Monday, August 02, 2010

"Department of Justice Releases First National Strategy for Child Exploitation Prevention and Interdiction"

The title of this post is the headline of this new press release from the US Department of Justice.  Here is how the release starts:

Attorney General Eric Holder today announced that the Department of Justice released its first-ever National Strategy for Child Exploitation Prevention and Interdiction. The strategy also provides the first-ever comprehensive threat assessment of the dangers facing children from child pornography, online enticement, child sex tourism, commercial sexual exploitation and sexual exploitation in Indian Country, and outlines a blueprint to strengthen the fight against these crimes. The strategy builds upon the department’s accomplishments in combating child exploitation by establishing specific, aggressive goals and priorities and increasing cooperation and collaboration at all levels of government and the private sector.

As part of the overall strategy, the U.S. Marshals Service is launching a nationwide operation targeting the top 500 most dangerous, non-compliant sex offenders in the nation. Additionally, the department will create a national database to allow federal, state, tribal, local and international law enforcement partners to deconflict their cases with each other, engage in undercover operations from a portal facilitated or hosted by the database, share information and intelligence and conduct analysis on dangerous offenders and future threats and trends. The department also created 38 additional Assistant U.S. Attorney positions to devote to child exploitation cases, and over the coming months will work to fill the vacancies and train the new assistants in this specialized area.

"Although we’ve made meaningful progress in protecting children across the country, and although we’ve brought a record number of offenders to justice in recent years, it is time to renew our commitment to this work. It is time to intensify our efforts," said Attorney General Holder. "This new strategy provides the roadmap necessary to do just that – to streamline our education, prevention and prosecution activities; to improve information sharing and collaboration; and to make the most effective use of limited resources. Together, we are sending an important message – that the U.S. government, and our nation’s Department of Justice, has never been more committed to protecting our children and to bringing offenders to justice."

"Thanks to law enforcement operations like Operation Nest Egg and Operation Achilles, the department and our law enforcement partners have brought thousands of offenders to justice in the last year. But this progress is only a start," said Acting Deputy Attorney General Gary G. Grindler. "Tangible steps outlined in the National Strategy will bring our fight to the next level."

For more of the particulars, a 280-page report to Congress details this "National Strategy to Combat Child Exploitation, Prevention and Interdiction" and is available at this link.  Notably, I found relatively little discussion of sentencing issues in this huge document, though the report does include many anecdotal reports of long sentences imposed on some of the worst child sex offenders.

August 2, 2010 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, July 29, 2010

Split en banc Eleventh Circuit rules child molester's 17½-year sentence substantively unreasonable

I had an inkling that the full Eleventh Circuit was working on a doozy of an opinion in US v. Irey, a child sex sentencing case in which the circuit nearly a year ago granted en banc rehearing sua sponte after a panel had affirmed a below-guideline sentence (background here and here and here).  And, sure enough, while I was out enjoying an Ohio summer family tradition, the Eleventh Circuit issued an opinion this afternoon in Irey which reverses a below-guideline sentence in for what everyone agreed was an "utterly gruesome" sex offense.  The majority opinion (per Judge Carnes) and multiple other opinions, including dissents, run a total of 256 pages and can be accessed at this link.

Because my belly is full of fried dough, I may not be able to make it through all of the Ivey opinions for a little while.  Fortunately, David Oscar Markus at his blog has this effective summary of the main themes of the various opinion.  And the introduction of the majority opinion by Judge Carnes highlights the heart of the holding:

“The federal courts of appeals review federal sentences and set aside those they find ‘unreasonable.’”  Rita v. United States, 551 U.S. 338, 341, 127 S. Ct. 2456, 2459 (2007) (citing United States v. Booker, 543 U.S. 220, 261–63, 125 S. Ct. 738 (2005)).  With that statement the Supreme Court opened its opinion in the Rita case. Later in the opinion the Court was more specific and emphatic:

In sentencing, as in other areas, district judges at times make mistakes that are substantive.  At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur.  Our decision in Booker recognized as much.  

Rita, 551 U.S. at 354, 127 S. Ct. at 2466–67.  We believe that the Supreme Court meant what it said in the Rita opinion and elsewhere about our duty to correct sentencing mistakes. At the same time, we recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment. Even so, the sentence in this case can withstand review only if deference amounts to abdication, if sentencing discretion is unbridled, and if “unreasonable” is a hollow term.  The sentence that the district court imposed is a clear error in judgment, a mistake, and it is our responsibility to “correct such mistakes when they occur.”

The sentence is substantively unreasonable primarily, but not solely, because of the nature and extent of William Irey’s criminal conduct.  The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children.  But the sexual crimes that Irey committed against some of the most vulnerable children in the world set him apart.  He raped, sodomized, and sexually tortured fifty or more little girls, some as young as four years of age, on many occasions over a four- or five-year period.  He also scripted, cast, starred in, produced, and distributed worldwide some of the most graphic and disturbing child pornography that has ever turned up on the internet.

The horrific nature of Irey’s crimes resulted in an adjusted offense level that would have led to an advisory guidelines range of life imprisonment.  Because the government had charged all of Irey’s crimes in just one count, the statutory maximum was 30 years and that had the effect of reducing the guidelines range to 30 years as well.  The district court, however, did not impose that sentence.  Instead, after deciding that pedophilia was an “illness” that had impaired Irey’s volition, and pronouncing that Irey himself was a victim, like all of the little children he had sexually violated for so long, the district court deviated downward from the 30-year guidelines range and imposed a sentence of only 17½ years.  Our duty to set aside unreasonable sentences requires that we set aside this one.

I suspect that by this weekend I will find my way through all the Irey opinion and will blog some thoughts about the particulars.  As a general matter, I think it is essential for circuit courts step up to their obligation to conduct substantive reasonableness review and to give more content to the substantive provisions of 3353(a).  Now here is hoping that the Eleventh Circuit will also give substantive reasonableness review some teeth to reverse some sentences that seem to be too long in light of 3353(a)'s parsimony provision (even if they are within-guideline sentences) and not just to reverse sentences like William Irey's that seem too short.

Related posts on Irey case:

July 29, 2010 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, July 28, 2010

New York Times editorial urges review of white-collar and child porn sentences

This morning's editorial page of the New York Times includes this thoughtful piece titled "Rethinking Criminal Sentences." Here are excerpts:

Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission....

As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.

Possession of a single piece of child pornography, for example, is supposed to result in a five-to-seven-year sentence — longer with aggravating circumstances — but many judges instead are imposing probation or one year for first offenses. Many federal judges have told the sentencing commission that the child pornography guidelines are far too severe.

The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take. The rules for child pornography, for example, include extra penalties for using a computer, but everyone in that repugnant world uses a computer, rendering the rules obsolete.

The key in both areas is helping judges find ways to differentiate the worst offenders from those who have caused less damage or are less of a threat to society. White-collar sentences are now based on the size of the fraud, but that may not be the best way to measure the role of a defendant or the venality and damage involved.

As repellent as child pornography is, it does not help judges when someone found with a few photographs is held to similar standards as someone disseminating thousands of them. These are sensitive areas, but a thoughtful re-examination by the commission and Congress could bring new respect for the federal judiciary.

Recent related posts:

July 28, 2010 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, July 26, 2010

Notable discussion of federal child porn sentencing in Connecticut

The Connecticut Law Tribune has this notable new piece on federal child porn sentencing headlined "Discretion Debate: Study, attorneys note inconsistent sentences in child pornography cases."  Here are excerpts:

The arrests and convictions are in the news every week, and often the details make us cringe.  In most cases, the bottom line is that some guy has been caught with child pornography on his computer.  Just last week, David Besaw, of Newington, was sentenced to 32 months in prison by U.S. District Judge Stefan Underhill for possessing child porn.  Earlier in the year, Kevin Davis, of Putnam, was sentenced to just under four years by Chief U.S. District Judge Alvin Thompson for possessing the graphic sexual images involving children.

In April, Judge Vanessa Bryant sentenced William Golia, of New Haven, to five years in prison for the same crime. A month earlier, Judge Janet Bond Arterton sentenced an Old Saybrook man, Joseph Rock, to 6 ½ years behind bars for child porn possession. And last year, Judge Robert Chatigny sentenced Roger Chapell of Manchester to 14 months for possessing the child porn.

This is but a small sampling, but it makes two things clear: Child porn convictions are distressingly common.  And sentences are not very consistent.

Such sentencing disparities – especially when it comes to child porn and white-collar financial crimes – have prompted the U.S. Department of Justice to call for “a comprehensive review” in its most recent report to the U.S. Sentencing Commission....

Longtime New Haven defense attorney William F. Dow III, of Jacobs, Grudberg, Belt, Dow & Katz, handles many of the child porn cases.  He’s noticed sentencing disparities in Connecticut, and said it may reflect a change in thinking on the part of some judges.

“I think what’s happened is judges have realized that looking at child porn does not equate to an action of molesting children,” said Dow....

To be sure, all federal child porn cases are not alike.  At the low end is possession of child pornography, where the sentencing guidelines are voluntary and judges’ discretion most often comes into play.  For more serious charges, Congress has instituted mandatory minimum sentences, which were not affected by the 2005 Supreme Court ruling....

But in cases where judges have options, Hartford attorney M. Hatcher “Reese” Norris, of Butler, Norris & Gold, said there’s often a good reason why one child porn defendant is sentenced more harshly than another.  “Some of the sentences may have involved a different number of images and different types of images…sadomasochistic…that obviously has an impact… so it’s hard to put them all in one category,” explained Norris....

“The guideline sentences are certainly astronomically high and just way out of proportion to the criminal charge,” said Dow.  “That’s not to say this is pleasant stuff or children aren’t being exploited but child pornography standing alone is a disquieting quest that is inevitably pursued by people who have some emotional or mental health deficits.”  Dow described the typical child pornography defendant as “sad sacks, lonely and despondent people.”...

The issue of discretionary sentencing has been in the political spotlight in Connecticut, where Judge Chatigny has been accused by some conservatives of handing out light sentences in sex crime cases.  This came to light after Chatigny was nominated for the 2nd Circuit Court of Appeals....

Norris said lawyers aren’t sitting around strategizing as to how to get on a certain judge’s docket in the federal child pornography cases because one is perceived as so much more lenient than another.  But Dow admitted: “Yes, a particular judge can make a difference in terms of sentence,” but said that’s the case with all sorts of crimes, and not just child pornography.

Some related prior federal child porn prosecution and sentencing posts:

July 26, 2010 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, July 22, 2010

The messy realities of Ohio's adoption of AWA sex offender registration rules

A helpful reader altered me to this local article which provides a window into just some of the many messy issues involved in Ohio's on-going effort to get conform its sex offender registration rules to comply with the federal Adam Walsh Act.  The piece is headlined "Sex offender reclassifications will take months; One case shows how new ruling affects law on registration," and here are some highlights:

George Anderson, a rapist designed a Tier III sex offender, was convicted by a Montgomery County jury for failing to verify his address. On Friday, July 16, the Ohio 2nd District Court of Appeals voided his conviction, citing the June 3 Ohio Supreme Court decision that eliminated reclassifications under the Adam Walsh Act....

These types of decisions will likely continue during the coming months, said Margie Slagle, staff attorney with the Ohio Justice and Policy Center. “Thousands and thousands of petitions were filed across the state,” Slagle said.

Twenty-eight counties were awaiting the Supreme court’s ruling before taking any action on challenges to Walsh. Nine, including Montgomery, issued county-wide stays, according to a brief filed by the Ohio Public Defender.

Anderson was originally classified a “sexually oriented offender,” the lowest designation under the state’s Megan’s Law. He was required to register his place of residence annually for 10 years. Under the Adam Walsh Act, which replaced Megan, he was reclassified as a Tier III offender — the highest level — and required to report every 90 days for the rest of his life....

The high court’s ruling kept the Walsh system for new offenders, but ordered the 26,000 offenders who were reclassified to be returned to the old system and its requirements. “It’s going to make it confusing,” said Mercer County Sheriff Jeff Grey, who heads the Buckeye State Sheriff’s Association’s committee on sexual offender notification.

Under the old system, 77 percent of offenders were in the lowest category and 18 percent were in the highest as “sexual predators.” Under Walsh, the highest category, Tier III, contained 54 percent.

That tripled the workload for sheriff’s offices, with more offenders visiting four times a year instead of annually, Grey said. “That’s less time that we have a deputy out physically looking” to see if offenders live at the addresses they give, Grey said.

Attorney General Richard Cordray, whose office notified all affected offenders in 2008 that their designation had changed, has asked the Supreme Court to reconsider its decision.  He also has included a request for clarification concerning those offenders who did not have court hearings to determine classification, such as those convicted in other states.  Ted Hart, a spokesman for Cordray’s office, said staff was manually going through all records to determine which defendants had court hearings.

July 22, 2010 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, July 19, 2010

Effective report on the ratcheing back of Georgia's sex offender residency restrictions

The AP has this effective new report on the legislative softening of Georgia's sex offender residency restriction. (Hat tip: C&C)   The piece is headlined "Ga. softens once lauded strict sex offender law," and here are excerpts:

Georgia was lauded four years ago by conservatives for passing one of the nation's toughest sex offender laws. But the state has had to significantly — and without fanfare — scale back its once-intense restrictions.

Georgia's old law was challenged by civil liberties groups even before it took effect. After losing court battle after court battle, state legislators were forced to make a change or a federal judge was going to throw out the entire law.  Now that the restrictions have been eased, about 13,000 registered sex offenders — more than 70 percent of all Georgia sex offenders — can live and work wherever they want....

Georgia's strict law ran into trouble because it cast too wide a net, targeting sex offenders that committed their crimes years before the tough law was passed in 2006.... Gov. Sonny Perdue signed the changes into law in May, allowing the 13,000 or so registered sex offenders who committed their offense before June 4, 2003, to live wherever they choose.  The date was picked because that's when the state's first sex offender overhaul took effect. Those restrictions were then strengthened three years later....

"The bottom line was that the hammer was about to fall on us, and I was deeply concerned that the entire statute was in jeopardy," said state Sen. Seth Harp, who helped push the latest revision.  The changes in the law also allow some offenders to petition to get off the registry, clear the way for disabled and elderly offenders to be exempt from residency requirements and no longer require sex offenders to hand over Internet passwords.

Iowa has also scaled back some of its restrictions under pressure from the law enforcement community.  The 2006 law there banned sex offenders released from prison from living within 2,000 feet of schools and other places where children gathered, but lawmakers revamped it after lobbying from the Iowa County Attorneys' Association.

The new rules leave the 2,000-foot ban in place for the highest-level offenders, such as sexual crimes involving a child. It also set up 300-foot "no loiter" zones that ban all offenders from lingering around the facilities.  "It's better than what we had, but it still fosters a false sense of security," said Corwin Ritchie, the association's executive director. "It does target the predator-type who might be sitting within sight of a school, but we have so many sex offenses going on within people's homes, we forget those type of victims."

Many states are moving in the opposite direction.  At least five in 2009 tightened residency restrictions for sex offenders, according to the National Conference of State Legislatures. California and several other states are considering more changes this year.

"It's something that states are still struggling with," said Jill Levenson, a Lynn University professor who specializes in sex offender policies.  "One side argues the laws aren't punitive, but the other side of the argument is that once people enter into a plea and agree to something, you can't come back years later and change it."

July 19, 2010 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

California struggling with new challenges posed by GPS technocorrections

Regular readers know that I view technocorrections like GPS tracking as a common punishment of the future, and that is one reason I find especially notable this local piece detailing California's problems with this form of technocorrections now.  The piece is headlined "Sex offenders unwatched as parole struggles with GPS system," and here are excerpts:

Two special reports by the state Office of the Inspector General found Corrections' GPS policies were confused at best and non-existent at worst.

The full technological abilities of the system aren't being used, agents and supervisors aren't properly trained and agents are so overloaded with GPS busy work they aren't able to do other vitally important checks in the field, according to the reports. Overall, the reports concluded, Corrections is not aggressively monitoring sex offenders and the public is being given a "false sense of security."...

"Parole agents are so busy tracking dots on a computer screen, they're not out making home visits, checking the guy's workplace, talking to family members," said Melinda Silva, president of the Parole Agents Association of California. "Agents are spending the bulk of their time running tracks including at home and on the weekends."

Jessica's Law, passed in 2006, started the ball rolling on lifetime GPS monitoring of sex offenders. Then the Garrido report added more responsibilities and the Gardner report still more.

California leads the nation in GPS monitored parolees -- 6,500 -- at a cost of $60 million a year. Depending on arrests, there are typically about 250 sex offender parolees on GPS in Kern County.

Silva said the state isn't taking into account how the program has increased agents' workload and whether the work is actually accomplishing what the public expects. "People believe the GPS means we know where they are 24/7 and we don't," Silva said. "We're paying millions for GPS and we're not getting much out of it because agents don't have time to do the work."

Now, she said, State Sen. George Runner, who authored Proposition 83 establishing Jessica's Law, has a bill involving Facebook, MySpace and other social networking sites that she feared would add even more to agents' plates.

Not so, Runner said. His bill, SB 1204 which has passed the Senate and the Public Safety committee in the Assembly, would simply require that sex offenders register their online and e-mail addresses as well as their instant messaging user names just like they do their physical addresses.

Silva argued that if it becomes a crime for a sex offender not to register their electronic info, that makes it absolutely incumbent on the agent to check the sites. "Who enforces that if not us?" she asked. "It's ludicrous to say there's no extra work."

As for whether the GPS program has been a success, Runner said it's an evolving technology that should not be thought of as a cure-all. "It's just one tool," he said.

There have been successes and failures with GPS, he acknowledged. But he firmly believes the technology and its use will continue to improve. "That said, there have been problems with implementation." And he said he was "frustrated" with some of Corrections' responses to recommendations about how to do better.

Some related older posts on GPS tracking and related technocorrections:

July 19, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections | Permalink | Comments (9) | TrackBack

Friday, July 16, 2010

Two notable criminal justice initiatives to be on Oregon ballot in November

As detailed in this local article, which is headlined "Crime, medical marijuana initiatives qualify for Nov. 2," Oregon now joins Arizona and California (and others?) with marijuana ballot initiatives going before voters this fall. In addition, as the article further explains, Oregonians will also be considering sentencing issues via direct democracy:

Oregonians will vote Nov. 2 on mandatory prison time for repeat felony sex offenders and drunken drivers, and state licensing of dispensaries for purchases of medical marijuana. Secretary of State Kate Brown announced today both had obtained more than the 82,769 signatures required to qualify them for the ballot....

The crime initiative would set a 25-year mandatory minimum prison sentence for repeat offenders in any of four felony sex crimes.  It also would require a 90-day jail term for a third drunken-driving conviction, which would be considered a Class C felony, if two previous convictions were within the past 10 years....

The medical marijuana initiative would amend the law that voters passed in 1998.  The law allows patients with specified medical conditions, or their designated caregivers, to grow marijuana — but it does not allow its sale. The initiative would enable the state Department of Human Services, which administers the current program, to license dispensaries where medical marijuana can be obtained.

July 16, 2010 in Elections and sentencing issues in political debates, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Second Circuit reverses another child porn sentence based on its Dorvee opinion

As regular readers may recall, the Second Circuit issued back in May a significant reasonableness ruling in the child porn Dorvee case (basics here; commentary here).  Today in US v. Tutty, No. 09-2705 (2d Cir. July 16, 2010) (available here), another Second Circuit panel relies on Dorvee to reverse another child porn sentence.  Here is how the opinion starts:
Defendant-appellant Jason E. Tutty pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).  He was sentenced by the United States District Court for the Western District of New York (Siragusa, J.) to 168 months' imprisonment.  On appeal, Tutty challenges the substantive reasonableness of his sentence. Upon review of the record, we conclude that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants.  Moreover, as we recently recognized in United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the child pornography Guidelines present important policy considerations, and unless they are "carefully applied," they "can easily generate unreasonable results." Id. at 98.  We vacate the judgment and remand to the district court for resentencing to correct the procedural error and to consider the policy concerns addressed in Dorvee.

July 16, 2010 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Thursday, July 15, 2010

Interesting research on sex offender registration and home sales

I just saw via SSRN this intriguing criminology paper titled "Estimating the Effect of Crime Risk on Property Values and Time on Market: Evidence from Megan’s Law in Virginia."  Here is the abstract:

This paper explores the effect that living near a sex offender has on the marketability of one’s home. Specifically, we estimate the impact on a home’s sales price and the length of time it takes for the home to sell.  Since the 1994 passage of Sexual Offender Act (known as Megan’s Law), persons convicted of sex crimes have been required to notify local law enforcement about their current domicile and any change of address.  Since then, sex offenders’ residencies have become publicly available information allowing anyone to lookup whether a sex offender resides nearby.  Using cross-sectional data from a central Virginia multiple listing service we find that sexual offenders have robust and economically large effects on nearby real estate.  Our results indicate that the presence of a nearby registered sex offender reduces home values by approximately 9%.  Moreover, these same homes take as much as 10% longer to sell than homes not located near registered sex offenders.  These results prove robust over numerous specifications and modeling techniques commonly found in the literature.

In light of this research, I fear it may be only a matter of time before someone with a political agenda tries to start blaming the burst of the housing bubble on sex offenders.

July 15, 2010 in Sex Offender Sentencing | Permalink | Comments (30) | TrackBack

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