Tuesday, April 27, 2010

Eleventh Circuit rejects various constitutional challenges to federal child porn convictions

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

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

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

Triple-digit sentence for child molester

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

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

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

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

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

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

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

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

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

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

Thursday, April 22, 2010

Some notable new developments in the Polanski prosecution

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

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

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

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

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

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

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

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

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

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

Wednesday, April 21, 2010

Interesting report on long state sentence for child porn offense

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 16, 2010

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

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

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

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

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

Thursday, April 15, 2010

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

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

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

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

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

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

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

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

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

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

Tuesday, April 13, 2010

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

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

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

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

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

Monday, April 12, 2010

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

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

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

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

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

Saturday, April 10, 2010

Maryland legislature moving forward on branding sex offender drivers' licenses

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

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

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

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

Friday, April 09, 2010

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

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

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

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

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

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

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

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

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

Thursday, April 08, 2010

Mass high court considering GPS tracking rules for sex offenders

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

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

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

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

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

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

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

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

Tuesday, April 06, 2010

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, April 03, 2010

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

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

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

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

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

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

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

Friday, April 02, 2010

Should sexting lead to sex offender registration?

The question in the title of this post is inspired by this long ABC News piece from a segment on Nightline, which is headlined "'Sexting': Should Child Pornography Laws Apply?; Legal Debate Springs Up After Man Put on Sex Offender List for Forwarding Risque Images." Here is a snippet:

NYU law professor Amy Adler says "sexting" -- teens sending and receiving pictures of themselves in sexually suggestive poses -- wasn't even on the Supreme Court's radar when justices made their pornography ruling 28 years ago. "Technically, it is child pornography," said Adler. "But I don't think it's the kind of case where child pornography law is the right legal framework to use to judge it."...

"One thing is I think we may be sending mixed messages to teens right now, because mainstream culture is showing teens in all sorts of sexual scenarios," said Adler. "Mainstream television with "Gossip Girl," showing teens hooking up, Miley Cyrus engaging in what many people thought was pole dancing at the "Teen Choice Awards." So on the one hand we have mainstream sexual depiction of teens, and on the other hand we're telling teens that if they do that themselves, they can go to jail."

Plenty of teens are finding that out. In Iowa, Jorge Canal had to register as a sex offender, like Alpert, for sending a nude picture of himself to a 15-year-old girl. He was 18 at the time. In separate cases in Pennsylvania and Ohio, kids who've sent or received and distributed sexy photos have agreed to curfew, community service, or no cell phone or Internet usage for a few months.

"Child pornography law was crafted to protect children from pedophiles, that's the idea behind it," said Adler. "But now what we have is the law applying to situations where the child himself or herself is making the pornography. So it's this odd situation where suddenly the pornographer and the victim are one in the same person. And in my view that's not the kind of scenario that child pornography law should cover."

Three states -- Nebraska, Utah and Vermont -- have already changed their laws. Fourteen other states ... are considering changes.

April 2, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Monday, March 29, 2010

"Disentangling Child Pornography from Child Sex Abuse"

The title of this post is the headline of this notable new paper now on SSRN from Carissa Byrne Hessick. Here is the abstract:

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography.  The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children.  In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected.

This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case.  The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.

March 29, 2010 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Saturday, March 27, 2010

Should former NY Governor Elliot Spitzer have to register as a sex offender?

The question in the title of this post is inspired by this local story from the heartland, which is headlined "Kansas ponders adding prostitutes' customers to sex offender list."   Here are the basics:

A bill passed by the Kansas House on Wednesday would land people convicted of hiring a prostitute on the state’s sex offender list for 10 years.

Many states, including Kansas, already require sex offender registration for those soliciting minors. Some states, such as California, give judges the discretion to require registration in solicitation cases.

But adding solicitation to the crimes requiring offender registration would be a significant expansion of the offender registry, critics said.

Given that former NY Gov Spitzer has never formally been convicted of hiring a prostitute, I suppose he need not yet worry about being subject to all the collateral consequences that face offenders who end up on a sex offender registry.  Nevertheless, using him as an example of a (typical?) John provides a good focal point for a debate about whether this type of criminal should be required to register as a sex offender.

March 27, 2010 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Wednesday, March 24, 2010

Another vet, claiming PTSD contributed to child porn downloading, gets big sentencing break

This remarkable local story out of Montana, which is headlined "Man blames PTSD for child pornography downloads," reports on another notable sentence break given to a notable child porn offense.  Here are the details, which spotlight many of the hottest issues in current federal sentencing debates:

An Iraq war veteran in Helena, who claimed that post-traumatic stress disorder contributed to his viewing child pornography, was sentenced Tuesday to two years in federal prison, to be followed by 10 years of supervised probation.

Keith Madsen said it was during his deployment in Iraq in 2004 that he began looking at pornography, and when he returned home with an injured arm, depressed and suffering from anxiety attacks, that he escalated his viewing from adult photos to those of children. He would download the images from his work computer at Fort Harrison — where he was a member of the Army National Guard Reserves — onto his iPod for viewing at home.

It was an unusual case in a couple of aspects, including the defense, the plea agreement and the sentencing. The U.S. Attorney’s Office had allowed Madsen, 27, to plead guilty to possession of child pornography, and dropped the more serious charge of receipt of child pornography, which carries a mandatory minimum sentence of five years in prison.

Assistant U.S. Attorney Marcia Hurd said that was done in part because of Madsen’s mental health diagnoses, which include not just PTSD but also long-term anxiety and obsessive-compulsive disorders, and depression. “He’s been given a significant break. We have a policy at the Department of Justice (that in a plea agreement) they must plead to the most significant charge, and I made a special case to give him leniency,” Hurd said.

But she was quick to add that some type of jail term was necessary, not just because by law Madsen could only be on probation for five years or less, but also because of some of the horrific images he downloaded. She said 119 child pornography images were found on his iPod. “These are not just pictures. He wasn’t just surfing the Internet and looking at something that’s not real,” Hurd said. “We are talking about pictures, not of naked teen girls, but pictures of 3-, 4- and 5-year-olds raped and sodomized by adult males and little boys sexually abused by adult females. He kept looking at them and put them on his iPod, and didn’t delete them until he was caught with them.”

Hurd added that Iraq war veterans who had worked on the case were upset that part of Madsen’s defense included PTSD. “They took great offense at the suggestion that service to their country or even PTSD was responsible,” Hurd said. “PTSD is not responsible or an excuse for someone to be involved in child pornography.”

But Fatima Amelkin, a licensed clinical social worker who has treated Madsen since last June, argued that in her opinion, he wasn’t a sexual offender even though an analysis by a federal therapist said he was. She said he has a chemical imbalance that contributed toward his mental health issues, but that he was being successfully treated for those and wasn’t a danger to his family or the community.

“The Veterans Administration didn’t provide him with the appropriate services as he deserved,” Amelkin said, noting that he wasn’t diagnosed with PTSD until five years after his return from Iraq, and that the diagnosis didn’t come from the military, but from her as a private practitioner. “… I don’t see Keith as a classic, or what you would expect a sex offender to be, so I don’t consider him to be a sex offender.”

Friends and family members testified on Madsen’s behalf, saying that his tour in Iraq changed the outgoing, friendly Madsen into someone reserved and quiet, attributed in part to his PTSD....

In letters and testimony, they added that Madsen is a decent man and a hard worker who deserves a second chance. Madsen, who was in tears at times as he addressed the court, professed deep-felt remorse and apologized for the impacts his actions had on those around him. He also noted that he can’t go hunting anymore, will have to register as a sex offender and hasn’t been allowed to pick up his 2-year-old son from day care or even spend time alone with him. “There isn’t one day that passes that I don’t regret what I did,” Madsen said.

He came to the attention of special agents after a routine check of computers at the Veteran’s Administration offices at Fort Harrison on May 14 last year turned up an address of a person accessing child pornography sites on the Internet, Hurd said. It was traced to Madsen’s computer, so as a ruse, Madsen was told on June 2 that the computer had a virus and needed to be replaced. The following day, he told his supervisor that he had been visiting porn sites, then minimizing the pictures while they were downloaded onto his iPod to be viewed at home.

U.S. District Court Senior Judge Charles Lovell said while PTSD is troublesome and that incarceration could possibly harm Madsen, he worried that Madsen wouldn’t get the help he needs in the community, especially due to the five-year probation limitation. “The court has to consider not only the welfare of the defendant, but also the danger to the public and the best manner in rehabilitating the defendant,” Lovell said, adding that the two-year sentence is a significant downward departure from the recommended guidelines of 57 to 71 months for Madsen. “It is perhaps the most lenient sentence this court has imposed in a case of this kind, which is a credit to your background and character.”

This reporting is especially valuable because it spotlights the impact and import of prosecutorial discretion as much as judicial discretion.  The federal prosecutor could (and should?) have demanded a plea to a charge that carried a 5-year mandatory minimum term, but she decided this was a "special case."  But, problematically, one aspect of what makes this case "special" is the fact that the defendant used VA computers while at work to download kiddie porn. 

Of course, as the reporting also shows, this defendant is to suffer some (not especially unique) collateral consequences in addition to his "lenient" prison term in the form of the (scarlet) sex offender label,  permanent loss of his Second Amendment rights, and perhaps permanent diminishment of his parental rights.  I suspect that these collateral consequences will impact and diminish the defendants qualify of life for decades in ways that the exact number of years he serves in prison will not.  And, arguably, the failure of our society to truly take care of our servicemen placed a role in this human tragedy.

March 24, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Monday, March 22, 2010

"Argentina province OKs chemical castration for rapists"

The title of this post is the headline of this recent CNN piece.  Here are the details (with emphasis added by me on one key aspect of this story):

Officials in Argentina's Mendoza province have authorized chemical castration for rapists after a significant increase in sexual assaults last year. Mendoza authorities convened a scientific legal committee and authorized the voluntary chemical castration by decree.

"By using medication that lowers the person's sexual desire and with psychological treatment, the person can be reintroduced into society without being a threat," Mendoza Governor Celso Jaque said. Eleven convicted rapists in the province have agreed to the treatment in return for reduced sentences.

Several members of the legal committee said the treatment must be voluntary or it would violate international law and Argentina's constitution....

The term "chemical castration" is a misnomer because the practice involves medication, not surgical intervention. Its effectiveness also stops when treatment is discontinued.

The practice in Mendoza follows measures adopted in several European countries and eight U.S. states: California, Florida, Georgia, Montana, Oregon, Wisconsin, Louisiana and Iowa. Depending on the success of the program in Mendoza, the rest of Argentina could follow suit, officials said.

Though I suspect there could be considerable support for broader use of chemical castration for sex offenders in the United States, I wonder if folks would support shorter prison terms in conjunction with this use of a punishment alternative.  Similarly, I fear that folks who complain about some prison sentences being too long would also complain about chemical castration being a means to bring down prison terms for certain sex offenders.

Some older and newer related posts on chemical castration:

March 22, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Saturday, March 20, 2010

"Rethinking Sex Offender Laws for Teenage Texting"

The title of this post is the headline of this new New York Times article.  Here is an excerpt:

In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer — known as “sexting” — have risked felony child pornography charges and being listed on a sex offender registry for decades to come.

But there is growing consensus among lawyers and legislators that the child pornography laws are too blunt an instrument to deal with an adolescent cyberculture in which all kinds of sexual pictures circulate on sites like MySpace and Facebook.

Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.

And on Wednesday, the first federal appellate opinion in a sexting case recognized that a prosecutor had gone too far in trying to enforce adult moral standards. The opinion upheld a block on a district attorney who threatened to bring child pornography charges against girls whose pictures showing themselves scantily dressed appeared on classmates’ cellphones.

“There’s a lot of confusion about how to regulate cellphones and sex and 16-year-olds,” said Amy Adler, a law professor at New York University. “We’re at this cultural shift, not only because of the technology, but because of what’s happening in terms of the representation of teen sexuality as you can see on ‘Gossip Girl.’”

March 20, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack