who are registered sex offenders."

The State Department called the report "very misleading" and adding it "conveys more 'shock value' than factual accuracy." In a written response, the department pointed out that only a fraction of 1 percent of the 16 million passports issued in fiscal year 2008 went to registered sex offenders. In addition, the title of the report "fails to convey that GAO found no lawful reasons for the department to deny or revoke the passports of the case study sex offenders based on their status as sex offenders."

"The report appears to suggest, without any foundation, that the Department's issuance of passports to certain Americans facilitated their commission of sex crimes abroad," the department's response said. "There are no facts in the report which show that any of the thirty individuals included in the case studies used his passport to travel to a foreign country to commit a sex crime."...

The GAO report was requested by Sen. Charles Grassley, R-Iowa, and Sen. Max Baucus, D-Montana. The GAO studied data from the National Sex Offender Registry (NSOR). However, the approximately 4,500 sex offenders who received passports in fiscal year 2008 "is likely understated because many of the records in the passport database and the NSOR lacked valid Social Security numbers ... In addition, the NSOR does not currently contain a comprehensive listing of all sex offenders from the states."

The GAO found cases that include a sex offender from Texas who received a passport while in prison, a Delaware man with multiple sex convictions who traveled to the Philippines, Germany and France since receiving his passport, and a Georgia man who has traveled to the Philippines, Ireland and Panama.

Among the federal employees who received passports was an aerospace engineer with NASA, an employee of the Bureau of Engraving and Printing, and a Postal Service carrier who traveled to Taiwan and Japan after receiving his passport.  About 50 of those who received passports either lived outside the United States or "their whereabouts were unknown," the report said.

There are both constitutional and policy reasons why I am inclined to shrug in response to this story.  First, unless a sex offender's sentence or some federal law categorically prohibits leaving the United States, it would be potentially unconstitutional for the State Department to deny all passport application for all persons with a prior sex offense.  Second, any American concerned about sex offenders around their children should probably be pleased to learn that some of them are eager and able to leave the US.  And I certainly do not think it a wise or effective use of US tax dollars for the our government to be trying to track and monitor all sex offenders around the globe.

Of course, no criminals — whether guilty of sex or drug or white-collar offenses — should find it easy to flee the country while still being prosecuted for an offense or otherwise subject to lawful restrictions on their movements.  But once an offender has served his full sentence — whether guilty of sex or drug or white-collar offenses — I do see a strong reason why the US State Department should be chiefly concerned with making certain prior offenders cannot ever leave the country.

July 14, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, July 12, 2010

Swiss justice ministry formally refuses US extradition request for Roman Polanski

I happen to be off-line for most of the day, and the Swiss let an (in)famous sex offender go free.  This article from The Guardian, which is headlined "Roman Polanski escapes extradition to US: Film director goes free after nine months under house arrest in Switzerland," provides the basic details:

Roman Polanski, the film director who has been under house arrest in Switzerland for the past nine months, has been declared a free man after officials decided not to extradite him to the United States.

The Swiss justice ministry said it had decided against handing the fugitive director to the US, where he is wanted for sentencing for having sex with a 13-year-old girl 33 years ago.

"The Swiss justice ministry will not extradite Roman Polanski to the United States," Eveline Widner-Schlumpf, a ministry official said at a press conference in Bern. "The Franco-Polish film-maker will not be extradited to the United States, and the measures of restriction on his liberty have been lifted."

She said national interests had been considered before the decision was made, adding: "Polanski is now a free man." Polanski was arrested on a US warrant last year while in Zurich to collect a lifetime achievement award for his film work. He was kept under house arrest at his Swiss chalet in the mountain resort of Gstaad.

He will now be able to move beyond his garden for the first time. An electronic tag has been removed from his ankle. The Swiss decision is likely to cause diplomatic tensions between Switzerland and the US.

Widner-Schlumpf added: "The reason for the decision lies in the fact that it was not possible to exclude with the necessary certainty a fault in the US extraditionary request."

The Los Angeles Times has this blog report with a title that sums up the official reaction to the Swiss ministry ruling: "Roman Polanski freeing meets with outrage from prosecutors, U.S. State Department."

July 12, 2010 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, July 01, 2010

"Sex offender faces prison for going to movie, authorities say"

The title of this post is the headline of this intriguing local Detroit story which highlights how GPS tracking can play a role in busting a sex offender for going to the wrong pop-culture event.  Here are the details:

A sex offender told to stay away from children is facing up to 15 years in prison for allegedly violating his probation.

Michael Keeler, 46, of Gregory appeared in Livingston Circuit Court today. Authorities say he went to MJR Theater in Brighton June 22 to see the blockbuster film "Toy Story 3," putting himself among children despite his probationary terms.

Livingston Judge Michael Hatty set bond at 10 percent of $10,000. A hearing is set for July 8.

Court records showed Keeler served one year in prison after pleading guilty to a charge of criminal sexual conduct, second degree, involving a child under age 13 in 2008.

His probation included lifetime of electronic monitoring and registry on the state's sex offender list. The judge said a GPS monitoring device confirmed his whereabouts on June 22.

July 1, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections | Permalink | Comments (10) | TrackBack

Split Seventh Circuit upholds seemingly Carr-questionable SORNA conviction

A number of helpful readers have alerted me to a notable split Seventh Circuit opinion today in United States v. Vasquez, 09-2411 (7th Cir. July 1, 2010) (available here), which in the words of one reader "appears on quick glance to thumb its’ nose at the Supreme Court’s holding in Carr." The start of a lengthy dissent by Judge Manion provides a window into the dispute:

In reading the court’s opinion and the recent Supreme Court case Carr v. United States, this fact cannot be lost: there are seemingly two statutes at issue here.  There is § 2250 as we interpreted it in United States v. Dixon, and as the court continues to interpret it, and then there is § 2250 as the Supreme Court interpreted it in Carr.  That being said, I have two principal disagreements with the court’s opinion.  The first is that it gives Carr too limited a reading; the second is that its interpretation of § 2250 renders the statute constitutionally defective.

July 1, 2010 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, June 30, 2010

Notable new district court opinion addressing effort to defend child porn sentencing guidelines

Regular readers know well the robust on-going debate in the federal courts concerning the federal sentencing guidelines and appropriate sentencing for child porn offenses.  Though most detailed written sentencing opinion on the subject have assailed the operation and severity of the federal guidelines for child porn downloading offenses, earlier this year US District Judge John Adams issued a thoughtful opinion in US v. Cunningham, No. 1:09CR154 (N.D. Ohio Jan. 26, 2010) (discussed here) provided a detailed defense of the federal child porn guidelines.  Now I have received a new opinion from US District Judge Lynn Adelman, US v. Diaz, No. 09-CR-302 (E.D. Wisc. June 30, 2010) (available for download below), which takes on the reasoning of Cunningham and "respectfully disagree[s] with the court’s observations." Here is a snippet of this disagreement:

[T]he Cunningham court argued that the fact that certain enhancements apply on a frequent basis does not serve as a basis for negating the guidelines. Id. at 852-53.  But where, as here, the imposition of those enhancements results in sentences approaching the maximum in criminal history category I, the approach developed by the Commission breaks down. Specifically, the Commission developed the criminal history axis of the Grid based on its conclusion that a defendant’s past record of criminal conduct was directly relevant to the four purposes of sentencing: a defendant with a record is more culpable than a first offender and thus deserving of greater punishment; deterrence requires that a message be sent that repeat criminal behavior will aggravate the need for punishment with each recurrence; to protect the public, the likelihood of recidivism must be considered; and repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.  See U.S.S.G. ch. 4 introductory commentary.  If even a first offender approaches the maximum based on the offense level alone, chapter four becomes irrelevant, and a first-time offender is treated similarly to a recidivist.  That is not what the Commission (or the Sentencing Reform Act) intended.

Download Diaz written sentencing memo

The academic in me who is interested in robust sentencing debate is especially intrigued and excited to see these district judges issuing dueling sentencing opinions providing thoughtful and thorough written accounts explaining just how and why they decided to exercise their sentencing discretion in a particular way.  But the citizen in me who is generally interested in federal defendants facing similar sentencing realities for similar criminal conduct is wondering if and when federal appellate courts or the Sentencing Commission or Congress will try to start herding the district court sentencing cats that continue to stray because the current sentencing guidelines appear to most participants to be providing very poor guidance in the vast majority of child porn downloading cases.

Some related prior federal child porn prosecution and sentencing posts:

June 30, 2010 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Fascinating Ninth Circuit ruling on whether prisoners have medical privacy rights

The Ninth Circuit issued an interesting ruling today concerning the medical privacy rights of a prisoner in Seaton v. Mayberg, No. 05-56894 (9th Cir. June 30, 2010) (available here). Here is how the main panel opinion starts and ends:

We address a claim to privacy rights in his medical records of a prisoner being evaluated for civil commitment....

One who goes to a physician in order to obtain medical benefit to himself or his family has substantial privacy interests that may or may not be constitutionally protected. One who is compelled to submit to medical examination for the benefit of the public, to determine whether because of mental disease he is likely to engage in sexually predatory behavior, does not.

June 30, 2010 in Prisons and prisoners, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Thursday, June 24, 2010

Fascinating data on recent trends and circuit specifics for federal child porn sentences

A few weeks ago, US District Judge Gregory Presnell asked whether I had any detailed or circuit-specific data regarding federal sentences for child porn offenses. I responded that the US Sentencing Commission would be the place to get such data, and Judge Presnell inquired of the Commission.  And now I am happy to report that Judge Presnell has provided me with the information that was provided to him, and he has even written up this helpful summary of what the Commission data shows:

Pursuant to my request, the USSC sent me data related to sentences imposed under U.S.S.G. 2G2.2 for the fiscal years 2007-2009. That data is presented in the attached tables.

Nationwide, from 2007 to 2009, the number of sentences imposed under this guideline almost doubled, from 853 to 1,546, and the percentage of below-guideline sentences increased from 30.8% to 51.6%.  Similarly, the average percentage reduction increased from 36.3% in 2007 to 40.3% in 2009.  Thus, during the last fiscal year more than half of all child porn sentences were below the minimum guideline sentence, and the average reduction was approximately 40%.

Excluding the First Circuit and DC Circuit (whose case loads are too small to draw meaningful data), the percentage of sentences below the guideline range from a high of 65% in the Third Circuit to a low of 30% in the Fifth Circuit.  The average percentage reduction is highest in the Second Circuit at 47% and the lowest is the Seventh Circuit at 30%. Overall, there is not great disparity among the Circuits.

Compared with the Circuit Court data, the Middle District of Florida had a high percentage of below-guideline sentences -- 70.6%, but the average percentage reduction was 38.8%, near the national average in fiscal year 2009.  During that same period, the Eleventh Circuit was right at the national average with 51.4% of sentences below the guideline and an average reduction of 39%.

I suspect that any and everyone dealing with the always challenging issues surrounding the sentencing of child pornography offenses will be interested in the data that can be found in the charts available for downloading here: Download Circuit data on USSG 2G2.2 with tables.

Some related prior federal child porn prosecution and sentencing posts:

June 24, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, June 23, 2010

Fascinating review of the costs and challenges of sex offender civil commitment

The AP has produced this recent and effective article, headlined "Sexual predator treatment squeezes state budgets," noting the struggles many states are now having with their sex offender civil commitment laws.  The piece highlights why I do not worry too much about excessive use of state civil commitment of sex offenders: it is likely too expensive for states that have to balance budgets to devote a lot of resources toward keeping a lot of offenders civilly committed.  Here are snippets of the lengthy article:

Keeping sex offenders locked up in treatment after they finish their prison sentences emerged as a popular get-tough tactic in the 1990s, when states were flush with cash. But the costs have soared far beyond what anyone envisioned.

An Associated Press analysis found that the 20 states with so-called "civil commitment" programs will spend nearly $500 million this year alone to confine and treat 5,200 offenders still considered too dangerous to put back on the streets.

The annual costs per offender topped out at $175,000 in New York and $173,000 in California, and averaged $96,000 a year, about double what it would cost to send them to an Ivy League university. In some states, like Minnesota, sex offender treatment costs more than five times more than keeping offenders in prison. And those estimates do not include the considerable legal expenses necessary to commit someone.

The programs have created a political quandary for lawmakers who desperately need to cut spending in the midst of a recession but don't want to be seen as soft on rapists and child molesters. "I've heard people in a lot of the states quietly say, 'Oh, my God, I wish we'd never gotten this law,'" said W. Lawrence Fitch, a professor at the University of Maryland School of Law. "No one would ever dare offer repeal because it's just untenable."...

The heavy financial burden of treating confined sex offenders has left lawmakers with less money as they make agonizing cuts to areas like education and health care. Politicians who spent years cracking down on sex crimes now struggle to pay for their tougher laws. "It's easy to say, 'Lock everybody up and throw away the key,'" said state Rep. Michael Paymar, a St. Paul Democrat who heads a public safety budget panel. "But it's just not practical."

The laws have withstood legal challenges all the way to the Supreme Court. They are considered constitutional as long as their purpose is treatment, not detention. But living up to that standard can cost far more than traditional prison. And the costs persist for years because most inmates will never be released.

The programs have given rise to new and bigger treatment centers: California opened a 1,500-bed facility for sexual predators in 2005. Minnesota opened a 400-bed building last year and plans another expansion at Moose Lake, 110 miles north of the Twin Cities....

The confinement is costly mainly because of the need to hire behavioral therapists, social workers, psychologists and psychiatrists. For every 25 to 50 offenders, there is a five- to six-member treatment team. Parts of the facility resemble a community college campus, with chairs arranged around the edges of rooms for group therapy sessions. There is a separate unit for about 8 percent of the sex offenders who refuse to participate in treatment, and another one for aging clients, some of whom use wheelchairs and walkers....

Minnesota already spends $65 million a year to house and treat sex offenders. State lawmakers usually don't complain about the costs, but they balked when Gov. Tim Pawlenty asked to borrow $90 million to complete the expansion of the Moose Lake facility. They eventually gave him slightly more than half that amount, despite a growing deficit of $1 billion.

"We have to cut something else to pay for it," said Sen. Linda Berglin, a Minneapolis Democrat who supervises the budget for civil-commitment cases as head of a health and welfare spending panel. In most states, the number of confined sex offenders has steadily increased, requiring ever-greater spending.

Iowa spends nearly $7 million to confine 80 offenders, almost double 2005's $3.6 million budget for 48 patients. Virginia's program has swelled from 45 patients five years ago to more than 200 this year, with annual costs climbing from $10 million to almost $16 million.

Some states have steered clear of the civil-commitment system, partly because of financial reasons. In Louisiana, legislation died last year after top lawmakers questioned the cost and constitutional issues. Vermont legislators rejected a similar proposal....

Not all civil commitment programs are financially strained. The cost of Arizona's system actually dropped slightly in the last five years. In Wisconsin, the Sand Ridge center has expanded gradually without any outcry about the money involved.

Wisconsin has released 61 sex offenders since adopting a civil-commitment system in 1994. But in Minnesota, no one has ever gotten out. One man was released provisionally but got pulled back for a technical violation and later died in confinement. "Are Minnesota sex offenders that much more dangerous than Wisconsin sex offenders? Why can't we do that?" asked Eric Janus, an expert on civil commitment who heads William Mitchell College of Law in St. Paul.

Missouri and Pennsylvania have released one patient each. Nebraska has released just one person since 2006. Texas has yet to release anyone from its outpatient program. That compares with states like California, which has put nearly 200 offenders back into the community, and New Jersey, where 123 have been let go.

June 23, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Tuesday, June 22, 2010

Sixth Circuit panel finds five-day sentence for child porn offense substantively unreasonable

The Sixth Circuit handed down US v. Christman, No. 08-4474 (6th Cir. June 22, 2010) (available here), yet another notable sentencing decision in yet another ugly child porn case.  The case appears to have been handled poorly in a variety of ways, as evidence by this explanation at the start of the opinion:

Richard Christman pled guilty to two counts of possessing child pornography in January 2005 pursuant to a plea agreement calling for dismissal of the remaining counts against him, four counts of distribution child pornography. The district court sentenced him to 57 months in prison, a within- Guidelines sentence at the bottom of the 57-71 month recommended range. Several months later, the district court admitted that it had relied on impermissible information outside the pre-sentence report in sentencing Christman, and Christman appealed his sentence to this Court. A panel of this Court agreed, and it vacated and remanded the case for re-sentencing.

At re-sentencing, the district court, over the prosecution’s objection, sentenced Christman to five days in prison—that is, the time that he had spent in custody when first arrested—and fifteen years of supervised release. The court found that this sentence was warranted because Christman had severe back pain, he was his elderly, ailing mother’s primary caregiver, his family believed that he was remorseful, he was a musician and composer, and he had complied with the restrictions of his release on bail. The government appeals, arguing that the district court’s imposition of the nominal prison term cannot reasonably be justified by the factors identified at re-sentencing.

For the reasons set forth below, we find that the sentence was substantively unreasonable, VACATE the new sentence, and REMAND for re-sentencing in light of this opinion. We also direct that this case be assigned to a different judge for resentencing.

June 22, 2010 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Thursday, June 17, 2010

Notable dicta in Quon case that might impact (now common?) sex offender restrictions

In addition to the Dilloncrack retroactivity ruling (basics here and here), the other criminal justice decision from the Supreme Court today came in City of Ontario v. Quon (available here).  Quon concerns various Fourth Amendment issues surrounding a state police department's review of transcripts of salacious text messages an officer sent and received on his department-issued pager. 

Though Quon will be of greatest interest to those involved in traditional debates over privacy and police-practices, the opinion for the Court by Justice Kennedy has this notable flourish that could have some broader impact:

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.

Relatedly, in a rich and spot-on solo concurrence that takes a variety of swipes, Justice Scalia concludes by lamenting the legal challenge presented if and when the Court embraces a doctrine "that requires evaluating whether a given gadget is a necessary instrument for self-expression, even self-identification." 

So, what does this have to do with sentencing law and policy in general or sex offender restrictions in particular?  Well, it is not too much of a stretch to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now "essential means or necessary instruments for self-expression, even self-identification."  But, as regular readers know, sex offenders these days often face release conditions that fully or  significantly restrict their access to the internet and/or social networking websites.  I suspect that this classic Justce Kennedy line from Quon might find its way into a few efforts in lower courts to attack limits placed on some offenders' use of modern means of digital communation.

June 17, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Monday, June 14, 2010

"Seriously ill sex offender may be electronically tagged"

The title of this post is the headline of this notable story about a technocorrections sentence being considered in Ireland.  Here are the details:

A Wicklow man who sexually assaulted a 10-year-old girl may become one of the first offenders to be electronically tagged as an alternative to prison.

The 62-year-old, who cannot be named to protect the identity of his victim, suffers from a serious medical condition and the Prison Service has told the court they may not be able to treat him in jail.  He has been on bail since he was convicted last February while it was established if he could be imprisoned or not.

Today Judge Tony Hunt again adjourned sentencing at Dublin Circuit Criminal Court after hearing that the man was not in court. He had gone into hospital to have a procedure carried out last week but it had not gone well and he remained in hospital.

Judge Hunt said he would consider alternatives to prison on “humanitarian grounds” which may include curfews and electronic tagging. He said he would look at having the man tagged after noting there had been trials of the system.

“I regard this man as a very significant threat to the female half of the population, or at least he was before his illness,” the judge said. “If he’s not incarcerated, and he deserves to be for a lengthy period, there will be a lengthy curfew covering most of the day, save for medical appointments and some sort of exercise which he would be entitled to in prison.”  He adjourned the case until the end of the month when he will finalise a sentence.

I am not sure if electronic tagging in Ireland involves simply GPS tracking with an electronic bracelet or if it involves a microchip implant.  Whatever the particulars, this story reinforces my sense that technocorrection alternatives to incarcerations are likely to be a world-wide reality within a matters of years.

June 14, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

Wednesday, June 09, 2010

A notable district court opinion on the post-Booker ex post facto issue

Thanks to this piece in the New York Law Journal, which is headlined "Use of Current Sentencing Rules Barred for 2003 Confession," I see that a New York district court has issued a notable and quite thoughtful ruling addressing post-Booker ex post facto issues in the context of giving a relatively low sentence to a child porn downloader. Here is how the NYLJ piece describes the case and the ruling:

An admitted possessor of child pornography who was not prosecuted for more than four years following his confession in 2003 cannot be subjected to the longer prison sentences established in the interim under the federal sentencing guidelines, a federal judge has ruled.

Southern District of New York Judge Richard J. Holwell said the Constitution's ex post facto clause -- Article I, Section 9, Clause 3 -- would be violated if Brennan Sweeney were sentenced to a longer prison term than the guidelines called for in 2003 when the FBI raided his apartment. Holwell held that "retroactive application of the guidelines increases poses a 'significant risk of increased punishment,'" in United States v. Sweeney, 08-cr-212.

In October 2003, FBI agents found child pornography on Sweeney's computers. Sweeney consented to an interview and admitted to possessing more than 1,000 images of children. The FBI seized his computers but inexplicably did not arrest Sweeney until March 2008. He pleaded guilty in May 2009 to possessing and distributing child pornography.

The guidelines at the time of his confession called for a sentencing range of two years and three months to two years and nine months. But the current guidelines call for a much longer sentence -- a range of six years and six months to eight years and one month.

Holwell sentenced Sweeney on May 27 and followed with a written opinion explaining why it would be unconstitutional to subject the defendant to a term within the higher range even though the federal statute, 18 U.S.C. §3553(a)(4)(A)(ii), requires application of the current guidelines range.

The full opinion in Sweeney is available at this link.

Related posts on post-Booker ex post issues in the circuits:

June 9, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Monday, June 07, 2010

SCOTUS certification in Juvenile Male: a passive virture that only a Bickel fan could love?

The SCOTUS ruling today concerning the calculation of good-time credits in Bareber v. Thomas (basics here, comments here) is clearly the biggest sentencing story of the day.  But I cannot help but be really intrigued by the Supreme Court's per curiam decision in  in US v. Juvenile Male to deal with a complicated sex offender issue by certifying a question to the Montana Supreme Court (basics here). 

Helpfully, Lyle Denniston has this post with a helpful explanation of the basic factual background of Juvenile Male and the Court's certification maneuver.  Disappointingly, Lyle's post does not indicate when was the last time SCOTUS decided to deal with a cert petition by certifying a question to a state Supreme Court, nor does it speculate just why the Justices concluded why certification rather than a simple cert denied was the approach adopted here.

When I was clerking on the Second Circuit years ago, I became enamored with the authority of federal circuit courts to certify questions to state courts. Because I am generally a fan of federalism, the legal process jurisprudential school, and Bickelian second-look doctrines, the practice through which a federal court could dodge and/or clarify a tough state law issue by certifying questions to the highest court of a state seemed to me almost too cool to be true.  Consequently, I could not help but be a bit giddy this morningn upon hearing that SCOTUS had dusted off this (arcane?) procedure to deal with the tough SORNA issues raised in Juvenile Male.

But, for a host of complicated reasons and especially in criminal justice settings, there do not seem to be too many modern fans of federalism, the legal process jurisprudential school, and Bickelian second-look doctrines.  Thus, I cannot help but wonder if others are not as impressed with the SCOTUS certification move today as I am.  More importantly, I wonder if the certification in Juvenile Male will prove to be a one-trick-pony or if we can and should expect to see some other examples of SCOTUS passive virture for us Bickel fans in forthcoming work by the Court.

Whatever else one thinks of this certification move, I must assert yet again that, at least in the arena of criminal justice adjudication, the early Roberts Court is already a heck of a lot more interesting and unpredictable than was the late Rehnquist Court.

June 7, 2010 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Interesting state certification "dodge" to deal with juve SORNA case from Montana

I am intrigued (and I think pleased) that the Supreme Court this morning in US v. Juvenile Male decided to deal with a complicated issue involving retroactive application of a federal sex offender notification provision for adjudicated juvenile delinquents by certifying a question to the Montana Supreme Court. The per curiam order in this case has the SCOTUS Justices asks this question of the Montana Justices:

Is respondent’s duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register asa sex offender, see Mont. Code Ann. §§46–23–502(6)(b), 41–5–1513(1)(c) (2005); State v. Villanueva, 328 Mont. 135, 138–140, 118 P. 3d 179, 181–182 (2005); see also §46–23–502(9)(b) (2009), or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federaljuvenile-supervision conditions, see §46–23–502(10) (2009); 2007 Mont. Laws ch. 483, §31, p. 2185?

I am uncertain whether this "passive virtues" approach to dealing with the Solicitor General's cert request following Ninth Circuit's ruling in Juvenile Male is a clever or curious dodge of a complicated sex offender registration issue.  But I am certain that this approach shows the SCOTUS Justices' continued concern with at least some aspects of the scope and operation of federal SORNA provisions.

June 7, 2010 in Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, June 03, 2010

Ohio Supreme Court declares unconstitutional changes to state sex offender rules pushed by feds

The Ohio Supreme Court handed down an intriguing sex offender registration ruling this morning in State v. Bodyke, No. 2010-Ohio-2424 (June 3, 2010) (available here). The Ohio Supreme Court does everyone the favor of producing an official press release with its decisions, and the Bodyke press release summarizes today's ruling this way:

In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.

Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.

Though a "narrowly tailored" decision, this ruling could and probably should have an interesting ripple effect in state compliance with the federal mandates of the federal Adam Walsh Act.  Indeed, a footnote near the start of the Bodyke opinion highlights why Ohio is something of a path-breaker in this arena:

FN 4: Ohio is the only state to have complied with the [federal AWA] mandate, however. Greg Bluestein (December 1, 2009), “Ohio lone state to adopt sex-offender rules,” in Canton Rep.com, available at http://www.cantonrep.com/ohio/x2072228737/Ohio-lone-state-to-adopt-sex-offender-rules (last visited Mar. 22, 2010). The deadline for compliance has been extended from July 2009 to July 2010, but it appears that many states will still be unable, or unwilling, to comply. Id. For manystates, the costs of compliance with the act will far outweigh the ten percent reduction in funding. The cost for Illinois, for example, has been estimated at nearly $21,000,000 to comply with the Act in the first year, but that it will lose less than $1,000,000 if it does not.  See Liz Winiarski, Facing the Compliance Deadline for the Adam Walsh Child Protection and Safety Act, States are Weighing all the Costs (2009), 14 Pub.Interest L.Rep. 192, 193.

June 3, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, June 02, 2010

Eleventh Circuit panel reverses ruling that 30-year mandatory AWA sentence for attempted sex offense is unconstitutional

Long-time readers may recall a notable district court opinion in US v. Farley from September 2008 (discussed in this post), which found unconstitutional a mandatory minimum term of 30 years imprisonment for a defendant who travelled across state lines in an effort to engage in sexual activity with a fictious child.  (Some may also recall the interesting twist, discussed in this February 2009 post, that a group of House Republicans filed a brief in the Eleventh Circuit contending that the 30-year mandatory minimum prison sentence was constitutionally sound). 

This afternoon an Eleventh Circuit panel issued this 112-page opinion in Farley, which starts and ends this way: 

In the Fall of 2006, Kelly Farley was a thirty-seven-year old businessman living in Texas with a pregnant wife and five children, ranging in age from one to fourteen. His interest in families was not limited to his own, and his sexual interests extended beyond what our society and its laws will tolerate. Farley is sexually attracted to girls he described as “still innocent, but starting to bud a little,” and he wanted to have sex with a girl who was around nine to eleven years old. Using the internet, he made contact with the mother of a child of that age and set out to persuade her not only to let him have sex with her daughter but also to join him in sexually violating the child.

To reach that goal Farley engaged in a steady stream of chat room conversations, emails, and phone calls over a period of seven months with the mother, leading up to his arrival in Atlanta carrying directions to the place where he planned to rendezvous with her and her eleven-year-old daughter. Farley’s actions led to his arrest, which led to his trial, which led to his conviction and sentence, which led to the government’s appeal of that sentence, which led to Farley’s cross-appeal of both his conviction and sentence, all of which led to this opinion....

We AFFIRM Farley’s convictions on both counts, and his sentence on Count Two.  We REVERSE the district court’s order declaring unconstitutional the application of the mandatory minimum sentence under 18 U.S.C. § 2241(c), VACATE Farley’s sentence on Count One, and REMAND with instructions to impose a sentence no less than that required by § 2241(c).

The discussion of Eigth Amendment law and its application runs roughly the last 20 pages of this long opinion and it relies heavily on the Supreme Court's 1991 Harmelin ruling in the course of deciding that "the thirty-year sentence required by § 2241(c) in light of Farley’s crime does not lead to an inference of gross disproportionality." Here is some notable passages from this discussion:

The crime in Harmelin was possession of 672 grams of cocaine.  The crime here is travel across state lines with intent to sexually violate an underage child.  While it is true that Farley, through no fault of his own, was unable to inflict that harm on an actual victim, the same could be said of Harmelin.  After all, the 672 grams of cocaine he possessed was seized by police before any of it could be further distributed or consumed, thereby preventing harm to society.  See id. at 988, 111 S.Ct. at 2698 (lead opinion)....

The Court stated in Harmelin that the “possession, use, and distribution” of illegal drugs are serious problems affecting the health and welfare of the population, and it dismissed the argument that Harmelin’s crime was nonviolent and victimless as “false to the point of absurdity.”  Id. at 1002, 111 S.Ct. at 2705–06.  By the same token, the sexual abuse of children, and the use of the internet to facilitate that abuse, are serious problems affecting the health and welfare of the nation.  The Supreme Court, this Court, and other courts have expounded at length on the severity of the crimes involving the sexual abuse of children and the extent of the harm caused by those crimes.....

We would find any suggestion that child sexual abuse is a nonviolent crime as absurd as the Supreme Court found the same suggestion about possession of 672 grams of cocaine.  See Harmelin, 501 U.S. at 1002, 111 S.Ct. at 2706 (plurality opinion).  Even more so.

I would expect that the defendant in this case to seek en banc and/or cert review of this Eighth Amendment ruling by the panel in Farley.  And I would predict, at least as of this writing, that the full Eleventh Circuit and the Supreme Court will not want to hear this case and that this Circuit ruling will thereby be allowed to stand.

Some related posts:

June 2, 2010 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Elderly sex offender gets long sentence for not checking ID before taking dirty pictures

This local story out of Michigan, which is headlined "Sex offender, 73, confused why his photos of nude teens caused such a legal fuss," reports on an interesting case involving an old pervert getting in big trouble for not figuring out how to refine his prurient interests.  Here are the details:

Charles Judson Holbrook, sentenced twice for being a child sexual predator, says he doesn't understand why his photography of nude teens has caused such a fuss.  Holbrook, 73 ... was sentenced to 15 to 40 years in prison Tuesday by Kent County Circuit Judge James Robert Redford for taking pictures of girls as young as 14 in exchange for money they used for drugs and shopping.

The incidents occurred between 2003 and 2009 involving three girls, all now older than 18, who lived in or had a friend living in Holbrook's neighborhood.... Three women told a jury Holbrook plied them with gifts and cash to pose nude or semi-nude for photos.

A 23-year-old woman said she was 16 or 17 when she began accepting money from Holbrook to have her picture taken in various states of undress -- including photos taken when she was pregnant at age 17.  She said she used the cash she would get for the photo sessions to buy drugs and alcohol.

Two other women said they posed for Holbrook as teens.  One of the girls was 14 at the time she was photographed.  Another said she posed with other girls and would help recruit them to go to Holbrook's house, telling them they could make money.

The women said they would travel with Holbrook to area parks, and he would treat them to dinner, usually giving them money.  Two of the women also said Holbrook offered them money to have sex, which they refused.  None of the victims showed up for Tuesday's sentencing.

Holbrook's attorney, Freeman Haehnel, pointed out that the girls would show up to Holbrook's home uninvited and freely took money in exchange for posing.  "I don't know who the predator is here," Haehnel said. "It seems both parties were using each other."

Holbrook appeared flummoxed by the whole series of events as the frail man looked around the room for family members.  "I don't understand all this fuss over my picture-taking," Holbrook said.  "All this over my picture-taking?"  Holbrook said he has been fascinated by photography for more than 60 years.

In 2001, Holbrook pleaded guilty to charges he took nude photos of girls whom he met and befriended through his connections as a long-time sports fan and booster club volunteer in the Wyoming and Godfrey Lee school districts.  Holbrook also pleaded guilty to a charge of having sex with a 15-year-old girl.

He was sentenced to one year in jail by then-Kent County Circuit Judge David Soet.  In his earlier case, Holbrook was turned in by a photo developer.

The latest charges were a result of a victim coming forward, although the photos were developed at area drug and grocery stores where Holbrook would have his victims drop off the film and pick up the photographs.  "If I thought there was a problem with my pictures, why, the corner drug store would not have touched them," Holbrook told Redford.

Redford called Holbrook's contentions "utter nonsense" and "completely fictitious." "This case is not about a 73-year-old man's fixation with cameras," said Redford. "This is about a predator taking sexually predatory advantage of vulnerable girls over a period of decades."

The best-case scenario for Holbrook would have him leaving prison at age 88.  But Haehnel said considering Holbrook's health, the sentence handed down Tuesday is tantamount to a life sentence.

I believe that, had the girls photographed reached their 18th birthday when they started posing for cash, then Charles Judson Holbrook's behavior would have been not only legal, but constitutionally protected First Amendment activity.  Thus, it seems that the real key to Holbrook's crime was his failure to ask for ID when teenage girls came to his door asking to be paid nude models. 

In this context, it also bears noting that many states are prepared and eager to treat teens as adults when they commit crimes --- for example, this recent local story reports on Michigan charging a 14-year-old as an adult for a home invasion --- but they then readily assail someone like Charles Judson Holbrook for treating teens like adults in another context.  Holbrook's surprise about his functional life sentence for taking nude pictures of teens perhaps makes sense given that Michigan asserts that teens can and should be treated like adults in other criminal justice settings.

I wonder what the folks at Liberty Central, who claim a commitment to "Founding Principles" of "limited government, individual liberty, free enterprise, ... and personal responsibility" would say about an old guy getting a functional life sentence for simply running his own small (teen porn production) business. 

June 2, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Tuesday, June 01, 2010

Some intriguing who and how dynamics in the Carr ruling reversing sex offender's SORNA conviction

The substance of the Supreme Court's opinion this morning in Carr (basics here), which reverses a sex offender's failure-to-register federal conviction, is mind-numbing even for hard-core sentencing fans.  The decision is focused only on statutory interpretation: he majority declares that the criminal statute, 18 USC § 2250, does not apply to sex offenders whose interstate travel occurred before the effective date of the Sex OffenderRegistration and Notification Act (SORNA); the dissent contends that SORNA's statutory text should be read to reach preenactment as well as postenactment travel by sex offenders.  Along the way, we learn about congressional legislative drafting manuals, and the dissent even provides a remarkable sting cite to nine state legislative drafting manuals (with parentheticals).  Woo hoo!

Despite the drab substance of the Carr opinions, the authors, votes and approaches in the Court's work here merits comment and reflection:

First,it is interesting and notable that the two former prosecutors on SCOTUS, Justices Sotomayor and Alito, wrote the majority and dissenting opinions.  It is likewise interesting and notable that the two female Justices also split in this case.  I cannot help but suspect that the sex offender context may have prompted Justice Ginsburg to be less sympathetic than usual to the appealing defendant here.

Second,it is interesting and notable that the majority opinion by Justice Sotomayor relied a bit on legislative history, but did not mention statutory construction canons like the rule of lenity and constitutional doubt, to reach a pro-defendant statutory ruling.  This strike me as backward because I think Congress likely wanted SORNA to have a very broad reach, yet I also think pro-defendant statutory construction canons should be the chief way to force Congress to be very clear with its statutory text when it wants a criminal statute to have a very broad reach.

Third,it is interesting and notable that Chief Justice Roberts did not join Justice Scalia's brief concurrence complaining about the majority's reliance on legislative history, and also that Justice Alito's dissent also played up legislative history to some degree.  It seem that Justice Scalia's antipathy for reliance on legislative history is not gaining any new converts among the new Justices.

Fourth, both the majority and dissent note lots of circuit splits and lots of potential constitutional concerns with aspects of SORNA that are not directly addressed in the Carropinion.  I think this means we can and should expect a docket filled with at least a SORNA case or two in many future SCOTUS Terms.

June 1, 2010 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Sex offender prevails with challenge to SORNA conviction in Carr

SCOTUSblog already has news on the first Supreme Court opinion handed down this morning, and it is a win for a sex offender appealing his SORNA conviction in Carr.  Here is the early SCOTUSblog report:

We have the first opinion: 08-1301, Carr v. United States.... The opinion is by Justice Sotomayor, reversing and remanding....

The vote is 6-3, with Justice Scalia joining most of the Sotomayor opinion but filing a concurrence in part and in the judgment. Justice Alito dissents, joined by Justices Thomas and Ginsburg.... The Court rules that a 2007 law (SORNA) that requires sex offenders to register does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

This interesting case appears to have produced an interesting vote line-up (and includes yet another pro-defendant vote from the Chief Justice).  The full Carr opinion is available here, and I will likely comment in more detail in a later post once I have a chance to review the Justices' work in detail.

June 1, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack