Tuesday, September 19, 2006

Consequences of California's new proposed sex offender law

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

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

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  In Iowa, prosecutors who once backed such a law said the residency limit had backfired, and they now want it repealed.

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

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

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

Monday, September 18, 2006

Interesting sex offender ruling from the Sixth Circuit

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

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

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

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

Monday, September 11, 2006

Another twist on (and twisted) sex offender restriction

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

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

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

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

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

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

Saturday, September 09, 2006

Compilation of sex offender residency/movement restrictions?

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

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

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

Monday, August 07, 2006

Considering sex offender options

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

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

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

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

Friday, August 04, 2006

Another interesting Big Love sentencing

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

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

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

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

Wednesday, July 26, 2006

Sex offender bills becoming law

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

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

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

Sunday, July 23, 2006

Senate passes major sex offender bill

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

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

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

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

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

Thursday, July 06, 2006

Considering castration for certain sex offenders

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

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

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

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

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

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

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

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

Monday, July 03, 2006

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

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

Some recent related posts:

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

Saturday, July 01, 2006

Missouri Supreme Court addresses sex offender registry

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

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

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

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

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

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

Monday, June 26, 2006

TRO issued concerning Georgia sex offender residency restriction

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

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

Friday, June 09, 2006

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

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

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

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

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

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

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

Thursday, June 01, 2006

New litigation over sex offender restriction

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

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

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

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

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

Some related posts:

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

Thursday, May 18, 2006

Intriguing sex offender collateral consequence

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

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

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

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

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

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

Saturday, May 13, 2006

A case-study in the potency of federal prosecution

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

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

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

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

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

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

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

Thursday, May 11, 2006

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

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

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

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

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

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

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

Sunday, April 23, 2006

The links between sentencing and plea/trial rates

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

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

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

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

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

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

Monday, April 10, 2006

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

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

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

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

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

Wednesday, April 05, 2006

A capital experiment spreading in the state laboratories

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

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

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

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

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

Recent related posts:

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

Tuesday, April 04, 2006

South Carolina Gov supports death penalty for repeat child rape

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

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

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

Recent related posts:

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

Monday, April 03, 2006

House Booker hearing follow-up

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

Download felman_supplemental_congressional_testimony.pdf

Some related prior posts:

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

Wednesday, March 29, 2006

South Carolina bill proposes death for repeat child molesters

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

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

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

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

Thursday, March 23, 2006

Interesting paper on sex offenders

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

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

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

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

Friday, March 17, 2006

Lots of interesting sentencing stories

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

Death penalty stories:

Sex offender sentencing stories:

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

Tuesday, February 14, 2006

Seventh Circuit rejects Eighth Amendment challenge to child porn mandatory minimum

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

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

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

Saturday, February 11, 2006

A registry for meth offenders?

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

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

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

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

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

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

Thursday, February 09, 2006

A potent and important prosecutorial statement against sex offender residency restrictions

I just received an extraordinary document released recently by the Iowa County Attorneys Association concerning sex offender residency restrictions in Iowa.  The ICAA, as detailed here, is an organization of county prosecutors seeking "to promote the uniform and efficient administration of the criminal justice system."  As explained in its five-page statement (which can be downloaded below), the ICAA believes that the Iowa's broad sex offender residency restriction "does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measure."

The ICAA's potent statement (which everyone should read in full) explains in great detail why Iowa's broad sex offender residency restriction is ineffectual and harmful to public safety.  Of course, persons impacted by residency restrictions have long argued their unfairness and some researchers have highlighted concerns about their efficacy.  But the ICAA statement provides a thoughtful explanation from prosecutors as to why these laws are a bad idea and make our society less safe.

A Google news search reveals that the ICAA statement received some press attention a few weeks ago (see here and here), but not nearly as much as I think the statement merits.  As detailed in this story from Iowa and another from Ohio, the ICAA statement can (and certainly should) significantly impact policy debates over the adoption of sex offender residency restrictions, which are raging in legislatures and local communities nationwide.  Moreover, I think the ICAA statement could (and perhaps should) significantly impact constitutional challenges to residency restrictions.  The statement suggests to me that overly broad residency restrictions ought not even survive rational basis review when subject to serious constitutional scrutiny.

Download iowa_prosecutors_statement_on_sex_offenders.pdf

Related posts on the constitutionality of, and policy deabtes over, sex offender residency restrictions:

UPDATE:  Dan Filler over at Concurring Opinions has this thoughtful amplification of points raised above.  I must especially concur with this statement from Dan: "It is heartening to see rational policy debate creep into what has otherwise been the land of moral panic."

February 9, 2006 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, February 08, 2006

Florida's struggle with sex offenders

The Miami Herald last week ran this four-part investigative series, entitled "Predators Among Us," about the badly flawed administration of Florida's Jimmy Ryce Act, which is aimed at confining and treating the state's most dangerous sexual predators.  This Herald editorial from Sunday summarized some of the paper's findings and called upon the Florida legislature to "revisit the Jimmy Ryce Act during its upcoming session and appropriate enough funding to make the act the safety net it is supposed to be."  And, showing the power of effective investigative reporting, now the newpaper reports that "some of Florida's most powerful lawmakers are set to investigate why the law is failing to achieve its mission."

February 8, 2006 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Thursday, January 26, 2006

Vermont judge increase notorious sex offender sentence

As detailed in news reports here and here and here, a "Vermont judge facing intense criticism for the 60-day jail sentenced he gave an admitted child molester changed his mind Thursday and increased the sentence to a minimum of three years." According to the AP account, "Judge Edward Cashman said he would have given the 3-year to 10-year sentence to Mark Hulett at the original sentencing, but at that point Hulett was not eligible for in-prison sex offender treatment.  He now is."

Over at TalkLeft, T Chris laments here that "Judge Edward Cashman caved to public pressure," although I am inclined to accept the Judge's new statements at face value.  Moreover, as I highlighted in prior posts about this case (linked below), what concerns me more is the broader political dynamics in which just one single seemingly too lenient sentence prompts an immediate political firestorm, but decades of seemingly too harsh sentences (e.g., long crack sentences for mules in the federal system) barely create a political ripple.

Related posts:

January 26, 2006 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, January 25, 2006

Sex crimes and congressional power

Though not a sentencing case, folks who follow the regulation of sex crimes or the reach of congressional authority in the criminal justice area will want to check out today's split decision by a Ninth Circuit panel in US v. Clark, No. 04-30249 (9th Cir. Jan. 25, 2006) (available here).  The majority holds:

Where, as in this appeal, the defendant travels in foreign commerce to a foreign country and offers to pay a child to engage in sex acts, his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under the Foreign Commerce Clause.

The dissent complains:

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.

UPDATE: Howard Bashman at How Appealing here provides more coverage and background on Clark.

January 25, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Monday, January 23, 2006

Of sentencing interest in the latest Harvard Law Review

The January issue of the Harvard Law Review is now on-line here, and there are two items that should be of particular interest for sentencing folks:

January 23, 2006 in Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, January 15, 2006

Fascinating articles about Florida probation system

The St. Petersburg Times on Sunday ran an interesting set of article about the administration and reforms of the state's probation system.  This lead article, entitled "Judgment calls," has this introduction, which highlights some of the article's themes:

Judges, prosecutors, probation officers and public defenders are faced with decisions that determine whether, and when probationers will have their freedom. The probationers, in turn, face daily choices that can determine their fates. In recent years, public officials have reacted to some especially shocking murders and sex crimes by adopting tough laws and regulations that limit the discretion of those on the front lines of the criminal justice system. In some cases, the get-tough policies have had their intended effect. In others, they have produced unintended consequences that have made the system less fair and society less safe.

The lead article is a very interesting read, and provides a lot of insight into the operation and importance of discretion on the back-end of sentencing systems.  Also terrific are this companion article, "On the job with probation officers Rebecca Wolf and Joe Sabella," which documents the day-to-day work of probation officers in Florida, and this overview of the laws impacting sex offenders in Florida.  (Hat tip to Howard Bashman for a link.)

January 15, 2006 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Saturday, January 14, 2006

Continued controversy over Vermont sentencing

Thanks to CrimProf, I see from this AP article that the controversy over one seemingly too lenient sentence in Vermont is enduring.  As detailed in the article, Judge Edward Cashman "sentenced a child molester to just 60 days of jail time -- a sentence he said was designed to ensure the man got prompt sex-offender treatment but critics say was too soft."   Now "several Vermont Republican lawmakers have demanded he resign or be impeached."

And, just today, the plot has thickened: this AP article now reports that "Former [Vermont] Chief Justice Jeffrey Amestoy has praised Judge Edward Cashman as a competent, caring and conservative trial judge."  And this story reports that a "key Republican legislator said Friday much of the furor that has surrounded a judge's sentencing of a repeated child offender could have been avoided if the media had done a better job reporting what the judge had done."  And this story now details some ways that Judge Cashman's sentencing has been misreported and misunderstood.

Related posts:

January 14, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Friday, January 06, 2006

The one-way ratchet of sentencing reform

Yesterday, in this post astutely titled "The kind of case that can prompt needed reforms," I relayed the story of a disconcerting state sentencing in a child sexual abuse case in Vermont.  In the case, the judge apparently felt that, to ensure the defendant received needed treatment, he could only impose a sentence of 60 days imprisonment for what seems like a crime meriting a much longer sentence.  And, at sentencing, the judge apparently disavowed the value of retribution and punishment in sentencing. 

Because the facts are extreme, and the judge's comments provocative, I am not suprised to see this AP story indicating that the case has already "prompted a cry at the Statehouse for tougher sentences and more effective treatment."  Here are more details about the quick political firestorm that one headline-grabbing case can create:

Republicans held a news conference Friday to introduce a bill that would require judges to impose a minimum sentence of 25 years in prison for aggravated sexual assault, sexual assault and second and subsequent offenses for lewd and lascivious conduct with a child younger than 12. Democrats responded by saying such a proposal already was part of their more comprehensive plans for getting tough on crime, a package that's the subject of hearings this week and next in the House.

Additional local coverage can be found news reports here and here, and a local editorial is here.

A lot might be said about this case and the quick reaction it has generated.  Notably, in this post entitled "Why People Are Skeptical of Judicial Discretion in Sentencing," Eugene Volokh thoughtfully explains why cases of this sort lend support for proponents of sentencing guidelines.  But, as I noted in this comment, it is also worth reflecting on the one-way ratchet sentencing reform dynamic this case reveals: just one single seemingly too lenient sentence has prompted an immediate legislative response, but often decades of seemingly too harsh sentences (e.g., all the long crack sentences for mules in the federal system) will barely create a political ripple.

All the comments to Volokh's post make for interesting reading, although I am always amazed to see a purportedly libertarian/conservative crowd show no real concerns about the problems of over-incarceration.  By my lights (and also, I think, Justice Scalia's as evidenced by his decision in Blakely), one of the greatest threats to liberty and freedom is the government having broad powers to lock people in small cages for very long periods of time.  I am often disappointed that those who claim to champion liberty and small government are not leading campaigns against excessive punishments.  Perhaps I should do a post entitled, "Why people are skeptical of libertarian/conservative concerns about liberty/freedom/small government."

One of my favorite comments on the Volokh post comes from Eric Muller of Is That Legal?: "I find this post to be a bit like one that links to an anecdote about an airplane crash and titles itself 'Why People Are Afraid To Fly.'  The sentence in this case is an outrage, but my experience tells me it is also an extraordinary aberration — the sort of aberration that is more appropriately correctable by the nuanced remedy of appellate reversal than by the broad, cumbersome, and potentially dehumanizing remedy of across-the-board sentencing regulations."

January 6, 2006 in Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Thursday, December 22, 2005

Is a picture worth 1000 more days in federal prison?

This interesting article highlights the perverted logic of the federal sentencing guidelines by detailing that, under the guidelines, a pervert who looks at pictures of children having sex can face a lot more prison time than a pervert who has sex with children:

A Daphne man pleaded guilty in Mobile's federal court Wednesday to driving to Florida to have sex with someone he thought was a 15-year-old girl.  Another Daphne man pleaded guilty to possessing and receiving child pornography in an unrelated case.  When both are sentenced in March, the child pornography defendant faces significantly more prison time — perhaps six times as much — under advisory sentencing guidelines.

"It's one of the strange things about the child pornography guidelines," said Assistant Federal Defender Lyn Hillman, who represents Lonnie Ray Hodnett.  "I've had defendants on child porn charges (for whom) the guidelines would have ended up being lower if they had actually molested a child."...

UPDATE:  In the comments and elsewhere, a number of folks have sensibly highlighted that the article referenced above is comparing apples and oranges in terms of the severity of the two offenses discussed.  And, to avoid any misleading implications, I should point out that the federal guidelines in most cases will recommend longer sentences for offenders who have sex with children than for those who look at pictures of children having sex.  Nevertheless, as the quote by the federal defender suggests, there are some instances in which looking at the wrong kind of pictures can get you as much or more federal time than engaging in the wrong kind of sex.

Also, for anyone interested in more perspectives on these important topics, consider this article about a federal sentencing for an on-line sexual solicitation and this article about a state sentencing of a coach having sex with an underage team member.

December 22, 2005 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Monday, December 05, 2005

Tough sentences for downloading the wrong porn

This morning, the Louisville Courier-Journal has this interesting article, "Cracking down on child porn," which details the lengthy sentences defendants are now to receive under the federal guidelines for downloading illegal pornography.  The story focuses on a young, married, college graduate facing over 17 years imprisonment because of his huge collection of child pornography on his home computer.  The article also includes this interesting discussion of federal sentencing in these cases:

Under 2003 legislation known as the PROTECT Act, Congress increased federal penalties for child-pornography offenders, including a mandatory five-year sentence for receiving or distributing it through the Internet.  The U.S. Sentencing Commission, which advises federal courts, has increased advisory prison terms twice since the legislation passed.  Sentences increase dramatically based on the number and types of images involved, and if children younger than 12 are depicted.

Judges almost always follow the guidelines, according to a commission report requested by Chief U.S. District Judge John G. Heyburn....  Of 25 federal child-pornography offenders affected by the 2004 guidelines and sentenced this year through September, judges deviated from prosecutors' recommendations and imposed sentences shorter than the guideline in only three cases.

December 5, 2005 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Monday, November 28, 2005

The inevitability of Booker disparity anecdotes

This article in Monday's Newark Star-Ledger, which is entitled "Disparities are emerging in criminal sentencings," reveals yet again how easy it is to spotlight a few federal cases in order to suggest that sentencing disparities are "emerging" in the wake of Booker.  The article, in addition to providing background on the impact of Booker, details seemingly disparate sentencing outcomes in seemingly similar child pornography cases from New Jersey.

The Star-Ledger article is interesting and generally well done, although it fails to note that in roughly 2/3 of all cases in which judges impose sentences below the guidelines, these sentence reductions are at the behest of prosecutors.  That failure in turn highlights broader concerns I have about these sorts of post-Booker news stories: these articles generally fail to explore how prosecutors can be the source of sentencing disparities and how factors like divergent fast-track programs or cooperation policies (or even the basic crack-powder cocaine differential) might have produced pre-Booker disparities that were even more disconcerting than any post-Booker disparities resulting from divergent judicial decisions.

I fear it is inevitable that the post-Booker world will be flyspecked and that selected anecdotes will be the basis for (overly broad) claims that greater sentencing discretion is leading to greater disparity after Booker.  (Recall, of course, that this is exactly what AG Alberto Gonzales did when calling for a legislative "Booker fix" in his speech this past summer (basics here, commentary here and here and here).) 

Ultimately, the real story of Booker's impact on sentencing disparities is a lot more nuanced than the Star-Ledger article suggests.  And I hope to explore these realities in much greater depth in forthcoming posts in my "Dead Booker walking?" series.

November 28, 2005 in Booker and Fanfan Commentary, Booker in district courts, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Friday, October 14, 2005

Seventh Circuit on departures and reasonableness review

The Seventh Circuit today in US v. Johnson, No. 04-1463 (7th Cir. Oct. 14, 2005) (accessible here), affirmed a sentence in a child pornography case in which, pre-Blakely, the district judge departed upward from a sentencing range of 70 to 87 months' imprisonment to a final sentence of 236 months' imprisonment.  The case involved images which the sentencing judge "characterized as the most shocking he had seen in sixteen years on the bench," and the Seventh Circuit's opinion in Johnson provides a thorough and thoughtful explanation for its conclusion that this above-guideline sentence is reasonable.

Considering its other decisions discussing reasonableness over the last few weeks (discussed here and here and here), the Seventh Circuit merits praise for working hard to try to give reasonableness review some real content.  Despite these efforts, however, I fear that quixotic character of appellate review for reasonableness, combined with a strong institutional disposition in the circuits to affirm most sentences, likely means that reasonableness review will always be an elusive concept in the post-Booker world.  (Ever the optimist, though, I have some hope that whenever we get some data from the USSC on appellate issues, we might find that reasonableness review has at least a few predictable features.)

One interesting facet of this latest Johnson decision is how the Seventh Circuit talks about departures in the post-Booker world.  As noted way back in this February post, the USSC and others have urged sentencing judges to consider and address departures and variances distinctly.  But, confirming my instinct that these concepts might get collapsed post-Booker, consider this passage from Johnson:

Johnson's framing of the issue as one about "departures" has been rendered obsolete by our recent decisions applying Booker.  It is now clear that after Booker what is at stake is the reasonableness of the sentence, not the correctness of the "departures" as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory.  United States v. Castro-Juarez, No. 05-1195, 2005 WL 2417065, at *3 (7th Cir. Oct. 3, 2005) ("the question . . . is ultimately the reasonableness of the sentence the district court imposed, not the court's application of a guideline authorizing an upward departure").  Now, instead of employing the pre-Booker terminology of departures, we have moved toward characterizing sentences as either fitting within the advisory guidelines range or not.

October 14, 2005 in Booker in the Circuits, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, September 14, 2005

Significant Massachusetts ruling on sex offender sentencing

Today in Commonwealth v. Pagan, No. SJC-09332, 2005 WL 2210333 (Mass. Sept. 14, 2005) (accessible here, perhaps), the Supreme Judicial Court of Massachusetts addressed various constitutional issues (and found some constitutional problems) with a relatively new state statute for sentencing sex offenders.  Here is the opinion's introduction:

The defendant appealed from the imposition of a term of community parole supervision for life (CPSL).... Specifically, he claims that (1) sentencing him as a repeat offender without indicting him as such is a violation of art. 12 of the Massachusetts Declaration of Rights; (2) G.L. c. 275, § 18, is unconstitutionally vague; and (3) G.L. c. 275, § 18, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).

For the reasons discussed below, we hold that a term of CPSL may be imposed lawfully on a repeat offender so long as the indictment or complaint alleges that he is a repeat offender, as required by art. 12.  We further hold that G.L. c. 275, § 18, is unconstitutionally vague as to first time sex offenders because it provides uncertain and conflicting standards that fail to inform defendants, prosecutors, and judges what is required before CPSL may be imposed.  In particular the statute identifies a standard of proof (clear and convincing evidence) but it contains contradictory language as to whether it is the Commonwealth or the defendant who must meet that standard, concurrently providing that the imposition of CPSL must be supported "by clear and convincing evidence" and that a determination not to impose CPSL must also be "supported by clear and convincing evidence." The statute also makes the imposition of CPSL dependent on a fact-finding process, but fails to identify what facts must be found, providing only that the judge must determine whether a defendant shall be committed to CPSL. To the extent that some of the language in the statute suggests that a judge has broad discretion to impose CPSL by applying traditional sentencing factors, it subjects that discretion to a fact-finding process that is inconsistent with that discretion. Moreover, insofar as § 18 is intended to make CPSL dependent on judicial fact finding (as opposed to the exercise of a judge's traditional sentencing discretion), it appears to violate the principle enunciated by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), cases that changed the constitutional requirements for enhanced penalty sentencing after CPSL was enacted.

September 14, 2005 in Blakely in the States, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Thursday, August 25, 2005

USA Today overview of sex offender realities

USA Today has this long article discussing important sex offender realities in the midst of the national on-going sex offender panic.  Here are some highlights:

[H]igh-profile cases ... don't tell the whole story of sex offenders in America. They don't reflect the surprisingly good news: Sex crimes against children have dropped dramatically in the last decade. An online national sex-offender registry was launched in July. And recent research shows doctors can better predict which offenders may strike again....

Dramatic drop in cases. Government figures show the rate of sexual assaults against adolescents ages 12 to 17 plunged 79% from 1993 through 2003, and the number of substantiated sex-abuse cases involving kids of all ages fell 39% in the same time period. [One expert], who has analyzed the data, sees multiple reasons for the decline: Greater incarceration of offenders, more therapy and use of psychiatric drugs, economic improvement in the 1990s and heightened public concern. ...

Treatment helps. Group therapy dropped the recidivism rate from 17% to 10%, according to a 2002 study that [anther expert] co-wrote.  He studied 9,454 sex offenders in 43 states.

UPDATE:  More commentary on the story comes from the ACS Blog and TalkLeft.

August 25, 2005 in Sex Offender Sentencing | Permalink | Comments (19) | TrackBack

Sunday, August 21, 2005

Sunday stories of sex and death

Pardon the sensationalized headline for this post, but today the Sunday morning papers include a number of sensational articles that follow-up developing stories about sex offender sentencing proposals and about the process for excluding mentally retarded defendants from the death penalty.

On the topic of sex offender sentencing (concerning which this post from earlier this week generated a robust blogosphere debate), there are articles today from the Washington Post and from the Boston Globe discussing new proposed sex offender legislation in Maryland and New Hampshire.  Earlier this week, similar proposals were coming from California Governor Arnold Schwarzenegger, which prompted this harsh editorial from the Sacramento Bee.

On the topic of death sentencing procedures, this article from Virginia canvasses the issues likely to be raised on appeal by death row defendant Daryl Atkins after a jury ruled he was not mentally retarded and thus subject to execution (details here).  I expect that a leading cite in briefs filed by Atkins' lawyers will be the recent New Jersey Jiminez decision, discussed here, which concluded that prosecutors seeking the death penalty in New Jersey must prove a defendant is not mentally retarded beyond a resonable doubt.

August 21, 2005 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Friday, August 19, 2005

Debating sex offender sentencing

This post earlier this week on new sex offender proposals touched off an interesting blogosphere debate with Gideon at a Public Defender and with Tom at Confutatis Maledictis.  And now Ken at Crim Law has joined to discussion with this thoughtful post.

I think all these posts, and many comments on each of the blogs, do a fine job developing a range of competing issues as the sex offender panic rages on in the media and in statehouses.  (For another example, see this story about Kentucky's Lieutenant Governor urging consideration of castration.)  Indeed, it is a testament to both the blogosphere and the modern politics of crime that we are seeing far more thoughtful and nuanced discussion and debate of these sex offender issues from bloggers than from politicians.

August 19, 2005 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, August 17, 2005

More politicians participating in sex offender panic

A few weeks ago, I noted here that the on-going social panic over sex offenders is finding expression in new "get-tough" sex offender legislation and proposals emerging at federal, state and local levels.  This week, California Governor Arnold Schwarzenegger is just the most high-profile politician jumping on this "tough-on-crime" bandwagon:

All of these articles, and many of the other recent stories of new sex offender laws and proposals archived here, reinforce my often-stated concerns about criminal justice policy being unduly driven by headline-making anecdotes of horrible individual cases (even in other states) rather than by refined data-driven policy analysis.  (In this astute post on the California bills, TalkLeft comments that "the surest way to tell a politician is in trouble is when all of a sudden he or she jumps on the 'get tough on criminals' bandwagon.")

Interestingly, some of the articles linked above note the potential high cost of proposals like lifetime GPS monitoring of sex offenders.  As has been true in other "tough-on-crime" cycles, economic realities will likely serve as the only brake on these sorts of politically-driven "get tough" sex offender initiatives.

UPDATE:  Thanks to this thoughtful post by Gideon, I see that my interest in refined data-driven policy analysis has subject me to some unkind words in this post from Tom at Confutatis Maledictis.  Tom suggests I need "a foray out of the ivory tower," but his post, much like a lot of the rhetoric coming from many politicians these days, falls prey to the same sort of anecdote-driven assumptions without addressing deeper realities. 

Tom claims that "it has been empirically demonstrated that [sex] offenders are the least amenable to rehabilitation and the most likely to re-offend," and he then cites to two recent high-profile cases to support this broad assertion.  But a comprehensive sentencing commission report on these issues from Tom's home state of Virginia spotlights a far more nuanced reality because not all sex offenders are created equal.  The data show that the reoffense and rehabilitation story for a small group of high-risk offenders is disconcerting, but for other offenders the reality is much more encouraging.  (This article, entitled "New hope for sex offender treatment," from the American Psychological Association discusses these issues effectively.)

Consider, for example, this recent Washington State Study, reporting that "sex offenders re-offend at lower rates than those convicted of other felonies.  After five years, 15% of sex offenders return to prison for new offenses compared to 43% of offenders convicted of property crimes."  Also consider this data from the Texas Department of Health State Services which reports not only lower sex offender recidivsm rates, but also that "research and clinical reports have begun to demonstrate that a number of treatment methods are effective in modifying some forms of sexual deviance."  The data in this area are subject to many assessments, but my chief fear is that politicians are motivated more by polling data than by reoffense and rehabilitation data when they develop the latest "tough-on-crime" campaign.

Tom suggest I want to "prevent the people from protecting themselves and their children," but that could not be farther from the truth.  Rather my goal is to push the public dialogue toward sound data-driven analysis so that we get effective policy reforms rather than hollow rhetoric and cost-ineffective proposals that only distract from doing the real, challenging work required for effective sentencing and corrections policy-making.  I think that "the hard working people who just want to ensure their kids' safety" deserve nothing less.

ANOTHER UPDATETom at Confutatis Maledictis has added a thoughtful addendum to his original post which articulates effectively the view that, because of the potential harms of sex offenses, he would rather risk significantly over-punishing some sex offenders than risk additional crimes.  I agree with a lot of the sentiments expressed in Tom's addendum, though I fear the tone and approach reflected in Tom's original post fosters an environment in which, as reported here by Gideon, private citizens feel emboldened to take matters into their own hands by "slaying and dismembering a convicted sex offender."

August 17, 2005 in Sex Offender Sentencing | Permalink | Comments (20) | TrackBack

Wednesday, August 03, 2005

Great blog debate over residency restrictions

A wonderful blogsphere debate has developed over the constitutionality of sex offender residency restrictions (which, regular readers know, was the subject of major recent rulings by the Eighth Circuit and the Iowa Supreme Court).  Lior Strahilevitz kicked off the debate with this post at PrawfsBlawg, which prompted this response from Will Baude at Crescat, which led to this reply from Lior.  Be sure to read the comments, too, since they enhance the debate greatly.

Since my constitutional expertise does not go much beyond the sentencing field, I am disinclined to weigh in on the merits of the debate.  But I am inclined to highlight how this exchange amplifies my recent points in this guest-post at PrawfsBlawg that blogs can help fill a scholarly gap created by the modern realities of traditional law reviews. 

August 3, 2005 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Friday, July 29, 2005

Iowa Supreme Court upholds broad sex offender residency restrictions

Today the Iowa Supreme Court in State v. Seering, No. 34 / 03-0776 (Iowa July 29, 2005) (available here) upheld the state's broad residency restriction on sex offenders.  Here is the introduction and conclusion from the opinion, which insubstance echoes the Eighth Circuit's similar ruling about the same law in Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (discussed here):

In this appeal, we consider the constitutionality of Iowa's statutory prohibition against convicted sex offenders living within two thousand feet of an elementary or secondary school or child care facility.  The appellee, a convicted sex offender, brought a successful constitutional challenge to the statute in the district court. The State appeals from the district court’s ruling.  For the reasons that follow, we reverse and remand this case for further proceedings consistent with this opinion....

We conclude Seering has suffered no deprivation of his federal or state constitutional rights related to substantive and procedural due process, ex post facto laws, self-incrimination, or cruel and unusual punishment.  We also observe that the United States Eighth Circuit Court of Appeals recently rejected similar challenges to section 692A.2A under the Constitution of the United States.  See Doe, 405 F.3d at 723. This opinion is consistent with our approach and supports the conclusion we reach today.

This is an interesting and important opinion that seems likely to just add fuel to the on-going sex-offender panic.  Indeed, just earlier this morning, this story from New Jersey noted that a local township lawyer cited to the Eighth Circuit's Doe v. Miller ruling to support his township's decision to extend its residency restriction "to prohibit convicted sex offenders from living near roller rinks, movie theaters and amusement parks."

July 29, 2005 in Sex Offender Sentencing | Permalink | Comments (74) | TrackBack

More sex offender laws and restrictions in the works

The on-going social panic over sex offenders finds expression these days in dozens of newspaper articles each day discussing new "get-tough" sex offender legislation and proposals emerging at federal, state and local levels.  Among the articles catching my eye this morning:

Every one of these articles provides still more evidence how the laws and restrictions being developed during the current social panic over sex offenders are driven far more by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis.

July 29, 2005 in Sex Offender Sentencing | Permalink | Comments (120) | TrackBack

Thursday, July 28, 2005

Intriguing reaction to sex offender panic

This letter, headlined "Drunken drivers vs. sex offenders" and appearing in the Sarasota Herald-Tribune, makes a number of interesting points in response to the sex offender panic which is producing "get-tough" sex offender legislation at the federal, state and local levels.  Here's the lead paragraph:

There are many more unmonitored, lethal, habitually drunken drivers in our midst than there are unmonitored, lethal sex offenders.  Drunken drivers maim and kill more children, adolescents and adults than do all of Florida's sex offenders.

July 28, 2005 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, July 27, 2005

Latest sex offender idea: five-year minimum federal sentence for failing to register

As detailed in this earlier post, a federal bill entitled the Children's Safety Act of 2005 (HR 3132; available here), a package of previously separate bills aimed at cracking down on sex offenders, was slated to receive consideration by the full House Judiciary Committee on Wednesday.  This press release from the Committee provides the details on the Committee's approval of the bill by a vote of 22-4 today, and this AP report indicates that highly debated "was a provision that calls for a minimum five-year prison sentence for convicted sex offenders who fail to register with authorities."  Here are some highlights from the AP article:

Democrats called that provision too harsh, noting it could apply to a person convicted of a misdemeanor sex offense. "Failing to register should not have a minimum sentence," said Rep. Jerrold Nadler, D-N.Y. "A judge can make that determination." Under the provision, Nadler said, a person could serve more time in prison for failing to report than for the actual crime committed. "That doesn't make any sense at all," he said.

But Rep. Mark Green, a Wisconsin Republican who is running for governor, said failing to register undermines a key weapon against sex offenders — knowledge of where they're residing. The bill includes Green legislation to add juvenile sex offenders to state registration lists.  "It is, in my view, a very serious offense," he said of failing to register.  And he defended taking the decision away from judges.  "We're here because unfortunately judges have failed us in some of these cases," Green said.

The committee defeated [an] amendment by Rep. Bobby Scott, D-Va., to eliminate the minimum sentences for failing to register, 17-16.... John Conyers of Michigan, the ranking Democrat on the committee [said]: "We need to move past the emotional side of this issue," [and he called the] new mandatory minimum sentences "over the top.... We need to invest in solutions of a preventive nature."

July 27, 2005 in Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Tuesday, July 26, 2005

Sex offenders bills moving forward

In Alabama, the national panic over sex offender recently found expression last week, as discussed here and here, in a proposal for a mandatory sentence of castration and amazingly heated rhetoric.  (A Public Defender has a thoughtful discussion of these developments in this recent post.) As detailed in this story, today the Alabama legislature passed a sex offender bill with many tough terms but without the mandatory castration provision:"We don't want to pass something that will be declared unconstitutional, although I personally think these people who do this to little kids should be shot on the spot," said Rep. Alvin Holmes, D-Montgomery.

At the federal level, as detailed in articles from the AP and local papers, a sex offender bill is also moving forward in the House of Representatives.  A bill entitled the Children's Safety Act of 2005 (HR 3132; available here), which is actually a package of separate bills aimed at cracking down on sex offenders, is slated for full committee mark up on Wednesday.  Here's a description of the bill from one of the press accounts:

[The Children's Safety Act of 2005] collects numerous previously proposed bills targeting sex offenders under a single proposal.  Among them is a bill introduced earlier this year and co-sponsored by Rep. Mark Kennedy, R-Minn., dubbed "Dru's Law" in honor of Sjodin, a 22-year-old Minnesota woman who was abducted, raped and murdered in Grand Forks, N.D. in November 2003. Dru's Law would create a national database of registered sex offenders that would be searchable via the Internet by the general public and would ease the transfer of sex offender records across state lines.

In addition to the Dru's Law provisions, the bill would broaden the legal definition of "sex offender" to include anyone guilty of a felony or misdemeanor sex offense, increase the level of monitoring sex offenders receive after their release, and increase mandatory minimum sentences for sex crimes against children.  "America's Most Wanted" host and longtime child safety advocate John Walsh, speaking at the press conference, called it "the most important piece of child protection legislation in the history of the United States."

July 26, 2005 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack