Saturday, May 23, 2015
You be the prosecutor: what sentence will you recommend for convicted "sex on beach" couple?
Regular readers may recall this post from earlier this month, titled "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," which covered the possibility of one member of an indecent couple in Florida facing a mandatory 15-year prison sentence for shoreline dirty dancing with his girlfriend. But this follow-up post reported that State Attorney Ed Brodsky indicated that "he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach." Now this news update on the notable case indicates that sentencing is likely to be scheduled in the coming weeks and includes this partial preview:
Jose Caballero, 40, and Elissa Alvarez, 20, were convicted May 4 on two counts each of lewd and lascivious behavior for having sex on Cortez Beach on July 20, 2014. The convictions carry a maximum sentence of 15 years in prison and require both to register as sex offenders....
The State Attorney's Office has said it will not seek the maximum penalty for either defendant, but is looking into jail time for both of them. [Assistant state attorney prosecutor Anthony] Dafonseca said they'd seek a harsher punishment against Caballero, who has served prison time for cocaine trafficking.
The defendants were represented by attorney Ronald Kurpiers, but Alvarez will be represented at sentencing by Greg Hagopian, according to Dafonseca. Hagopian said he didn't want to discuss the reason for Alvarez's switch. She had no criminal record before her conviction.
A few people filed letters on behalf of the defendants, saying the judge should take it easy on Alvarez and Caballero and not make them register as sex offenders. "You are likening these two individuals to deplorable people who have actually taken advantage of or violated children," read a letter signed by Femi Olukoya. "This state needs to grow up and that can start with you," read another letter.
The jury found the couple guilty after a 1 1/2 day trial and only 15 minutes deliberation. One of the witnesses took video of the two in July, showing Alvarez moving on Caballero in a sexual manner in broad daylight.
Unsuprisingly, prior posts about this case generated a lot of notable commentary, and now I am eager to focus discussion on how folks think the state prosecutors here ought to exercise their sentencing discretion. Specifically, I would really like folks to put themselves in the shoes of the Florida prosecutors and state, with some specificity, exactly what sentence they think should be recommended to the sentencing judge in this unusual criminal case.
Prior related post:
- Imprisonment for 15 years for sex on the beach?!?! Really?!?!
- Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions
Friday, May 22, 2015
"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"
The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:
For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.
I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.
Here is some of what she goes on to say about this very interesting topic:
While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established). There is a trend toward sexual contact with teenage males. Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.
In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.
Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped. Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty. Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.
Of course, I don’t condone this behavior in the least. I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.
Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men. Treatment providers aren’t given special instruction in dealing with women. The treatment programs are written for men, using statistics about male offenders and past treatment models of men. Imagine! Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.
At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders. This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work. But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.
A lack of evidence should never be the reason for poor rehabilitation. It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future. When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon. By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.
Research about recidivism rates is also based primarily on male populations and varies drastically. Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all. But since the law doesn’t differentiate among sex offenders, these studies are nearly useless. A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child. The lumping-together of sex offenses creates confusion even while it feeds public hysteria....
Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment. It does nothing to address the complex emotional choices that led people to their crimes. Rather, the justice system beats down already hurting women.
May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack
Monday, May 18, 2015
DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)
I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire. Thus, when reading the DC Circuit's recent opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest. Here is how the per curiam opinion gets started:
Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation. See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995). But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.
Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:
“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008). I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance. But the burden of providing a brief explanation is small and the advantages great. “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”). It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.
Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:
When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.
In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement. Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.
May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
Sunday, May 17, 2015
"Does Michigan's sex offender registry keep us safer?"
The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:
It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies. Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.
Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons. It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031. "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.
Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police. Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names. The registries are widely monitored by parents, potential employers and cautious neighbors.
To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online. But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional. For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.
Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....
Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors. No one was charged.
At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law. But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life. "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."
But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people. The supporters also dismiss the research, saying it's impossible to determine who might re-offend. They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.
"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."
Many parents say the registries makes them feel safer. Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know." Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."
Sex offender registry laws were first passed in the 1990s following a string of horrific child murders. The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.
Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives. In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....
Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective. And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law. For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.
Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes. A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....
Nationally, there are about 800,000 people registered as sex offenders across the 50 states. Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens. It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....
Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant. Some, though, think tougher laws are in order. And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.
Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."
A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."
J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees. He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....
While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.
May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack
Friday, May 15, 2015
Spectacular work on sex offender registration rules and other "collateral" stories at CCRC
Regular readers surely recall me highlighting all the great work still being done regularly over at the Collateral Consequences Resource Center. The newest post by Margy Love there, "50-state survey of relief from sex offender registration," demostrates why CCRC must be a regular read for all would-be criminal justice fans. Here is how it gets going:
We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law. This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,”discussed on this site on April 15. The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary. But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.
We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals.
It is risky to try to generalize about the results of our study, However, we found that registration laws seem to fall into three general categories:
- 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal;
- 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years;
- 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years.
And these other new posts from CCRC recently highlight the critical work being done at CCRC on topics beyond sex offender registration realities:
- Georgia high court extends Padilla to parole eligibility
- 27 Senators urge Obama to “ban the box” in federal hiring
- Leaked White House memos detail president’s pardon policy
- Collateral consequences and the transforming effect of the drug war
- Vermont becomes the 16th state to ban the box!
May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack
You be the judge: what sentence for Georgetown's video voyeur Rabbi?
This Washington Post article provides background on a notable sentencing in a DC local court today in which, as highlighted below, the prosecution and defense have radically different sentencing recommendations. Here are the details:
Sentencing for Barry Freundel, the once-influential Orthodox rabbi who pleaded guilty to secretly videotaping dozens of women as they prepared for a ritual bath, is scheduled for Friday in D.C. Superior Court. The hearing is expected to be an emotional one as many of the victims are expected to speak to Senior Judge Geoffrey Alprin on the impact of Freundel's crime on their lives.
Freundel, 64, was arrested in October on charges that he videotaped six women in the nude while he was at Kesher Israel synagogue in Georgetown. Prosecutors said a review of his computer equipment revealed that many more women had been recorded by Freundel as they prepared for the bath known as a mikvah — used as part of a purification ritual.
Freundel ultimately pleaded guilty to videotaping 52 women, and the punishment proposed by prosecutors would translate to four months for each victim. The longtime rabbi had recorded about 100 additional women, prosecutors have said, but those alleged crimes occurred outside the three-year statute of limitations. The videotaping occurred between 2009 and 2014....
On Thursday, the judge sent out a procedures memo in which he said alerted prosecutors, Freundel and his attorney and victims, as to how the hearing will be conducted. Each victim who wishes to speak will be allowed only five minutes. To ensure anonymity for the victims, each woman will be identified by an alphabetical or numerical identifier. Some victims are scheduled to fly in from Israel to speak.
Prosecutors have asked the judge to sentence Freundel to 17 years in prison. Freundel’s attorney, Jeffrey Harris, urged against prison and instead asked the judge to sentence Freundel to community service. Alprin can adopt either recommendation, or craft another punishment.
Freundel has not spoken publicly about the charges. He is also likely to speak and because he pleaded guilty, he waived his chance to appeal. In the memo his attorney wrote to the judge, Harris said Freundel “recognizes and regrets” his actions. “His conduct has brought shame upon Judaism, the synagogue he once served, his family, and himself,” Harris wrote.
Among the many interesting aspect of this sentencing is whether and how a judge ought to consider the impact of this Rabbi's crimes on those whom he served over many years as a religious leader. This prior Washington Post article, headlined "For those who revered him, D.C. rabbi’s sentencing for voyeurism will not bring closure," highlights their stories. It starts this way:
This week, a D.C. Superior Court judge is scheduled to hand down a penalty for Barry Freundel, a powerful Orthodox rabbi who for years secretly videotaped his female followers as they prepared to submerge in the mikvah, a ritual bath. But in the Orthodox world where Freundel was once a giant, the fallout of his crimes will continue unspooling.
Some of the hundreds who studied or worshiped with Freundel have stopped going to the mikvah, a ritual that is considered so important in Judaism that women are commanded to use it monthly before sharing any physical intimacy with their husbands. Others who converted with Freundel are terrified that their status as Jews will forever be in question in their law-focused communities. Some people have stopped going to synagogue. Others suffer nightmares in which they are spied upon — and feel complicit.
Wednesday, May 06, 2015
Imprisonment for 15 years for sex on the beach?!?! Really?!?!
I had heard earlier this week about the Florida couple getting into criminal trouble for having sex in public on a beach, but only this morning have I focused on the reality that, thanks to Florida's severe recidivist sentencing laws, it appears that one of the defendants may have to serve 15 years(!!) in state prison for this crime. This local story, headlined "Couple found guilty of having sex on Florida beach," explains:
A jury Monday found a couple guilty of having sex on Bradenton Beach after only 15 minutes of deliberation. The convictions carry a maximum prison sentence of 15 years.
Jose Caballero, 40, and Elissa Alvarez, 20, were charged with two counts each of lewd and lascivious behavior for having sex on a public beach on July 20, 2014. Video played in the courtroom during the 1- 1/2-day-long trial showed Alvarez moving on top of Caballero in a sexual manner in broad daylight. Witnesses testified that a 3-year-old girl saw them.
Both Caballero and Alvarez will now have to register as sex offenders.
A sentencing date was not announced, but Assistant State Attorney Anthony Dafonseca said they will pursue a harsher sentence for Caballero than Alvarez, since Alvarez has no prior record and Caballero has been to prison for almost eight years for a cocaine trafficking conviction.
The state will ask for jail time for Alvarez and prison time for Caballero. Dafonseca said due to Caballero being out of prison less than three years before committing another felony, he's looking at serving the maximum time of 15 years. "We gave them a reasonable offer, what we felt was reasonable, and they decided it wasn't something they wanted to accept responsibility for," Dafonseca said. "Despite the video, despite all the witnesses."
Ronald Kurpiers, defense attorney for the couple, said his clients were "devastated," by the verdict. Though Dafonseca hinted that they'd be speaking with the judge about whether or not 15 years was appropriate for Caballero, Kurpiers said the judge would have no discretion. "That's what he'll get," Kurpiers said.
Ed Brodsky, elected state attorney for the 16th judicial district, joined Defonseca in prosecuting the case. When asked why the case was an important one to the state attorney, Dafonseca said it was important that the community knew what wouldn't be tolerated on public beaches. "We're dealing with basically tourists, that came from Brandon and Riverview and West Virginia, and they're here on the beaches of Manatee County, our public beaches," Dafonseca said, referring to the witnesses. "So you want to make sure that this isn't something that just goes by the wayside. And that it is well known to the community, what will be tolerated and what won't be."
Family members who witnessed the act and a Bradenton Beach police officer, as well as Caballero, testified in the case. The defense argued that the two weren't actually having sex, but that Alvarez had been dancing on Caballero or "nudging" him to wake him up. "She wasn't dancing," Dafonseca said during closing arguments. "It's insulting your intelligence to say that she was dancing."
Kurpiers said since the witnesses had not seen genitals or penetration, and neither was visible in the video, either, that saying the two had sex was speculation. "You folks cannot speculate," Kurpiers told the jury. "And in order to say they had intercourse, you would have to speculate."
Brodsky said they weren't calling it the crime of the century, but it was still a violation of Florida law. "Did they try to cuddle, or do it discreetly? Did they go in the water, where people couldn't see?" Brodsky asked the jury. "Did Ms. Alvarez try to drape a towel over herself, or anything? They didn't care."
I do not know Florida sentencing law well enough to know if defendant Caballero is in fact going to have to be sentenced and actually going to have to serve a decade or more in state prison for his misguided dirty dancing on a public beach. This press report makes it sound as though perhaps there may be some means for the sentencing judge to impose a lesser sentencing term, and I think a constitutional challenge based on the Eighth Amendment might also be viable here if state law really does mandate such a severe term in this case.
In addition to wondering whether and how Florida sentencing law may provide the judge with some sentencing discretion in this setting, I especially wonder about the terms of the "reasonable offer" that prosecutors offers to resolve this case via a plea deal. Specifically, I wonder if the offer required either or both defendants to serve significant time incarcerated and required sex offender registration. Especially given all the housing restrictions on registered sex offenders in Florida, that component of any conviction may have led to the defendants being especially eager to try to fight the charges.
Sunday, May 03, 2015
“Catching American Sex Offenders Overseas: A proposal for a federal international mandated reporting law”
The title of this post is the title of this notable new law review article authored by Basyle Tchividjian, which I just came across. Here is an excerpt from the end of the piece's introduction:
In Asia alone, over 62,000 Americans visit each year for the purpose of sexually victimizing children.4 These numbers do not include other parts of the world, nor the United States citizens who reside overseas and sexually abuse children. This considerable problem requires a bold and practical response that has proven to be effective in the United States. It is time that federal law catch up to the states and mandate its citizens who are overseas to report Americans who are suspected of sexually abusing children in foreign countries.
Section II of this Article provides a brief foundational history of mandated reporting laws in the United States. Section III outlines the increased involvement of the federal government in promoting mandated reporting laws. Section IV summarizes the modern state of mandated reporting, and Section V analyzes the effectiveness of the current law. Section VI shifts the focus to the growing problem of United States citizens sexually victimizing children in foreign countries. Section VII introduces and analyzes the PROTECT Act, exposing a significant gap in the ability to enforce this federal law. Section VIII proposes a federal international mandated reporting law that will help close the gap and allow the PROTECT Act to achieve its objective of identifying and prosecuting United States citizens who sexually abuse children overseas.
May 3, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
Sunday, April 26, 2015
"Should former sex offenders be allowed on college campuses?"
The question in the title of this post is the first part of the headline given to this op-ed authored by Stephen JohnsonGrove, deputy director of the Ohio Justice & Policy Center. The rest of the headline, "Blanket policy doesn't work," suggests the author thinks the proper answer to this question is "no." And here are excerpts from the commentary:
Having a sensible safety conversation about living, working, and learning alongside people with sex-related convictions is fairly rare in Ohio, as it is in the rest of the U.S. Politically expedient fear-mongering and knee-jerk policy-making tend to be the norm, sometimes even creating a social environment where sexual offending is more likely, not less. The Ohio Justice & Policy Center has long been a voice in this state for laws and policies that are firmly rooted in evidence and a long-range commitment to safety.
A recent editorial in the Tri-C student newspaper ("Sex Offenders Mingling with Minors," March 10) raised the possibility of a sensible conversation in the community college context — though not without a little fear-mongering. The scenario painted in that editorial started with a "39-year-old registered sex-offender on parole for two separate cases of gross sexual imposition with both victims being under the age of 13." This may be a good place to start, and perhaps an easier case that we could all agree upon — this person ought not be put in an environment where he could so readily form potentially manipulative relationships with minors again.
There are harder cases, however. What about OJPC's client who, when a 19-year-old Marine home on leave, attended a party at Ohio State? While there, he met a young woman who said she was 18 and who certainly looked 18. After an evening of consensual sex, he was later confronted by her parents — by way of the local prosecutor — for statutory rape of a 16-year-old. Now in his 40s with children of his own, this man is on the public registry for life and has endured vigilante threats from neighbors who know nothing of the nature of his one and only sex offense, other than what the state-mandated postcard says: "Gross Sexual Imposition, Minor Victim."...
People with sex offenses are — despite any instinctive revulsion we may have to the label "sex offender" — still people. For some people with certain criminal records with a certain recency, perhaps online learning away from campus is the best alternative. For others with solid records of rehabilitation, we can and should welcome them into all aspects of our community — colleges included.
Sunday, April 19, 2015
After mistrial and plea deal, prominent accused child molestor in Delaware gets probation sentence
As noted in this recent post, there has been considerable controversy in California over a state judge earlier this month sentencing a teenager who pleaded guilty to a single child sex offense to "only" 10 years of imprisonment, a term well below the applicable 25-year mandatory minimum statutory sentencing term. (Bill Otis here at Crime & Consequences also complained about the judge's sentencing decision California case). With that recent case in mind, a notable contrast in context and outcomes emerges from this child sex offense story from Delaware. Here are the dynamic details (with a few bits of the story highlighted for subsequent comment):
Eric Bodenweiser — once a standardbearer of the Sussex County tea party, described by voter after voter in 2012 as a trustworthy Christian man — was sentenced to one year of probation Friday for committing two acts of unlawful sexual contact against a young boy in the 1980s. A judge sentenced Bodenweiser to a year in prison, but suspended it in lieu of the probation term. If Bodenweiser obeys the conditions of probation, he will not return to confinement. He must also register as a Tier 1 sex offender....
The sentence for Bodenweiser, 56, of Georgetown closes a scandalous chapter in Sussex politics. But for his indictment on more than 100 sex offenses in October 2012, Bodenweiser would likely be a state senator today, and not a sex offender. He had handily beaten an incumbent Republican senator in the September 2012 GOP primary in a district Democrats weren't likely to win. Days before his arrest, he abandoned his campaign.
Bodenweiser pleaded not guilty, and after a weeks-long trial in 2014, a jury was unable to reach a unanimous verdict on any one of 15 counts prosecutors brought in front of them. After the mistrial, Bodenweiser convinced Bradley any fair retrial would have to happen outside Sussex County because of the case's intense publicity and news coverage.
Prosecutors struggled, meanwhile, to keep the victim out of trouble. The man, who was in middle school when Bodenweiser was in his early 20s, lost his temper more than once on the stand under caustic questioning from Bodenweiser's attorney, Joe Hurley. And after the first trial ended, he was charged by Delaware State Police with a gun offense.
But before a second trial began, Bodenweiser accepted a plea offer from prosecutors on March 18, pleading no contest to two less serious crimes with the knowledge it meant a guilty verdict.
The victim, now in his late 30s, testified that repeated sexual advances and assaults by Bodenweiser affected him deeply. "I couldn't understand why it kept happening and why he wanted me to do these things," the man said last year in court. "I thought something was wrong with me." He came forward after years of silence, he testified, because he was alarmed Bodenweiser was about to win the election.
At his trial, Bodenweiser was charged with but ultimately not convicted of raping the victim, forcing him to take part in complete sex acts. That, though, is not what he pleaded no contest to in March; his pleas were for the lesser offenses of unlawful sexual contact, of "touching the genitalia" of the boy, as prosecutor John Donahue said in court.
Bodenweiser took the stand at trial to deny exposing the boy to anything more salacious than an occasional glimpse of pornography. His pastor, though, testified that in the fall of 2012, Bodenweiser told him "there's something there, there," in the context of discussing the accusations. Hurley fought hard, court records show, to have the pastor's testimony excluded from trial.
In my discussion of the California sex offense sentencing case over at Crime & Consequences, I stressed that I am generally more concerned about prosecutorial discretion than judicial discretion because of how opaque and consequential prosecutorial discretion can be. In this case, I cannot help but wonder if politics played a role in the timing of the prosecutorial decision to indict a up-and-coming outsider politician for over 100 sex offenses that allegedly took place 25 years earlier. Notably, the defendant had his political career ruined just by the prosecutorial decision to indict on so many salacious charges.
Despite his career being ruined just by the charges, the defendant here exercised his right to require the prosecution to prove up its case in a public trial. Once a public open trial was required, prosecutors apparently decided only to seek to prove up 15 of the 100+ alleged offenses, which makes me further question the evidentiary basis for the 100+ charges in the initial indictment. And even with only its 15 strongest charges now in play, the prosecutors could not convince a jury that the defendant as guilty of a single charged offense.
Thereafter, perhaps because prosecutors finally realized how weak their case was now that it was subject to public review and scrutiny, prosecutors decided they could be content with the defendant getting sentenced to probation for what they previously alleged was 100+ sex offenders. But still eager to have this defendant forever officially branded a sex offender, the prosecutors sought to cut the defendant a deal he could apparently thought unwise to refuse.
I am not asserting that state prosecutors here did anything wrong in the way they handled this notable child sex offense case. What I am saying is that I would like a whole lot more information about how and why state prosecutors did what they did. But, to my knowledge, there are no ready means for me or anyone else in the general public to get more information or understanding about what may have (and have not) influences prosecutorial decision-making in this matter.
Thursday, April 16, 2015
Effective review of on-going reviews of sex offender residency restrictions
This new reporting by Steven Yoder via The Crime Report provides an effective update on what is going on lately with state-level sex offender residency restrictions and other sex offender laws and policies. The extended piece has this extended headline: "You Can’t Live Here: Do residency bans and other tough measures on sex offenders work? The evidence suggests they are counterproductive — and some states are already shifting policies." Here are excerpts:
Last month, the California Supreme Court ruled such blanket residency bans [on sex offenders] unconstitutional. It based the decision in part on evidence that residency laws drive up homelessness among offenders and make it harder for state authorities to monitor and rehabilitate them. It’s the latest sign that science has begun to trump passion on what is one of the most sensitive areas of criminal justice.
During the 1990s, at least 30 states enacted residency restrictions on convicted sex offenders who were released into their communities, as part of what appeared to be an increasingly harsh crackdown across the nation. Congress passed six new federal laws that ratcheted up penalties on those convicted of sex crimes. In some towns, the crackdown has extended to ordinances prohibiting those with a sex offense on their record from putting up Halloween decorations....
Today more than 20 states have sex offender policy boards, says Chris Lobanov-Rostovsky program manager for Colorado’s Sex Offender Management Board. That number is down slightly since 2010 — that year, 24 states had boards, according to a 2010 report by the Center for Sex Offender Management, funded by the Department of Justice.
A few of these groups last just a year or two and tackle discrete issues like how to certify sex offender treatment providers. Others take on broader offender management policies, weighing in on the likely impact of proposed bills.
Colorado’s board has run for more than 20 years, and Lobanov-Rostovsky gets about half a dozen calls a year from other states asking for advice on setting up their own boards. He travels to about one state a year to offer hands-on help, though he’s not aware of any states that have set up new boards in the last two years.
Boards normally pull in the groups that matter on the issue, typically including representatives of state law enforcement and other agencies, prosecutors, defense attorneys, judges or their representatives, sex offender treatment professionals, and victim advocates. Some boards have full or part-time salaried staff, as in Colorado’s case. Not surprisingly, boards with staff are more productive than those without, Lobanov-Rostovsky says.
Wednesday, April 15, 2015
"Database Infamia: Exit from the Sex Offender Registries"
The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:
Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means. Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.
This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.
April 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Friday, April 10, 2015
Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term
As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:
Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.
At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.
"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.
"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."
Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...
Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."
But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...
Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...
The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....
"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.
During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."
The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.
The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."
Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.
"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.
Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.
April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction
Long-time readers may recall the remarkable state sentencing story, covered here and here, involving Daniel Enrique Guevara Vilca. In 2011, a Florida circuit court judge sentenced Vilca, then aged 26 and without any criminal record, to LWOP based on a laptop containing hundreds of pornographic images of children. On appeal, Vilca challenged his trial and his severe sentence, and he prevailed in an opinion released just today. Here are part of the opinion in Guevara-Vilca v. Florida, No. 2D11-5805 (Fla. App. 2d Dist. Apr. 10, 2015) (available here), with a few cites omitted):
Daniel Guevara-Vilca appeals his convictions for possession of child pornography. Owing to a discovery violation by the State, we reverse and remand for a new trial....
During the trial, the State introduced 206 photographs and 248 videos containing child pornography, each of which was charged in a separate count. The file names generally contained descriptive terms. All of the material had been downloaded to the laptop from January 2009 to January 2010 using LimeWire, a file-sharing program. The files were found in thirteen different folders on the computer, including the recycle bin....
The jury returned guilty verdicts on all 454 counts. Although Guevara-Vilca had no prior criminal record, under his sentencing scoresheet the minimum permissible sentence was 152.88 years in prison; the scoresheet contained enough points to permit a sentence as severe as life imprisonment. The trial court sentenced Guevara-Vilca to 454 concurrent life terms....
Guevara-Vilca raises multiple issues on appeal. We agree with his assertion that the trial court erred in its handling of the State's discovery violation. The State was required to disclose Guevara-Vilca's pre-Miranda response to the detective's question, see Fla. R. Crim. P. 3.220(b)(1)(C), and it admittedly did not do so.... The record cannot be said to affirmatively reflect that the discovery violation caused no prejudice to the defense; to the contrary, the record strongly supports the opposite conclusion....
We reverse Guevara-Vilca's convictions and remand for a new trial. This renders moot, for now, the sentencing issue raised on appeal. Guevara-Vilca argued, below and on appeal, that a life sentence violated the constitutional prohibition against cruel and unusual punishment. Our analysis of the sentence at this point would be dicta, and it is not our intention to prejudge an issue that may be raised in a subsequent appeal if Guevara-Vilca is convicted on remand. But the issue, if raised, deserves serious consideration by the sentencing court. Indeed, it is noteworthy that if Guevara-Vilca had been charged with possession of child pornography with intent to promote, he could have been convicted and sentenced for only one second-degree felony count rather than 454 third-degree felony counts.
Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure. Guevara-Vilca's mother testified at sentencing that her son was born prematurely and that, at ages five and around thirteen, he had surgeries to remove brain tumors. Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he graduated from high school, his grades were "D's and E's." Cf., e.g., § 921.0026(c), (d), Fla. Stat. (2008) (providing for downward departures when defendant's capacity to appreciate criminal nature of conduct or conform to law was substantially impaired; or when defendant requires, and is amenable to, treatment for mental disorder unrelated to substance addiction).
Prior related posts:
- Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn
- "Life Sentence for Possession of Child Pornography Spurs Debate Over Severity"
Thursday, April 09, 2015
"Reality check: Is sex crime genetic?"
The question in the title of this post is the headline of this interesting new Science piece that a helpful reader sent my way. Here are excerpts:
A splashy headline appeared on the websites of many U.K. newspapers this morning, claiming that men whose brothers or fathers have been convicted of a sex offense are “five times more likely to commit sex crimes than the average male” and that this increased risk of committing rape or molesting a child “may run in a family’s male genes.” The study, published online today in the International Journal of Epidemiology, analyzed data from 21,566 male sex offenders convicted in Sweden between 1973 and 2009 and concluded that genetics may account for at least 40% of the likelihood of committing a sex crime. (Women, who commit less than 1% of Sweden’s sexual offenses, were omitted from the analysis.) The scientists have suggested that the new research could be used to help identify potential offenders and target high-risk families for early intervention efforts.
But independent experts — and even the researchers who led the work, to a certain degree — warn that the study has some serious limitations. Here are a few reasons to take its conclusions, and the headlines, with a generous dash of salt.
Alternate explanations: Most studies point to early life experiences, such as childhood abuse, as the most important risk factor for becoming a perpetrator of abuse in adulthood. The new study, however, did not include any detail about the convicted sex criminals’ early life exposure to abuse. Instead, by comparing fathers with sons, and full brothers and half-brothers reared together or apart, the scientists attempted to tease out the relative contributions of shared environment and shared genes to the risk of sexual offending....
Data on sexual crimes are tricky to obtain and parse: It’s extremely difficult to collect sufficient data about sexual offenders and their families to detect statistically robust patterns. Sweden is unusual because its nationwide Multi-Generation Register allows researchers to mine not only anonymized criminal records, but also to link them with offenders’ family records as well. Even with access to a nationwide database, Seena Fazel, of the University of Oxford in the United Kingdom, and colleagues had to include a very diverse range of offenses, from rape to possession of child pornography and indecent exposure, to maintain a large sample size.
The team did do some analysis by type of offense, separating rape from child molestation, for example. But some researchers worry that attributing a genetic basis to such a wide swath of behaviors is premature. There are also problems with relying on conviction records: Many more sexual crimes are committed than reported, and the proportion of those that go to trial is even smaller.
In addition, families with one member who has been convicted of a sexual offense are likely to be under much higher scrutiny by social services and law enforcement, leading to potential detection bias that artificially enhances the perception that sex crimes run in families, says Cathy Spatz Widom, a psychologist at the City University of New York who studies the intergenerational transmission of physical and sexual abuse. In a recent study, for example, Widom found that parents with a formal record of being abused as children were 2.5 times more likely to be reported to Child Protective Services for abusing their own children than parents in a control group who admitted to abusing their children, or whose kids said they had been mistreated.
The absolute risk of becoming a sex offender is very low: One of the study’s more dramatic-sounding findings is that brothers and fathers of sex offenders are four to five times as likely as men in the general population to commit sex crimes themselves. That statistic seems pretty striking until you look at the low prevalence of sex offense convictions in Sweden overall....
In summary, there’s no doubt that some families are at a higher risk for abuse and criminal behaviors, including sexual offenses. But we’re a long way from pinning down genes that can explain why a person commits rape or any other sex crime.
Wednesday, April 08, 2015
Federal judge finds unconstitutional "geographic exclusion zones" for sex offenders in Michigan
Thanks to a helpful reader, I did not miss this notable new story from the state up north headlined "Sex offenders can be within 1,000 feet of schools after federal judge strikes down parts of law." Here are the details:
A federal judge struck down some portions of Michigan's Sex Offender Registry Act in a court decision handed down last week. U.S. District Court Judge Robert Cleland issued a ruling March 31, striking down four portions of Michigan's Sex Offender Registry Act, calling them unconstitutional. The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of five John Does and one Jane Doe against Michigan Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue.
Cleland's ruling stated the "geographic exclusion zones" in the Sex Offender Registry Act, such as student safety areas that stretch for 1,000 feet around schools, are unconstitutional, according to court documents.
The law is too vague on whether the 1,000 feet barrier should be as the crow flies or how people actually travel, and if it goes from building-to-building or property-line-to-property-line, Cleland said in his ruling. "While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are susceptible to vagueness concerns," he wrote.
Cleland also stated law enforcement doesn't have strong enough guidelines to know how to measure the 1,000-foot exclusion zone around schools. Neither sex offenders or law enforcement have the tools or data to determine the zones, even if the guidelines on how to measure the zones were stronger, he said. "Accordingly, due to (the Sex Offender Registry Act's) vagueness, registrants are forced to choose between limiting where the reside, work and loiter to a greater extent than is required by law or risk violating SORA," he wrote.
Cleland struck down other portions of the law as well, but ruled in favor of the government on the rest of the lawsuit. Other portions of the law ruled unconstitutional were: a requirement to report in person to the "registering authority" when an offender begins to drive a vehicle regularly or begins to use a new e-mail or instant messaging address; a requirement for an offender to report all telephone numbers routinely used by an offender; a requirement to report all e-mail and instant messaging addresses; a requirement to report the license plate number, registration number and description of any motor vehicle, aircraft or vessel used by an offender....
The ruling drew an immediate reaction from State Sen. Rick Jones, R-Grand Ledge. In a statement released Tuesday morning, Jones, a former sheriff, said he plans to help rewrite the law to make up for the judge's ruling. "I warn sex offenders to stay away from schools. This is one judge's ruling, and the law will soon be changed to clarify it," said Jones, the chair of the Senate Judiciary Committee. "I'm working to make sure there is no vagueness in Michigan's Sex Offender Registry law. Child molesters must stay away from our schools. Law enforcement will be watching."
The full ruling, which runs 70+ pages, is available at this link.
Friday, April 03, 2015
Should age matter at sentencing of elderly child molester?
The question in the title of this post is prompted by this local article headlined "Sentencing delayed for 89-year-old child molester in Santa Cruz County." Here are excerpts:
An 89-year-old Felton man is expected to be sentenced in May for molesting a girl younger than 9, but her supporters fear that his advanced age might play a role in a reduced sentence.
Thursday, Santa Cruz County Superior Judge Stephen Siegel delayed a sentencing for Eric Frank Greene, who already pleaded no contest to a felony charge of lewd acts with a minor. The crimes took place in 2004.... Prosecutor Rafael Vazquez said he does not believe there are other victims.
Greene faces a wide range of sentences, from probation to up to eight years in prison. “I haven’t made an ultimate decision, but I am contemplating probation,” Siegel said in court Thursday.
More than 15 supporters of the victim attended the hearing, and Siegel said he received a folder full of letters about the case from many of them Wednesday that he needed to review. Because probation is his indicated sentence, the law requires Greene to be evaluated by a psychologist and by County Probation leaders to see if he would benefit from probation....
Greene, who has no criminal record in Santa Cruz County, remained out of jail. He said in court that he has severe hearing problems, but he walked without a cane or other aid and appeared in good health.
Vazquez said outside court that Greene caused ongoing psychological harm to the victim. “It doesn’t matter that he’s that old,” Vazquez said of Greene outside court. “The fact is that he’s committed this egregious act. They want him to be held accountable just like any other person.”
Monday, March 30, 2015
Two SCOTUS summary reversals: a notable sex-offender monitoring issue and another AEDPA enforcement
In addition to granting cert on a bunch of Kansas capital cases, the US Supreme Court this morning issued two short per curiam summary reversals today in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), and Woods v. Donald, No. 14-618 (S. Ct. March 30, 2015) (available here). The second of these rulings is just another example of the Justices helping a circuit (this time the Sixth) better understand that AEDPA precludes a habeas grant unless and until an "underlying state-court decision [is] 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' [the Supreme Court]."
But the first of these rulings are notable because it clarifies and confirms that the Fourth Amendment is applicable to sex offender monitoring. Here are key passages from the ruling in Grady:
Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender. See N. C. Gen. Stat. Ann. §§14–208.40(a)(1), 14– 208.40B (2013). Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes. He argued, however, that the monitoring program — under which he would be forced to wear tracking devices at all times — would violate his Fourth Amendment right to be free from unreasonable searches and seizures. Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life....
The only explanation provided below for the rejection of Grady’s challenge is [a] passage from [a prior state ruling]. And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents....
[T]he State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information. If the very name of the program does not suffice to rebut this contention, the text of the statute surely does.... The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.
That conclusion, however, does not decide the ultimate question of the program’s constitutionality. The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State’s monitoring program is reasonable — when properly viewed as a search — and we will not do so in the first instance.
Sunday, March 29, 2015
Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion
This local article from the Beaver State, headlined "Oregon Supreme Court to consider: Is it 'cruel and unusual' to imprison public masturbator for life?," reports that the top court in Oregon is taking up a notable sentencing issue in a notable setting. Here are the details:
William Althouse is serving a life prison sentence -- but not because, like many in that situation, he killed someone. Althouse, 69, has repeatedly exposed his genitals in public with sexual intent. In 2012, after a Marion County jury found him guilty of that conduct again, a judge sentenced him to life without any hope of being released.
The Oregon Supreme Court, however, announced Thursday that it will consider if that amounts to cruel and unusual punishment. The sentence is disproportionate to the offense, said Daniel Carroll, the defense attorney who represented Althouse at trial, told The Oregonian/OregonLive on Friday. "No one died," he said.
The high court's consideration of the case seems particularly timely given another lengthy sentence -- 18 years -- handed down to a 49-year-old Sherwood man last week who was found guilty of masturbating or exposing himself eight times at the drive-through windows of fast-food restaurants and coffee shops.
In Althouse's case, the state likely will point out that he isn't only a serial flasher -- his life sentence was meant to reflect a long and concerning history of sex offenses. His sex crime convictions include sexual abuse in 1982 and kidnapping, sodomy and sexual abuse in 1993.
Typically, first-time public indecency offenders receive probation and counseling. It's unclear from court records how many times Althouse has been convicted of public indecency, but when he was convicted in 2002 of the crime, court records indicate that he had at least one earlier conviction.
Althouse, who was living in Salem, was arrested in his last case after a female jogger reported seeing him exposing his genitals -- the prosecution contended masturbating -- along a walking path next to the Salem Parkway in October 2011. After a jury found him guilty in 2012, Marion County Circuit Judge Lindsay Partridge sentenced Althouse to the life term under an Oregon law meant to get tough on sex offenders after their third felony sex conviction.
One of many interesting aspects of this case is the import and possible impact of the age of the offender. In recent SCOTUS rulings, some Justices seemed sensibly influenced by the reality that an LWOP sentence for a juvenile offender can be functionally worse than even a no-parole 50-year sentence. But for an offender in his late 60s, an LWOP sentence is arguably functionally no worse than a no-parole 50-year sentence. Whether and how that should matter for constitutionally purposes is an issue still not yet resolved in debates over LWOP sentences that have been described as "living death sentences."
Saturday, March 28, 2015
Notable effort by "World’s Worst Mom" to take on sex offender registries
This new Salon piece provides an interesting Q&A with notable author who has become famous for criticizing overprotective parenting and who is now criticizing what she sees as ineffective sex offender registries. The piece is headlined "Stop the sex-offender registry panic: 'A lot of those dots on the map would never hurt your kids'," and here is how the Q&A is introduced:
Lenore Skenazy came to fame for letting her 9-year-old son ride the New York subway home by himself. Or rather, she came to fame by letting him ride the subway home alone and then writing about it for the New York Sun.
The piece led to an outcry — she was dubbed “America’s worst mom” — which, of course, meant that the essay had to become a book: “Free-Range Kids, How to Raise Safe, Self-Reliant Children (Without Going Nuts With Worry).” In the five years since its publication, the book has inspired a movement among parents who want to give their children the freedom to do things like walk home from school alone. It’s a backlash to our age of “helicopter” and “bubble wrap” parenting. (If you suspect these monikers are exaggerations, consider that a Skenazy devotee recently had five police cars arrive at his house after his 10- and 6-year-old were seen walking alone.) Now Skenazy has a show on the Discovery Life channel, “World’s Worst Mom,” which sees her swooping into homes and coaching overprotective parents in a style reminiscent of the ABC reality-TV show “Suppernanny.”
Recently, Skenazy has taken on a new, albeit related, cause: reform of the sex offender registry. Clearly, this lady is not afraid of controversy. On Sunday, she held a “Sex Offender Brunch” at her house to introduce “her friends in the press to her friends on the Registry.” One of her guests was Josh Gravens, who at age 12 inappropriately touched his 8-year-old sister and landed on the registry as an adult.... The materials accompanying her press release contend that the sex offender registry, which was created to “let people identify dangerous individuals nearby…has failed to have any real impact on child safety, and may actually do more harm than good.”
She’s effectively flinging open the closet door and saying, “See? There’s no boogeyman in there” (or, if you will, flipping on the lights to offer assurance that the “monster” in the corner is actually just a lamp that made some mistakes when it was younger and means no harm). This is entirely consistent with her “Free-Range Kids” activism, but she’s taking it a step further now, moving beyond just squashing parental fears about stranger danger to helping those who have been unfairly labeled as dangerous strangers.
Friday, March 27, 2015
Prodded by state court ruling, California announces it will not enforce sex offender residency restrictions
The potential import and impact of state court litigation over collateral consequences is on full display now in California as a result of the news reported in this Los Angeles Times article:
California officials announced Thursday that the state would stop enforcing a key provision of a voter-approved law that prohibits all registered sex offenders from living near schools. The California Department of Corrections and Rehabilitation said it would no longer impose the blanket restrictions outlined in Jessica's Law that forbids all sex offenders from living within 2,000 feet of a school or park, regardless of whether their crimes involved children.
High-risk sex offenders and those whose crimes involved children under 14 will still be prohibited from living within a half-mile of a school, the CDCR emphasized. Otherwise, officials will assess each parolee based on factors relating to their individual cases, the agency said. The shift comes nine years after California voters approved the controversial law, which has made it difficult for some sex offenders to find places to live.
The California Supreme Court on March 2 unanimously ruled that Jessica's Law violated the constitutional rights of parolees living in San Diego County who had argued that the limitations made it impossible for them to obtain housing. As a result, advocates said, some parolees were living in places like riverbeds and alleys.
"While the court's ruling is specific to San Diego County, its rationale is not," CDCR spokesman Luis Patino said Thursday. "After reviewing the court's analysis, the state attorney general's office advised CDCR that applying the blanket mandatory residency restrictions of Jessica's Law would be found to be unconstitutional in every county."
The CDCR sent a memo to state parole officials on Wednesday outlining the policy change. The directive said residency restrictions could be established if there was a “nexus to their commitment offense, criminal history and/or future criminality." The memo said officials would soon provide further direction on how to modify conditions for parolees currently already living in the community....
A CDCR report found that the number of homeless sex offenders statewide increased by about 24 times in the three years after Jessica's Law took effect. Parole officers told the court that homeless parolees were more difficult to supervise and posed a greater risk to public safety than those with homes.... The court ultimately determined that the residency restrictions did not advance the goal of protecting children and infringed on parolees' constitutional rights to be free of unreasonable, arbitrary and oppressive government action.
This news reinforces my view that California's Supreme Court ruling in In re Taylor, S206143 (Cal. March 2, 2015) (available here) was especially significant for the future of sex offender residency restrictions. I am not surprised that California state officials concluded after reading Taylor that it had to modify how it approached Jessica's Law. The next big question is whether and how courts in other states will respond if and when Taylor is used by advocates to attack other residency restrictions similar to Jessica's Law.
A few prior recent related posts:
- California Supreme Court rules blanket sex-offender residency restriction fails rational basis review
- "Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"
- Growing awareness of the limited efficacy of local sex offender residency restrictions
Monday, March 23, 2015
Did serial rapist, former NFL star Darren Sharper, benefit from celebrity justice in global plea deal?
The provocative question in the title of this post is prompted by the notable celebrity sentencing news breaking today and reported in this extended USA Today article headlined "Darren Sharper sentenced to nine years in first of plea deals." Here are the details:
Former NFL star Darren Sharper was sentenced to nine years in prison Monday in Arizona after pleading guilty to sexual assault and attempted sexual assault in November 2013, the Maricopa County Attorney's office confirmed to USA TODAY Sports.
Sharper, 39, entered his pleas Monday in Arizona from Los Angeles, where he was expected to appear in court later in the day and enter a guilty plea in connection with two other rape allegations from 2013 and 2014.
The pleas are part of an attempted "global" plea agreement that could resolve all nine rape charges against him in four states. In addition to the charges in California and Arizona, he faces two rape charges in Las Vegas and three in New Orleans, where is expected to enter guilty pleas within the next month.
The sentences will run concurrently in federal prison, said Jerry Cobb of the Maricopa County Attorney's office. Sharper is not eligible for early release in Arizona, but will be credited for time served in Los Angeles, where he has been in jail without bail since Feb. 27, 2014.
By agreeing to the plea deal, Sharper, 39, avoids the risk of receiving an even worse punishment in the future and expensive litigation that could drag on indefinitely in four states. If convicted, he faced life in prison in Louisiana and more than 30 years in Los Angeles. For prosecutors, the plea deal avoids the risk of going to trial, where juries might be influenced by Sharper's fame and celebrity defense attorneys.
His suspected string of serial rapes ended in January 2014, when he was arrested on a suspicion of rape in Los Angeles. At the time of his first arrest, he had 20 zolpidem pills in his possession – a sleep drug known by its brand name Ambien. Sharper obtained a prescription for the drug after suffering sleep problems he attributed to his 14-year career in the NFL with the New Orleans Saints, Green Bay Packers and Minnesota Vikings, according to a workers compensation claim form he filed in 2012.
The drug can be slipped into drinks to knock out women and rape them, and that's what authorities say Sharper did time after time, according to court records. Sharper ultimately was charged with nine rapes in four states, including three in consecutive nights in two different states in January 2014.
None of the cases went to trial or even received an evidentiary hearing except in Arizona, where a judge ruled last April there was "proof evident" Sharper raped a women there in November 2013. DNA found inside the women's body partially matched Sharper's, and a witness reported waking up and seeing Sharper naked and making thrusting movements over the woman, according to a detective's testimony at the hearing.
The detective said the woman hadn't known Sharper before that night and didn't remember what happened to her after consuming a drink Sharper made her. Zolpidem was found in the cup in subsequent tests. Though Sharper's attorney noted that none of Sharper's sperm was found on the alleged victims in Arizona, the detective said he was told that Sharper had a vasectomy, which could explain the lack of sperm. The revelation caused a stir that day in Arizona, where Sharper was charged with drugging three women and raping two of them.
In Los Angeles, he was charged with drugging and raping two women – one in October 2013 and one in January 2014. In the first one, Sharper met two women at a club in West Hollywood and later invited them to his hotel room, where he offered them a drink, according to a police report of the incident filed in court....
In New Orleans, Sharper was accused of drugging and raping two women in September 2013. He also faced federal drug charges and another rape charge from Aug. 31, 2013, all of it happening just a few years after he helped the Saints win a Super Bowl in 2010.
Though the evidence against Sharper has not, obviously, been proven in court, this press account and his global plea leads me to think he truly is guilty of nine rapes. And assuming that is true, a year in prison for each of nine rapes is a pretty sweet plea deal. Ergo the question in the title of this post.
Tuesday, March 10, 2015
Depressing news that sentencing toughness is doing little to deter child porn offenses
Regular readers know about the severity of some federal and state sentencing schemes for the downloading of child pornography. The federal sentencing guidelines often recommend sentences of a decade or longer just for downloading child porn (though federal judges do not always follow these guidelines). In one notable case from Florida, as reported here, a first offender received an LWOP sentence for downloading illegal images on a laptop. And in Texas a few years ago, as reported here, a child porn downloader received a sentence of 220 years (though probably mostly do to evidence of lots of child molesting).
I have long hoped that these kinds of severe sentences for computer sex offenses would help serve to deter others who might otherwise be inclined to be involved in the harmful and disturbing activity of creating and distributing sexual picture of children. Sadly, though, according to this discouraging new Houston Chronicle article, child pornography still "is increasing fast, authorities say." The article is headlined "Child porn reports soaring with technology upgrades," and here are excerpts:
Every week in the Houston area, FBI agents execute warrants on child pornography charges, said agency spokeswoman Shauna Dunlap. "It's one of our busiest areas," Dunlap said. "We're serving search warrants or arrest warrants across the city and county area, whether for our (Houston Area Cyber Crimes) Task Force or the (Harris County) District Attorney's Office."
On Feb. 13, William Butler Myers of Meadows Place in Fort Bend County was sentenced to nearly 20 years (236 months) in federal prison for attempted production of child pornography involving a 14-year-old girl, U.S. Attorney Kenneth Magidson's office announced. Myers, 43, entered a guilty plea on Nov. 21, 2013. Charges against Myers resulted from evidence found on a cellphone that he took to a repair shop. A shop employee called police after seeing what he thought was child pornography on the phone, officials said.
Cellphone evidence also led to charges against Jason Ryan Bickham, 32, of Orange. He pleaded guilty in September to possession of child pornography and was sentenced Feb. 24 to 10 years in federal prison, U.S. Attorney John M. Bales of the Eastern District of Texas announced last month.
With technology advancing rapidly, federal authorities expect the crime of creating, possessing or distributing pornographic images to increase as well, Dunlap said. "One of the issues and concerns with child pornography is that, once those images are shared, there's a great possibility for the victims to be revictimized each time those images are traded and shared," she said....
Like most crimes, this one cuts across socioeconomic lines. "We've had affluent individuals, those in positions of trust and regular, everyday individuals," Dunlap said. "There's not necessarily any particular stereotype with this crime."
On Thursday, March 12, former Denton High School teacher Gregory Bogomol is scheduled to be sentenced in federal court in Fort Worth after pleading guilty to two counts of producing child pornography. Each count carries a maximum sentence of 30 years in federal prison. Bogomol allegedly used social media applications such as KIK, Grindr, and Pinger to initiate conversations with underage males and to entice boys to produce sexually explicit pictures, authorities said.
Terry Lee Clark of Corpus Christi, who admitted possessing more than 5 million pornographic images, was sentenced Feb. 26 to eight years in federal prison, according to a news release from the office of U.S. Attorney Kenneth Magidson for the Southern District of Texas. Clark pleaded guilty in October to possession of illegal pornograpic images, including about 47,000 involving pre-pubescent females, some under the age of 12, engaging in sexually explicit conduct with adult males, authorities said.
On Feb. 17, a Galveston jury convicted William Cody Thompson of two counts of possession of child pornograpny. He was sentenced the next day to 10 years in Texas state prison on each count, with the sentences to run consecutively. Agents with the Houston Metro Internet Crimes Against Children Task Force conducted an investigation, which led to a 2013 search warrant for Thompson's residence and the discovery of thousands of pictures and videos on multiple computers, officials said.
Since 2010, child pornography reports to the National Center for Missing and Exploited Children's cyper tip line have skyrocketed, said John Shehan, executive director of the agency's Exploited Child Division. "We certainly have an increasing trend," he said, noting that 223,000 reports were received in 2010, compared with 1.1 million in 2014 and 560,000 in the first two months of this year.
Part of the spike is explained by a federal law that requires electronic service providers to make a report to the Cyber Tip Line if they become aware of child pornography images on their systems, Shehan said. "Many companies are proactively looking on their network for child sexual abuse images," he said, which likely means they learn about more images than they would by happenstance.
Also boosting the numbers, Shehan said, is the fact that pictures are easily spread around the globe online, he said. Of this year's half-million reports to the tip line, 92 percent were linked back to IP addresses abroad, he said.
However the number of federal child-exploitation cases brought against defendants between 2009 and Fiscal Year 2014 has hovered around 2,100, dipping to 2,012 in Fiscal Year 2012 and jumping up to 2,331 the next year.
This story confirms what social scientists have long known about deterrence: even a very severe punishment is unlikely to deter if its imposition is neither certain nor swift. This story suggests that there may well be at least 1000 other child porn offenses for every one that gets prosecuted. Even if a jurisdiction were to try imposing a death sentence for child porn offenses (which, of course, the Supreme Court has held to be unconstitutional in the US), such a severe sanction would be very unlikely to deter when there is less and a .1% chance of any offender getting caught.
I have long been concerned about the efficacy of severe child porn sentences in the federal system, and this story heightens my concern. In the end, I think some distinct technology and a kind of economic sanction on tech facilitators of this scourge is now needed far more than still tougher sentences (which may not even be possible) in order to deal with this still growing problem.
Sunday, March 08, 2015
Can a sheriff prohibit sex offenders from a church that is sometimes a school?
The question in the title of this post is prompted by this story coming from North Carolina, headlined "Graham sheriff bans sex offenders from church." Here are the details:
A sheriff in one of North Carolina's smallest counties told sex offenders they can't attend church services, citing a state law meant to keep them from day care centers and schools. Sheriff Danny Millsaps, in Graham County, told the registered offenders about his decision on Feb. 17, according to a letter obtained by the Asheville Citizen-Times on Friday....
"This is an effort to protect the citizens and children of the community of Graham (County)," he wrote. "I cannot let one sex offender go to church and not let all registered sex offenders go to church." He invited them to attend church service at the county jail.
Millsaps, in an interview on Friday, said he may have made a mistake when he wrote that offenders "are not permitted to attend church services." He said he understands the Constitution gives everyone the right to religious freedom. But, he said, he's standing by his take on the law blocking offenders from places where children are present.
"I understand I can't keep them from going to church," he said. "That may have been misunderstood. I'll be the first one to say I might have made mistakes in the wording of that letter." He said he has no immediate plans to arrest a sex offender should one of the 20 in his county attend church on Sunday.
Graham County Manager Greg Cable said the county attorney is looking into the matter and any legal mistakes would be corrected. The American Civil Liberties Union in Raleigh, at the newspaper's request, is reviewing the letter the sheriff sent. The newspaper also sent a copy to the state Department of Justice for an opinion on the law....
Other North Carolina counties have dealt with the same issue. Deputies in Chatham County in 2009 arrested a sex offender for attending church, citing the same law. A state Superior Court judge eventually ruled the law, as applied to churches, was unconstitutional.
In Buncombe County, sex offenders are permitted in church as long as pastors know and are in agreement, Sheriff Van Duncan says. That's similar to the county's policy for allowing sex offenders at school events such as ball games. They are allowed as long as school administrators have warning and the offenders are monitored to some extent, the sheriff said. The law allows schools to do this, a factor the judge noted back in 2009 in the Chatham County case.
Duncan said if a sex offender threatens a child at a church or school event, the law can be enforced and used to ban the offender. He said church leaders in Buncombe County, generally, want to minister to sex offenders.
The law applies to churches that run schools Monday-Friday the same as it would apply to county or city schools during the week. Sex offenders are generally banned from school property.
Wednesday, March 04, 2015
First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing
Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing. The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:
Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.
The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.
We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges. We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....
A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.
Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance. We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.
Some related prior posts:
P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post. It has been a long day.
March 4, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack
Monday, March 02, 2015
California Supreme Court rules blanket sex-offender residency restriction fails rational basis review
In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds. As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."
As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:
In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b). As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....
The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole. We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.
March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Wednesday, February 18, 2015
Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable
Regular readers who follow federal sentencing in child porn cases likely recall that the Sixth Circuit and an Ohio-based federal district judge got into a sentencing tug-of-war over the sentencing of child porn downloader Richard Bistline not long ago. And even irregular readers should know that circuits, if they stick with it, will always win these kinds wars. More proof of that reality come from another similar Sixth Circuit case decided today, US v. Robinson, No. 13-230806 (6th Cir. Feb. 18, 2015) (available here), which starts this way:
The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant’s previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (“Robinson I”). On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served. The district court also lengthened the period of supervised release and imposed additional conditions of release. The government’s second appeal raises the question of whether this second sentence is substantively reasonable.
For the reasons set forth below, we VACATE Defendant’s sentence and REMAND the case for reassignment and resentencing.
Prior related posts concerning similar case:
- Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
- District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal
- "Should defendants’ age, health issues be sentencing factors?"
- Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence for child porn downloading in Bistline
February 18, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
AP report details that, functionally, California kills many more sex offenders than murderers
Formally, California sends many more murderers to its death row than any other state and it has more condemned capital prisoners than two dozen other US death penalty states combined. But California has only managed to actually execute fourteen of those sentenced to die and nobody has been executed by the state in nearly a decade. Meanwhile, as this new AP report details, over the last eight years, while California has not moved forward with an execution of a single condemned murderer, a total of 78 sex offenders have been slaughtered inside California's prisons. Here are the basics:
California state prisoners are killed at a rate that is double the national average — and sex offenders ... account for a disproportionate number of victims, according to an Associated Press analysis of corrections records.
Male sex offenders made up about 15 percent of the prison population but accounted for nearly 30 percent of homicide victims, the AP found in cataloging all 78 killings that corrections officials reported since 2007, when they started releasing slain inmates' identities and crimes.
The deaths — 23 out of 78 — come despite the state's creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.
In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.
Corrections officials blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members....
The problem is most acute with sex offenders. Last fall, the corrections department's inspector general reported that so many homicides occurred in the "increasingly violent" special housing units reserved for vulnerable inmates that the department could no longer assume that inmates there could peacefully co-exist. The report looked at 11 homicide cases that were closed in the first half of 2014 and found that 10 victims were sensitive-needs inmates. Using corrections records, the AP found that eight of them were sex offenders.
For a variety of reasons, most states have special facilities incorporated into their "death row," and condemned prisoners on death row are often eager to be well behaved in the hope of increasing their odds of getting out from under a death sentences eventually. Consequently, it can often be much safer for certain prisoners to be condemned and confined to death than to be in the general population. And this new AP report reinforces my sense that a serious California criminal likely would lead a more peaceful and safe life in prison if and when he murders and gets condemned to death than if he just commits a sex offense. (In addition to being a disturbing practical reality, these dynamics might perhaps prompt and incentivize a "rational rapist" in California to murder one or more his victims in order to ensure he can potentially avoid the dangers of the general prison population and live out his life peacefully pursuing appeal after appeal while safe and secure on death row.)
Monday, February 16, 2015
Senate unanimously passes child porn restitution bill to fix Paroline problems
As report in this article, last week the U.S. Senate finally passed a bill to restructure the standards and procedures for restitution awards for victims of child porn downloading offenses. This bill made it through the full Senate a little less than year after the Supreme Court issued a split decision on this matter in the Paroline case. Here are the basics of the response by Congress:
A bill named for two women whose childhood images were turned into heinous pornography was handily passed in the Senate on Wednesday. The Amy and Vicky Child Pornography Victim Restitution Improvement Act was approved by a 98-0 vote.
The measure gives hope to victims that they will finally be able to win major compensation from any single person who illegally viewed, made or distributed their images. Victims of child pornography and other sexual exploitation “ought to have access to full restitution from any single perpetrator for their losses,” said Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican.
The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.
The bill responds to a 2014 Supreme Court 5-4 ruling in Paroline v. United States that said people convicted of viewing, making or distributing child pornography should be ordered to pay a nontrivial amount of restitution — but it should fit the scale of the offense....
The Paroline case stemmed from a lawsuit filed by a woman known as “Amy Unknown” against Doyle R. Paroline of Texas, who was convicted of having two images of her in his child pornography collection. When the 5th U.S. Circuit Court of Appeals ruled in Amy’s favor and ordered Paroline to pay $3.4 million in damages to her, Paroline asked the Supreme Court to review his case. Paroline’s court-appointed attorney said after they won last year that he would contest any restitution award against his client.
Amy, now an adult, was sexually assaulted by her uncle when she was about 9 years old. The uncle put pictures of her rape online, and those images have been shared by pedophiles worldwide. “Vicky” is the pseudonym of another victim, whose father raped her as a child and took “orders” from men to make videos of her being bound and sodomized.
I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders.
A few (of many) prior posts on Paroline and child porn restitution issues:
- SCOTUS splits the difference for child porn restitution awards in Paroline
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Explaining why I am rooting so hard for "Amy" in Paroline
- Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline
Wednesday, February 11, 2015
District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader
This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:
A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.
A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.
Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.
Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.
But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.
In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."
Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.
Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...
Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.
Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.
February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process
The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders. Here is how the majority opinion concludes:
We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution. Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution. We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.
Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:
When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....
The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.
Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.
Wednesday, January 21, 2015
Should a court hearing be required anytime a registered sex offender seeks entry to a public school?
The question in the title of this post is prompted by this notable article from Virginia headlined "ACLU questions new sex offender bill." Here are the details:
Their faces and address are already public, now one Virginia lawmaker wants registered sex offenders to face public hearings before going inside schools. To have access to Virginia public schools, House Bill 1366 would require violent sex offenders to pay for a newspaper ad publicizing a personal court hearing. It would run once a week for two weeks. Then anyone could attend the hearing and testify against them.
The bills author, Delegate Jeff Campbell, says it’s about safety, but the ACLU says it crosses the line of civil rights. “The public hearing is simply an invitation for an angry mob to gather at a school and get in the way of a parent’s right to be involved in the education of his or her child,” said ACLU of Virginia’s Executive Director Claire Gastanaga.
Gastanaga said there is no real proof that registries and restrictions like this keep kids safer. He said the most direct impact of the bill would be on parents with kids in school who want to go and meet with the kids’ teachers.
Delegate Campbell disagrees: “I disagree totally, what it does is it gives parents of the other children a say in who is around their children.”... “The public’s right to know who is around their children and to have a say in whether they agree in that or not trumps that individual’s right to free access to the school,” he said.
Currently, sex offenders must inform school superintendents before they go inside a Virginia school. Delegate Campbell said there was an incident last year in Wise County where a parent did that and got permission to attend sporting events, but then started showing up to school at other times. Parents got upset and that is the reason for his bill.
A subcommittee unanimously passed the bill on Monday, but there is no set date yet for it to go before the full committee.
Because Virginia's court system is surely already pretty crowded, the burden this bill will create for state court personnel strikes me as significant and notable. A bit of research revealed that there are about 20,000 registered sex offenders in Virginia. Even if only 10% of that group has good reason to go to a public school each year, the Virginia court system is going to have to handle 2000 more annual hearing to consider (and supervise?) any school visit.
Thursday, January 15, 2015
Fifth Circuit reverses computer filter lifetime supervised release condition for sex offender
A Fifth Circuit panel yesterday handed down an intriguing little ruling in US v. Fernandez, No. 14-30151 (5th Cir. Jan. 14, 2015) (available here), reversing a notable condition of supervised release. Here is how the ruling starts and ends:
In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”. At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child)....
In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet. Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.
Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”. In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.
January 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Monday, January 12, 2015
"Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"
A helpful reader alerted me to a notable article by Alexandra Stupple appearing in the Fall 2014 issue of National Lawyers Guild Review which has a title that also serves as the title of this post. The relative short article (which starts on page 8 of this pdf link) has the following introduction and conclusion:
Sex offenders have been subject to unprecedented restrictions and punishment. The government’s treatment of sex offenders is a clear example of the dangers of laws derived from and upheld because of the emotion of disgust. Disgust has led to a dehumanization of this category of people, which has led to a stripping of their constitutional rights. The law’s treatment of sex offenders is a clear example of why the law should eschew employing the emotion of disgust during all proceedings. In addition, the courts’, particularly the Supreme Court’s, treatment of the other branches’ actions regarding sex offenders is illustrative of why the law needs to insist upon empirical data in support of legislation and why the courts should not always defer to the other branches’ findings....
Today, all communities rightfully think of crimes such as child rape and molestation as the grave and heinous acts they are; however, a panic has ensued which has led to a squandering of public resources, the dehumanization of a swath of people, and the denigration of the Constitution. For the protection of everyone’s constitutional rights, a conscious commitment by all lawmakers to use empirical data in their fact-finding and decision-making is required, even if done while feeling and expressing emotions like anger and contempt. This may be the only way evidence-based practices and policies that actually protect the public from sexually violent persons will be born.
Thursday, January 08, 2015
Is California prepared to revoke parole for any sex offender with an iffy lie-detector test?
The question in the title of this post is prompted by this new AP story with the headline "California making sex offenders take lie-detector tests." Here are the basics:
For the first time, California is making paroled sex offenders take periodic lie-detector tests in response to several high-profile cases involving parolees who raped and killed.
State officials said this week that the stepped-up effort to prevent new sex crimes will help them better gauge which offenders are most dangerous and in need of increased supervision. All sex offender parolees also are required to participate in specially-designed treatment programs. Previously, only high-risk offenders had to undergo treatment.
California is not the first state to adopt the new policies. But with more than 6,000 sex offenders on parole, officials say it is by far the largest.
I have never closely followed the debates of the reliability of lie detector tests, but it appears that California has decided that they are reliable enough to become a mandatory part of parole requirements for sex offenders. That said, I wonder if these lie-detector test will be considered reliable enough (by parole officials? by courts?) to alone provide a sufficient basis for revoking a sex offender's parole if he sometimes fails to "pass the test with flying colors"?
Friday, January 02, 2015
Victims often left behind as states get tough on sex trafficking
This new AP article, headlined "Funding sometimes lags for sex-trafficking victims," highlights that legislators are often much better at slamming criminals than at supporting crime victims. Here are excerpts:
As awareness of America's sex-trafficking industry increases, state after state has enacted new laws to combat it. But while a few have backed those get-tough laws with significant funding to support trafficking victims, many have not.
In Michigan, for example, a cluster of legislators beamed with pride as Gov. Rick Snyder recently signed a package of 21 anti-trafficking bills. For a state ranked by advocacy groups as woefully behind in addressing the problem, the package was touted as a huge step forward, making Michigan, in Snyder's words, "one of the leading states in fighting this tragic crime." Yet the bills contained virtually no new funding, even though a high-powered state commission had reported a serious lack of support services and specialized housing for victims.
"For all the hoopla, it's blatantly not true that we're now at the forefront," said professor Bridgette Carr, a member of the commission and director of the Human Trafficking Clinic at the University of Michigan Law School. "For many of these victims, there's often no place to go."...
Without such services, advocates say, many victims are less useful as witnesses against their traffickers and more vulnerable to being forced or lured back to the sordid underworld that exploited them. "We are seeing some states stepping up, but the majority don't have anything specific in their budgets," said Britanny Vanderhoof, policy counsel for the Polaris Project. "There's an idea that once someone is rescued, they're fine," Vanderhoof said. "There's a disconnect with the level of trauma the victims have suffered and the incredible need for services at every level."
Arizona was among the latest states to board the bandwagon, enacting a bill in April that toughens sentences for traffickers of children and stipulates that being a trafficking victim is a defense in prostitution cases. As in Michigan, however, Arizona's bill did not include funding for victim services....
In Oklahoma, several experts met with a legislative panel in September to discuss the growth of sex trafficking, including a boom in the child sex trade linked to the convergence of major trucking routes near Oklahoma City. The legislators "were very receptive, and very shocked," said Kirsten Havig, a professor of social work at the University of Oklahoma-Tulsa who was among the speakers.
Yet Havig said the legislators, who have voted to punish traffickers more severely, balked at suggestions that the state spend more on victim services. "The second I start talking about resource allocation, it's, 'We can't do that,'" she said. For now, Havig said, Oklahoma lacks a residential facility suited to care for young sex-trafficking victims and has sent some youths to a facility in Houston. She hopes more state funding might come eventually if advocates can document how many victims need help, "but it's going to be a long haul."...
The Michigan commission's report noted that some states have appropriated significant funds for victim services. It cited a $2.8 million allocation in Minnesota, which is widely considered the national leader in the field.... Florida is another that state that has stepped up with significant funding for victim services — $3 million in the 2014-15 budget.
Yet Florida and Minnesota, with their seven-figure allocations, are exceptions; many states have invested little or nothing from their general funds for victim services. Several states have created funds to be financed with fines and forfeitures from traffickers, but advocacy groups say this method can be an unreliable.
Monday, December 29, 2014
Pennsylvania Supreme Court declares state's sex offender registration regulations violate juve offenders' due process rights
Via How Appealing, I see that the Supreme Court of Pennsylvania issued this majority opinion in In the Interest of J.B., J-44A-G-2014 (Pa. Dec. 29, 2014), declaring unconstitutional part of the state's sex offender registration laws (over a lone justice's dissenting opinion). Here is a portion from the start and end of the majority opinion:
In this case, we consider the constitutionality of provisions of the Sex Offender Registration and Notification Act (SORNA) as applied to juveniles. 42 Pa.C.S. §§ 9799.10-9799.41. Pursuant to 42 Pa.C.S. § 722(7), we review this case directly from the order of the York County Court of Common Pleas holding the statute unconstitutional as violative of the ex post facto clause, protections against cruel and unusual punishment, and due process rights through the use of an irrebuttable presumption. In the Interest of J.B. et al., No. CP-67-JV-726-2010 (CP York Nov. 1, 2013). After review, we affirm the determination that SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption....
Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption.
December 29, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack
Friday, December 19, 2014
"Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform"
The title of this post is the title of this timely paper authored by Allegra McLeod now appearing on SSRN. Here is the abstract:
The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms — from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child — the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity. All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions. These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the residential opportunities of persons presumed to be strangers to their victims.
But even as these measures render many subject to them homeless and unemployable, sexual abuse remains pervasive and significantly underreported in our schools, prisons, military, and between intimates in families. Thus, at once, the U.S. criminal regulatory regime constructs a peculiarly overbroad category of feared persons, compels a misguided approach to this population, and neglects the most prevalent forms of vulnerability to sexual predation and assault.
This essay argues that an alternative social institutional reform framework could address pervasive forms of sexual harm more meaningfully and with fewer problems than attend the prevailing criminal regulatory framework. This alternative framework would depart in large measure from purportedly preventive post-conviction criminal regulation, focusing instead on institutional, structural, and social dynamics that enable sexual violence and abuse.
Tuesday, December 16, 2014
Should problematic police be on a registry like sex offenders?
The provocative question in the title of this post is drawn from this provocative new commentary by Ed Krayewski at Reason titled "Time for a Police Offenders Registry." Here are excerpts:
There's a moral obligation to keep bad cops off the streets. A job with a police department is not a right and shouldn't be treated like one. Police unions that push for permissive rules that end up protecting bad cops pose a serious public safety threat. Nevertheless, dismantling them where they've taken root is a difficult prospect even in the long-term. There are other ways to keep bad cops off the streets. The federal government, and state governments, ought to create and encourage the use of a police offender registry list. Such a list would register individuals who while employed as law enforcement officers were found unfit for duty or faced serious disciplinary issues they may have resigned to avoid. Just as any other component of comprehensive police reform, this won't eliminate excessive police violence, but it's a start.
When actually identified, a surprising (or not) number of officers involved in controversial, high-profile use of force incidents have previously disciplinary history. Officer Daniel Pantaleo, the New York City cop who put Eric Garner in a fatal chokehold, had been previously accused, at least twice, of racially-motivated misconduct, including strip searching a man in the middle of the street and allegedly hitting his testicles. The police union in New York City is among the strongest in the country. When a rookie cop shot Akai Gurley in apparent panic last month, he didn't think twice to reportedly contact his union rep first. A man lay dying in a stairwell for no other reason that he startled a rookie, and the fact that the officer called his union representative before calling for assistance isn't shocking enough to lead to the officer's termination. Even if it were, it would still be impossible to terminate the officer immediately. While all this is happening, the state of New York is on the verge of placing even more of the disciplinary regime that applies to cops under the purview of the police unions.
But not everywhere is the situation as hopeless as in New York City. In other parts of the country, cops can get fired relatively more easily. But it doesn't stop them from finding jobs elsewhere. Richard Combs, who was the sheriff and only cop in Eutawville, South Carolina, is now facing a murder charge for shooting a resident after an argument at Town Hall, but Combs had been previously terminated from the county sheriff's office for unspecified "unsatisfactory performance." In Cleveland, Ohio, the cop who shot 12-year-old Tamir Rice, mistaking the boy's toy gun for a real one, had been previously found too emotionally unstable and unfit to carry a firearm for law enforcement. In Georgia, the cop who shot and killed 17-year-old Christopher Roupe after the teen opened the door to his home holding a Wii controller, had been previously fired for multiple disciplinary problems including shooting at an unarmed person....
This is just a sampling of stories that received enough local attention to gain some prominence. The situation is unconscionable. Police found unfit for duty in one jurisdiction shouldn't be employed in another. Cops who resign to avoid disciplinary charges shouldn't slither their way into another department. Cops who cost taxpayers millions in lawsuit settlements shouldn't be able to expose taxpayers in other places to the same risk....
State governments, and the federal government, can help. Sex offender registries, which in some jurisdictions can lead to 19-year-olds who receive sexts from their 17-year-old friends being branded sexual predators for life, are an odious thing that makes a mockery of due process and the idea of the penal system as rehabilitation. But for some of the same reasons they would work to police the privilege of employment in law enforcement. Constitutionally, the federal government could not mandate states use its police offender registry list or operate their own. Yet because many of the most troublesome police departments (those in big cities and those in the sticks) also rely most on federal assistance in one way or another, the feds could induce compliance by tying it to such assistance. The federal government has done this before, though usually to push states to impose certain laws on its residents, not to protect residents from abusive government employees. Such a list wouldn't be a comprehensive solution to excessive police violence, but it's an important part, one that could work to lower the number of bad cops operating on the streets and begin to rebuild trust between police and the communities they're supposed to serve.
Thursday, December 11, 2014
Notable new reporting on "tough-on-sex-offenders" rhetoric in recent judicial campaigns
The Marshall Project has this interesting new review of the most recent election cycle headlined "Trial By Cash: Judicial elections have gotten ugly. That’s bad news for defendants." Here is how it gets started:
In this year’s battle for the governorship of Arkansas, criminal justice reform was front and center. The Republican victor, Asa Hutchinson, a former federal prosecutor and DEA administrator, promised to combat prison overcrowding and called out “over-aggressive prosecutors who do not use common sense.” His Democratic challenger, Mike Ross, advocated lighter sentences for nonviolent offenders and more emphasis on rehabilitation. Neither candidate deployed the fear-mongering attack advertisements that have been a campaign-season staple for decades.
The race for an open seat on the Arkansas Supreme Court seat was another matter. One outside group's campaign ad praised Judge Robin Wynne of the state court of appeals for “refusing to allow technicalities to overturn convictions.” Another attacked his primary opponent, defense attorney Tim Cullen, by claiming he had called child pornography “a victimless crime.” Over eerie black-and-white footage of an empty playground, a woman’s voice responded to the statement (a distortion of Cullen's defense brief for a single case), intoning: “Tell that to the thousands of victims robbed of their childhood.” Wynne won.
If there is a growing bipartisan consensus that America locks up too many people for too long, there is little indication that anyone spending money on judicial elections shares the concern. The real scourge of American justice, these campaigns seem to suggest, is the rampant coddling of child molesters by judges up for re-election. “WHY SO LENIENT?” one ad demanded, attacking an incumbent state justice in Illinois. A similar commercial in North Carolina cut from an image of children pedaling tricycles to one of inmates pacing in their cells, and declared that a justice up for re-election “took the side of convicted molesters.”
Judicial races once were largely polite, low-budget affairs. But in the 1990s, business and political groups began to focus on these elections as an important (and often cost-effective) path to influencing policy and regulation. Since then, judicial campaigns have come to look more like any other political circus: rallies, political consultants, attack ads, and a flood of campaign cash. As of Nov. 5, election watchers at the Brennan Center, a liberal think tank that tracks legal issues, estimated that at least $13.8 million had been spent on TV advertising for state supreme court elections nationwide in 2014 — up from $12.2 million in the last midterm election in 2010.
The funders of these campaigns aren’t generally motivated by a desire to lock up criminals. In fact, some of this year’s big donors to organizations running tough-on-crime campaigns — including the conservative philanthropists Charles and David Koch — have simultaneously backed so-called “smart-on-crime” reform efforts aimed at shortening mandatory sentences and reducing prison populations. But fear works, election strategists believe. Why run on what really matters to your funders — like tort reform or deregulation — when you can run against paroling pedophiles?
Monday, December 08, 2014
Seventh Circuit affirms, over government complaints, way-below-guideline sentence for child porn producer
Regular readers are familiar with my tendency to lament the failure of circuit courts to scrutinize rigorously post-Booker claims by defendants that within or above-guideline sentences are unreasonably high. But a recent opinion from a Seventh Circuit panel in US v. Price, No. 12-1630 (7th Cir. Dec. 5, 2014) (available here), prompts me to note that there can be occassions when circuit courts seem a bit too willing to approve way-below-guideline sentences that the government asserts are unreasonably low. Here are the basics of the defendant's crime and sentencing in Price:
Jeffrey Price took numerous sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12. He put some of them on the Internet, and they have been implicated in at least 160 child-pornography investigations across the country. Price also kept a large stash of child pornography depicting other children, which he stored on two computers.
For this conduct Price was indicted on charges of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). A jury convicted him as charged.
Price is more dangerous than the average child-pornography offender because he also has a history of sexually abusing children. He molested R.P. on multiple occasions, and he sexually abused his sister on a regular basis when she was between the ages of 8 and 14. Despite this history, the district judge imposed a sentence well below the 40-year term recommended by the sentencing guidelines: 18 years on the production count and a concurrent 6-year term on the possession count.
Here is the heart of the Seventh Circuit panel's rejection of the government's appeal of this sentence (with my emphasis added):
The government argues in its cross-appeal that Price’s 18-year sentence — less than half the 40-year guidelines sentence — is substantively unreasonable....
The district judge did exactly what she was supposed to do under the advisory guidelines regime. She correctly calculated the guidelines sentence and exhaustively considered the § 3553(a) factors, giving particular emphasis to the aggravated facts of this case. But she also exercised her discretion to consider the scholarly and judicial criticism of the guidelines for child-pornography offenses, as she is permitted to do. She expressed substantial agreement with the Second Circuit’s opinion in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which explained that the guidelines in this area are not the product of the Sentencing Commission’s empirical expertise, but rather reflect directions from Congress to punish these crimes more harshly, id. at 182. Dorvee also notes that § 2G2.2, the guideline for possession of child pornography, calls for the application of multiple enhancements that apply in almost every case, making inadequate distinctions between the worst offenders and those who are less dangerous. Id. at 186–87.
The judge acknowledged that most of the criticism of the child-pornography guidelines is aimed at § 2G2.2, the guideline for the possession offense. But she concluded that § 2G2.1, the guideline for production of child pornography, “presents some of the same problems.” Both guidelines, she said, are vulnerable to the critique that they are not the product of the Sentencing Commission’s empirical study and independent policy judgment. She also noted that both guidelines call for enhancements that apply in nearly every case, exerting virtually automatic upward pressure on sentences and failing to separate less dangerous offenders from those who are more dangerous....
The government objects that Price’s 18-year sentence is only three years above the 15-year statutory minimum. See § 2251(e). Canvassing the aggravated facts of the case and Price’s history of sexually abusing children, the government argues that the sentence strays too far from the 40-year guidelines sentence and is simply too low to be considered substantively reasonable. “At the very least,” the government maintains, the sentences for the production and possession counts should be consecutive, as the guidelines recommend. See § 5G1.2(d).
Price’s crimes are indeed deplorable, and a sentence of 18 years obviously represents a substantial variance from the recommended 40-year term. But there is room for policy-based disagreement with the guidelines even to this extent. The government has not established that the sentence exceeds the boundaries of reasoned discretion. More specifically, the government has not established that an 18-year sentence for Price’s crimes — even in light of his contemptible history and unrepentant nature — is so low as to be substantively unreasonable.
I have been one of a number of academic critics of the severity of the federal child pornography sentencing guidelines, but that criticism has been largely based on the fact that these guidelines often call for decade-long sentences even for those offenders who did no more than download illegal pictures and thereafter showed remorse, pleaded guilty and sought treatment for their criminal activity. In contrast, the defendant in this Seventh Circuit case seemingly has a long history of child rape to go along with producing and possessing child pornography, and the Seventh Circuit recognizes he has both he has an "contemptible history and unrepentant nature."
Though perhaps 18-year in prison is still plenty long enough for this sexual predator (as the district judge apparently concluded), I would have liked to heard a lot more from the Seventh Circuit about how this way-below-guideline sentence appears reasonable in light of all of the 3553(a) factors. Especially for a defendant who has already shown himself to be a significant danger, "close enough for government work" is not all that satisfying an approach to reasonableness review in my view.
Sunday, November 30, 2014
Growing awareness of the limited efficacy of local sex offender residency restrictions
This new Wall Street Journal article highlights the new awareness of enduring problems with sex offender residency restrictions. The lengthy piece is headlined "Cities and Towns Scaling Back Limits on Sex Offenders: Officials Say Buffer Zones Don’t Prevent Repeat Offenses and Make Predators Harder to Track," and here are excerpts:
When Palm Beach County, Fla., was sued earlier this year over its housing restrictions for registered sex offenders, its attorneys took an unusual approach: They suggested the county relax its law.
The county’s commissioners — prompted largely by the lawsuit brought by a sex offender who claimed the limits rendered him homeless — voted in July to let such offenders legally live closer to schools, day-care centers and other places with concentrations of children. “We realized the law was costing the taxpayers money [for services for the homeless] and was causing more problems than it was solving,” said county attorney Denise Nieman.
In the mid-1990s, states and cities began barring sex offenders from living within certain distances of schools, playgrounds and parks. The rationale: to prevent the horrible crimes sometimes committed by offenders after their release. In October, for instance, officials charged sex offender Darren Deon Vann with murdering two women in Indiana. Mr. Vann, who is suspected of killing several others, pleaded not guilty.
Now, a growing number of communities are rejecting or scaling back such limits — out of concern that they don’t prevent repeat offenses, and, in some instances, may make sex offenders harder to track....
A 2013 Justice Department study that examined Michigan’s and Missouri’s statewide restrictions showed they “had little effect on recidivism.” Other studies have found the vast majority of sex-offense cases involving children are committed not by strangers but by family members or others with established connections to the victims, such as coaches or teachers.
About 30 states and thousands of cities and towns have laws restricting where sex offenders can live, while others are adding them. In March, a 1,000-foot buffer from parks took effect in San Antonio. In July, Milwaukee passed a law banning sex offenders from living within 2,000 feet of a variety of places where children gather....
Critics, however, say such moves do little more than score lawmakers political points and give an area’s residents a false sense of security. Some argue they can make communities less safe, by making it hard for offenders to find stable housing.
David Prater, district attorney of the county that encompasses Oklahoma City, said he and other state prosecutors have tried to get the state to relax its 2,000-foot buffer, to no avail. “No politician wants to be labeled the guy who lessens restrictions on sex offenders,” he said....
Some smaller towns are chucking restrictions, partly in the name of public safety. De Pere, Wis., a town of 23,000 south of Green Bay, tossed out its 500-foot buffer last year after reviewing data on its effectiveness, said several council members. The issue was reopened by some townspeople several months ago ,when a convicted sex offender moved across the street from a school for children with special needs. But the council didn’t budge. “You track where they live, you check in on them, but you let them live at home, where they’re comfortable and stable,” said Scott Crevier, a DePere city councilman. “I feel we’re actually safer than a lot of other towns in the state that have them.”
Sunday, November 23, 2014
Reviewing the potential and pitfalls in a notable problem-solving court in NYC
Today's New York Times has this terrific lengthy account of the work of a unique "problem-solving court" in New York. The piece is headlined "In a Queens Court, Women in Prostitution Cases Are Seen as Victims," and here are small excerpts from an article that merits a read in full:
The Human Trafficking Intervention Court in Queens, which is marking its 10th anniversary next month, ... serves as a model for a statewide 11-court program that began last year. The intention is to change the legal conversation around the multibillion-dollar sex trade by redefining the women in it as victims instead of criminals. Most are offered a deal: Take part in a set number of counseling sessions, usually five or six, and the charges will be dismissed and the record sealed.
After 13 months, the five New York City courts are still a work in progress, their success tracked more in individual stories than statistics. “This court is not devised to solve the problems of trafficking,” Judge Serita said of the program, “but to address one of the unfortunate byproducts, which is the arrest of these defendants on prostitution charges.”
All defendants in the specialized courts are presumed to be victims at risk, the first of many assumptions made, in part, because of the silence surrounding sex trafficking. That silence also makes it tougher to shift social mores. Not only do the police and the justice system still treat prostitution as a crime, but the women themselves, most undocumented, often don’t define themselves as having been trafficked — whether out of fear, shame or choice....
At no point in the proceedings does the judge, the prosecutor or the defense lawyer ask if the defendants have been trafficked; nor is there a quid pro quo to give up a trafficker. It is rare, but the hope is that the women, perhaps after working with counselors, will feel comfortable describing the conditions that led them to prostitution....
On Fridays, Judge Serita usually hears more than 40 cases in three hours. “How are you today?” she asks each of the women, inquiring whether they take English classes and praising their progress. Several defendants said they noticed less that she was an Asian woman and more that she had a warm demeanor. On other days, she presides over the drug treatment and mental health courts in Queens.
The trafficking court, she acknowledged, is a Catch-22: For people to feel less like criminals, they must first go through the criminal justice system. Leigh Latimer, the Legal Aid Society lawyer assigned to Judge Serita’s court, agreed. “There is a somewhat more recent view that clients are potentially victims, but we’re still arresting them at a very rapid pace,” she said. “We’re trying to solve their problems through being arrested, which is not an affirming process.”...
On several Fridays, nearly a dozen women said during interviews in Mandarin that they did not feel like trafficking victims, but victims of the police. The women all spoke on the condition of anonymity because their cases were still pending. “My name has been tarnished,” said one woman, who was upset that her case was “lumped with all those others.” She denied performing a sex act, but the police report contradicted that, Ms. Affronti said.
Another woman explained that she was arrested at 4 a.m. on her sixth day of work. She and her sister, who quit after the second day because she sensed “something was not right,” owed more than $80,000 to friends and family members who raised the money for them to come to the United States from Fuzhou. That type of pressure to pay back smuggling agents — often with interest as high as 12 percent — is considered “debt bondage.” It is a more subtle condition of human trafficking, but is pervasive in New York’s Asian communities, lawyers say.
November 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, November 18, 2014
Ninth Circuit upholds injunction, on First Amendment grounds, blocking California law requiring sex offenders to report report online activities
As reported in this Bloomberg story, "California can’t enforce a law to combat sex trafficking because it tramples on free speech rights of sex offenders by requiring them to report online activities, such as their Twitter, e-mail and chatroom accounts, a U.S. appeals court ruled." Here are more of the ruling's basics via the press:
The San Francisco-based court today upheld a judge’s decision to block enforcement of a voter-approved law that was backed by former Facebook Inc. (FB) executive Chris Kelly and garnered support from more than 80 percent of California voters in 2012.
The measure, known as Proposition 35, isn’t clear about what accounts or Internet service providers offenders are required to report and targets online speech that could include blogging about politics and posting comments on news articles, the appeals court’s three-judge panel said today.
The law also harms sex offenders’ ability to engage in anonymous speech because it allegedly allows police to disclose their online identities to the public, the court said. Failure to report on Internet activity can lead to criminal sanctions.
A requirement that registered sex-offenders notify police within 24 hours of using a new Internet identity chills activity protected by the U.S. Constitution’s First Amendment, U.S. Circuit Judge Jay S. Bybee wrote in the unanimous ruling.
The ruling in Doe v. Harris, No. 13-15263 (9th Cir. Nov. 18, 2014) (available here), officially gets started this way:
California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation (“CASE”) Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person.” Id. § 290.015(a)(4)–(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider (“ISP”). Id. § 290.014(b).
Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.
Thursday, November 06, 2014
New California report finds many challenges in sex offender monitoring
As reported in this local piece from California, "two-thirds of parole agents who monitor sex offenders juggle caseloads that exceed department standards, a state corrections review reported Wednesday in response to an Orange County murder case." Here is more about the report's findings:
Agents are supposed to supervise between 20 and 40 parolees, depending on how many are high-risk offenders. But more often than not, the state Office of the Inspector General found, agents are overburdened. At 14 of the state’s 37 units responsible for supervising paroled sex offenders, all agents had bigger caseloads than department policies allow. The inspector general surveyed the units’ caseloads in August.
The report also criticized the effectiveness of GPS monitoring and housing restrictions enacted through Jessica’s Law, a 2006 ballot measure. The inspector general tied the restrictions to a spike in homelessness and strained resources....
The state Sex Offender Management Board recommended four years ago that agents supervise no more than 20 paroled sex offenders. But the inspector general said corrections officials haven’t adopted the lower threshold.
The inspector general report was requested by state Sen. Darrell Steinberg after the April arrests of Steven Gordon and Franc Cano, two transient sex offenders registered to live in Anaheim. Steinberg was head of the Senate at the time and chairman of its rules committee....
Steinberg didn’t request that the inspector general probe how Gordon and Cano were supervised by parole agents. Previously, the office did just that after the high-profile convictions of sex offenders Phillip Garrido and John Gardner. This time, Steinberg focused on broader questions about the impact of GPS monitoring and housing restrictions.
The Department of Corrections and Rehabilitation estimates that it spent about $7.9 million to monitor more than 6,000 paroled sex offenders with GPS devices in the last fiscal year, a decline from $12.4 million four years earlier.
The detailed 80+-page report from the California Office of Inspector General, which is titled "Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions," is available at this link.
November 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack
Sunday, November 02, 2014
Following-up in Maryland after court rules some sex offenders not subject to new registration requirements
This lengthy new Baltimore Sun article, headlined "Court ruling upends Maryland's sex offender registry," provides an interesting follow-up a few months after a state court ruling disrupted the state's sex offender registry. Here are excerpts:
The memory of the break-in still stirs terror three decades later: The Rockville woman was ordered out of bed at knifepoint by a teenage burglar, who commanded her to stare out a window as he started to take off her robe. Before anything else could happen, the woman's husband, who had been tied up in the bathroom, broke his bonds and violently tackled the teen, leaving both of them with stab wounds. That ended Robin Lippold's 1981 summer crime spree, which included other burglaries and a rape.
But it did not eliminate the woman's fear, which lingered long after the pre-dawn attack. That dark emotion surfaced again last week, when she learned that Lippold had been removed from Maryland's sex offender registry, a searchable public database that lists each person's residence and place of employment.
The 50-year-old Lippold is among 1,155 sex offenders who have been removed from the registry since February, according to data obtained by The Baltimore Sun through a public records request. Almost 400 of them are rapists, including a man who raped a blind teenage girl in a mall parking lot and a man who raped a 67-year-old woman who was walking her dog.
Most have been stripped out because of a decision by Maryland's highest court. That ruling handed a victory to advocates who said the registries were unfairly punitive, but has troubled legislators and upset victims.... The Court of Appeals ruling — that laws governing the registry subjected some offenders to a form of retroactive punishment — has radically altered Maryland's system of tracking people convicted of sex crimes.
Experts say there's little evidence that the registries help keep the public safe, and can unfairly punish offenders. Some judges around the United States have agreed that the registries amount to unconstitutional punishment in some cases. In Maryland, a prominent defense lawyer is continuing to fight in the courts, seeking to get more names removed from a list that she says stigmatizes too many people.
But the lists are popular among legislators, who see them as an option to keep the public safe and give people a reassuring way of looking up who among their neighbors or colleagues has been convicted of sex offenses. Sen. James Brochin, a Baltimore County Democrat, said of the Maryland appeals court judges, "What they've done is sickening … it's mind-boggling. The court's shown a total disregard for the community."...
While the registries have many supporters, researchers have found little evidence that they reduce the rates at which sex offenders commit new crimes. "Those policies were based on myths: Once an offender, always an offender," said Elizabeth J. Letourneau, a sex crime researcher at the Johns Hopkins University. "They are unlikely to be harming community safety by removing people like that from a registry."
Lisae C. Jordan, an advocate for victims of sex crimes, said accurately measuring recidivism rates can be difficult because many offenses go unreported. But she also noted that registries have never been a way to stop all offenses because most would-be rapists have never been convicted.
What the studies do show, experts say, is that having to register makes it harder for ex-convicts to successfully find work and have productive lives. In postings on an Internet forum critical of the Maryland registry, offenders have described their struggle getting work..... In other cases, communities have turned to vigilante justice. Last week, a Baltimore woman was sent to prison for six years for her part in the beating death of a sex offender.
Now Maryland's registry is being trimmed because the Court of Appeals ruled in 2013 that people who committed crimes before it was created had been subjected to fresh punishment in violation of the Maryland Declaration of Rights.... The Court of Appeals was fragmented but in a patchwork of opinions, ultimately sided with Haines. Applying the laws retroactively violated the "fundamental fairness and the right to fair warning" about the consequences of a crime guaranteed by the state constitution, Judge Clayton Greene Jr. wrote.
Courts across the country have split on whether states should be allowed to stock their registries with people who committed crimes long ago....
Nancy S. Forster, a Baltimore attorney representing a number of people challenging Maryland's registry laws, said she has other cases in the works that could lead to more offenders being taken off the list. The attorney general's office is examining the cases and will fight in court when it sees the opportunity.
And some lawmakers said they plan to craft legislation that might soften the impact of the Court of Appeals ruling. Possible options include creating a registry that's only available to law enforcement or using a risk assessment system to flag the most dangerous offenders....
Now that the judges have had their say, Sen. Nancy Jacobs said, the debate now should focus on the victims of sex crimes. Jacobs, a Cecil and Harford County Republican, pushed hard to toughen sex crime laws in 2009 and 2010, but is leaving the Senate. "We need to care more about the victims than about the people who sexually assaulted these children," she said. "They need help."
Saturday, October 25, 2014
"Jury Says Castrated Sex Offender Should Be Freed"
The title of this post is the headline of this notable AP story out of California. Here are the intriguing details:
A Southern California jury on Friday found that a castrated sex offender who preyed on young girls should no longer be considered a sexually violent predator and is eligible for release. Jurors in Orange County determined that Kevin Reilly, 53, does not need to remain locked up at a state mental hospital. He could be released as early as Friday, his lawyer said, but online jail records show he remained in custody as of mid-afternoon.
"There was simply no evidence he was likely to reoffend," said Holly Galloway, deputy public defender. "What the jury did was amazing because they followed the law and that's a hard thing to do with someone with his history, but it's the right thing to do."
Reilly served time in prison for sex offenses committed in the 1980s and 1990s and has been locked up in a state mental hospital since 2000 under a California law that enables authorities to forcibly commit sex offenders they believe will reoffend. He paid to be surgically castrated in 2003 to help control his pedophilia and completed a treatment program for sex offenders in 2010. State-appointed evaluators found he was not likely to reoffend, Galloway said, adding that Reilly also completed a bachelor's degree and master's degree.
Prosecutors argued that Reilly is still dangerous and that the effects of his castration, which aimed eliminate his sex drive, can be mitigated through testosterone injections. Michael Carroll, deputy district attorney, said Reilly did not confess to molesting one of his victims until three years ago and there were conflicting reports about what he told his evaluators and the court.
"I don't think he was honest during his treatment," Carroll said. "I think he continued to lie and attempted to manipulate because his ultimate purpose, I think, is to get out of the hospital, not necessarily to prevent creating any future victims." Reilly served time for committing lewd acts on four young girls over more than a decade, and later conceded he had abused at least three others, Carroll said. Most of the girls were between 4 and 8 years old.
He is required to register as a sex offender once he is released, and is planning to move to Utah, where he will participate in an outpatient treatment program for sex offenders and look for an accounting job, Carroll said.
Stories like this one provide support for my general view that juries, serving often as the conscience of a community, can and should be more often trusted to make difficult sentencing-type determinations and should not be relegated only to serving as a limited (and infrequently used) fact-finder in the operation of modern criminal justice systems.
October 25, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack
Friday, October 24, 2014
ACLU flies suit against Florida county's latest sex offender residency restrictions
As reported in this local article, headlined "ACLU sues over rule on where sex offenders can live in Miami-Dade," a notable new lawsuit has been brought against a community that has a long sad history of difficulties with sex offender residency realities. Here are the details:
For five years, Miami-Dade County’s sex offender law has sparked national headlines, as homeless parolees have been forced to move from street corners to parking lots because of a law that prohibits them from squatting near public spaces where children gather. Now, the dozens of homeless sex offenders — shuffled from under the Julia Tuttle Causeway to a Shorecrest street corner and finally to a parking lot near train tracks and warehouses just outside Hialeah — have a voice arguing on their behalf.
On Thursday, the national chapter of the American Civil Liberties Union filed a lawsuit in federal court reasoning that Miami-Dade County and the state Department of Corrections have violated the offenders’ basic rights to personal safety, and to maintain a home. The suit doesn’t name the ACLU’s clients, referring to them as John Doe 1, 2 and 3.
“It undermines public safety. It’s harder to find a job and maintain treatment. Housing stability is just as critical to these folks as to anyone else,” said Brandon Buskey, staff attorney for the Criminal Law Reform Project at the ACLU in New York City.
But the man behind the controversial county ordinance said no one has the right to demand where they live. Ron Book, the powerhouse state lobbyist and chair of the Miami-Dade Homeless Trust, said the courts have upheld the residency restrictions, and the ACLU is simply regurgitating an issue that’s been dealt with. “The U.S. Supreme Court has said they’re entitled to live places that don’t endanger the health, safety and welfare of law-abiding citizens of the U.S. But they’re entitled to take their $350 to the courthouse,” Book said of the ACLU. “I don’t support those with sexual deviant behavior living in close proximity to where kids are.”
The 22-page lawsuit, filed in the U.S. Court’s Southern District, calls the county ordinance vague, says it doesn’t allow sex offenders their due process, and adds that it leaves them in a vulnerable position and unsafe. “These individuals, who frequently subsist on meager incomes after being released from prison, are unable to locate stable, affordable housing in Miami-Dade County. This transience is primarily because the ordinance arbitrarily renders off-limits broad swaths of housing,” according to the complaint....
At the center of the battle between the ACLU and Miami-Dade is a law approved in 2010 called the Lauren Book Safety Ordinance. Lauren Book, Ron Book’s daughter, was sexually molested by a trusted nanny for six years, starting when she was 11. Lauren Book-Lim, now married and 29, is an advocate for the sexually abused. The 2010 ordinance was created after nearly 100 offenders were sent scrambling from squalid living conditions under the Julia Tuttle Causeway. The new law doesn’t allow offenders on parole within 2,500 feet of schools, parks, bus stops, or any other place children might congregate. Before the law, Miami-Dade followed a less restrictive state-created 1,000-foot law.
But the county ordinance had unintended consequences: It left sex offenders with few living options and almost immediately became a hot-button issue around the nation, even the world. There’s even a Wikipedia page about it.
Miami-Dade’s sexual offender homelessness issue first came to light in late 2009, when images of 92 homeless sex offenders living in plywood and cardboard sleeping quarters tucked under the Julia Tuttle Causeway at the height of the recession were splashed across TV. At the time, the county was still following the 1,000-foot state law.
Though the homeless offenders had been living there for about three years, embarrassed officials put up “No Trespassing” signs under one of the main causeways linking Miami and Miami Beach, and tore down the rickety structures. A promise to spend $1 million to find housing for the offenders didn’t solve the problem. The new, tougher, 2,500-foot ordinance was created mainly because of the Julia Tuttle fiasco....
Howard Simon, executive director of the Florida chapter of the ACLU said no entity should be allowed to strip anyone of their basic rights and force them into “dangerous and squalid conditions.”
“This is the second chapter of the same sad story,” he said. “The county provoked international outrage when it forced people to live under the Julia Tuttle bridge. Now it’s forcing people to live alongside railroad tracks.”
More details about the lawsuit and links to the filings are available at this ACLU page.
October 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack
Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion
As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:
In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.
Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”
The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.
Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.
A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”
The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....
Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....
Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”
Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.
The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.
October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
Wednesday, October 22, 2014
Seventh Circuit affirms stat-max 90-year sentence for child molester despite ugly childhood
An interesting Seventh Circuit sentencing opinion yesterday in US v. Horton, No. 14-1559 (7th Cir. 2014) (available here), highlights that a horrible criminal offense can (and often likely) will lead to an extremely long prison sentence even when a defendant can presenting evidence of an unusual (and seemingly mitigating) personal history. Here are the basics of the defendant's crime and his personal history as discussed in the Horton opinion:
During a 9-month period while Horton was employed at Three Tigers Karate in Belleville, Illinois, Horton created 37 videos depicting himself engaging in sexually explicit conduct with three of his male students (ages 6,7,and 10),and another video showing himself trying to convince another student (age 7) to display his genitals. Horton created the videos in various places: his home, the karate studio, a public park, and the San Antonio home of one the victims....
During his formative years, Horton recounted to [psychologist] Dr. Cueno, his mother worked as a stripper and escort and would leave pornographic magazines, sex toys, and drug paraphernalia strewn around the house. His father was as an alcoholic and drug abuser. Horton watched a XX-rated movie when he was seven and acted out what he saw in the movie by having oral sex with other children. In first grade he was forced to perform oral sex on a classmate, and he began having consensual intercourse when he was 12. According to Dr. Cueno, the “roots for [Horton’s] difficulties can be traced back to a childhood where he was sexualized at an early age, had little stability, and was raised by a drug abusing, stripper/escort mother who provided him with little, if any stability.”
And here is how the Horton court explains its conclusion that a statutory maximum sentence of 90 years in prison was not substantively unreasonable in light of these facts and factors:
Horton has not demonstrated that his de facto life sentence is unreasonable. Although a sentence that is effectively for life “is not to be ordered lightly,” we have upheld such sentences where the sentencing judge recognized “the likelihood of a defendant’s death in prison, but concluded that other factors warranted the particular sentence.” United States v. Vallar, 635 F.3d271,280 (7th Cir. 2011).... Here,the district court appropriately weighed Horton’s age and difficult upbringing,see 18 U.S.C. § 3553(a)(1), against the “extremely serious nature of this crime” and the vulnerability of the victims, see id. § 3553(a)(1), (a)(2)(A); New York v. Ferber, 458 U.S. 747, 758–60 & n.9–10 (1982), the need to protect the public from a dangerous child molester, see 18 U.S.C. § 3553(a)(2)(A),(C), and the availability of sex-offender treatment in prison, see id. § 3553(a)(2)(D). And though Horton would have preferred the district court to have given more weight to his dysfunctional childhood, the court had the discretion to assign it less weight than the other § 3553(a) factors.