Wednesday, May 21, 2014
Should I be hopeful Amy can now recover more restitution after major child porn bust in NYC?
The question in the title of this post is my (perhaps weak) effort to put some kind of positive spin on this depressing new story from CNN headlined "Cop, rabbi, scoutmaster among arrests in child porn bust." Here are just some of the ugly basics:
They are people children are supposed to trust: A New York Police Department officer, a Fire Department of New York paramedic, a rabbi and a scoutmaster were among more than 70 people arrested in a major child porn bust, authorities said Wednesday.
One of those arrested -- a supervisor with the Transportation Security Administration -- allegedly traveled to the Dominican Republic to have sex with children, a law enforcement official said. He allegedly made more than 50 trips there.
The investigation, involving agents from U.S. Immigration and Customs Enforcement as well as New York authorities, began as part of an undercover operation into peer-to-peer networks, authorities told reporters Wednesday. The suspects, who do not appear to know one another, were able to search files using graphic terms and descriptions. Software continuously scanned files and automatically uploaded images to personal computers, laptops and mobile phones.
Special Agent in Charge James Hayes, head of Homeland Security Investigations New York, called the arrests the largest enforcement operation in New York "targeting predators (who) possess, produce or distribute sexually explicit images of children." The activity, he said, has "reached epidemic proportions."
"The backgrounds of many of the individuals ... is shocking," Hayes said. "These defendants come from all walks of life ... This operation puts the lie to the classic stereotypical profile that child predators are nothing more than unemployed drifters. Many of the defendants are, in fact, well-educated and successful in private and professional lives. They work as registered nurses, paramedics, caretakers for mentally ill adults, computer programers and architects."
The continuing operation resulted in 71 arrests -- including one woman -- and the seizure of nearly 600 devices, including desktop and laptop computers, tablets, smartphones and thumb drives with tens of thousands of sexually explicit images and videos of children, Hayes said.
The pornographic images of children were shared at no charge, authorities said. About a third of the suspects remain in custody, and the others were released on bonds ranging from $30,000 to $500,000. Hayes said the January arrest of Brian Fanelli, chief of the Mount Pleasant Police Department in upstate Valhalla, New York, on child pornography violations helped lead to the other defendants.
A few months ago, I asked in the title of this post a serious question that comes to mind now again: "Just how many prominent, successful men are child porn fiends?". As the title of this post suggests, following the Supreme Court's messy "split-the-difference" approach to child porn restitution in its recent Paroline ruling (basis here), I am hoping a silver lining to this dark cloud might be that CP crimes committed too often by persons "well-educated and successful in private and professional lives" might now mean more restitution getting paid to the unfortunate victims of these crimes.
A few (of many) prior posts on Paroline and child porn issues:
- SCOTUS splits the difference for child porn restitution awards in Paroline
- Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- Explaining why I am rooting so hard for "Amy" in Paroline
- Just how many prominent, successful men are child porn fiends?
May 21, 2014 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (11) | TrackBack
Friday, May 16, 2014
Record-long sentence?: 81-year-old child molester gets 935- to 1,870-year prison sentence
As reported in this local article, in order to "serve as a warning to other child predators," Pennsylvania Judge Albert Cepparulo "has imposed a 935- to 1,870-year prison sentence to an 81-year-old man who sexually abused a girl for four years and videotaped nearly every assault." Here is what led the judge to require an elderly offender to remain imprisoned until at least the year 2949:
Thomas Holliday was convicted in January of 234 crimes, including hundreds of counts related to creating and possessing child pornography. Prosecutors said Holliday began abusing the girl in 2009, when she was 14.
Holliday was a family friend who offered to help the girl's mother financially and the girl was sent to live with him. He denied the charges, telling the judge that he and the teen were in love.
Thursday, May 15, 2014
Intriguing Second Circuit opinion concerning which priors trigger 10-year child porn mandatory
Today in US v. Lockhart, No. 13-602 (2d Cir. May 15, 2014) (available here), a Second Circuit panel resolves a notable statutory question concerning what prior sex offenses serve as predicates triggering a 10-year mandatory minimum prison term for a child porn possession offense. Here is how the opinion in Lockhart starts along with a later paragraph highlighting why this issue could perhaps get Supreme Court attention:
In this case, we must decide whether a sentencing provision that provides for a ten‐year mandatory minimum term of imprisonment if a defendant was previously convicted “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” 18 U.S.C. § 2252(b)(2), requires that an “aggravated sexual abuse” or “sexual abuse” conviction involve a minor or ward, or whether only “abusive sexual conduct” is modified by the phrase “involving a minor or ward,” such that a sexual abuse conviction involving an adult victim constitutes a predicate offense. We conclude that the statutory text and structure indicate that the latter reading is correct and therefore affirm the district court’s imposition of a ten‐year sentence on Defendant‐Appellant Avondale Lockhart....
Looking at § 2252(b)(2) as a whole, we find, as a number of other circuits have explained, that “it would be unreasonable to conclude that Congress intended to impose the enhancement on defendants convicted under federal law, but not on defendants convicted for the same conduct under state law.” United States v. Spence, 661 F.3d 194, 197 (4th Cir. 2011).... This reasoning compels us to conclude that “involving a minor or ward” modifies only prior state convictions for “abusive sexual conduct,” not those for “sexual abuse” or “aggravated sexual abuse,” each of which would constitute a predicate federal offense if committed against an adult or a child.
We acknowledge that the Sixth, Eighth and Tenth Circuits have reached the opposite conclusion, namely, that the phrase “involving a minor or ward” modifies all three categories of state sexual abuse crimes. However, the Eighth and Tenth Circuits have drawn this conclusion without elaborating on their reasoning. Indeed, these circuits appear merely to have assumed that a prior state‐law sexual abuse conviction requires a minor victim for purposes of the sentencing enhancement, an assumption that made little difference in those cases since the predicate violations at issue involved minor victims.... The Sixth Circuit has reached this conclusion most explicitly, although it did so because it found that another panel of that court had “already considered the proper construction of the statutory language at issue,” and that that prior decision bound the current panel, even though the earlier opinion did not engage in any express analysis of the statutory language. United States v. Mateen, 739 F.3d 300, 304–05 (6th Cir. 2014) (citing United States v. Gardner, 649 F.3d 437 (6th Cir. 2011)), reh’g en banc granted, opinion vacated (Apr. 9, 2014). We are not compelled to follow such unexplored assumptions in coming to our conclusion here.
Thursday, May 08, 2014
Bipartisan statutory fix after SCOTUS Paroline mess for child porn restitution introduced in Congress
This new Washington Times article, headlined "Bill would address Supreme Court ruling on porn victims; Effort seeks 'full restitution' from porn viewers," details that a legislative fix to the Supreme Court's ruling last month in Paroline is in the works. Here are the details:
Reacting to a recent Supreme Court decision, a bipartisan group of senators introduced a bill that, in certain cases, would force people convicted of possessing child pornography to pay at least $25,000 in restitution to the victim.
The measure would rewrite a section of the Violence Against Women Act and make it easier for victims of child pornography to be granted “full restitution” from felons who have made, distributed or viewed images of their sexual abuse online.
The push follows an April 23 Supreme Court ruling in Paroline v. United States that, in essence, told federal courts to figure out how to assign a nontrivial amount of restitution to child-pornography victims. Currently, with little guidance from the law, courts have set awards ranging from zero to millions of dollars in restitution for victims of child pornography from those who collect and pass along their images.
Child pornography “is one of the most vicious crimes, one of the most evil crimes, in our society,” Sen. Orrin Hatch, Utah Republican, said on the Senate floor Wednesday to introduce the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014. “Victims of child pornography suffer a unique kind of harm and deserve a unique restitution process,” said Mr. Hatch, who sponsored the legislation with Sen. Charles E. Schumer, New York Democrat, and six other colleagues.
Under the bill, the law and its penalties are clarified, including minimum payments of $250,000 for production of child pornography, $150,000 for distribution of child pornography and $25,000 for possession of child pornography.
“The tragic effect of the Supreme Court’s decision in Paroline was this: The more widely viewed the pornographic image of a victim, and the more offenders there are, the more difficult it is for the victim to recover for her anguish and her damages,” said Mr. Schumer. There “should not be safety in numbers,” he added.
The restitution bill would require a court to consider the “total harm” to the victim, including harm from individuals who have not been identified; mandates “real and timely” restitution; and allows defendants to “spread the restitution costs” among themselves, Mr. Hatch and Mr. Schumer said.
Fascinating discussion of "mom movement" to reform sex offender registration laws
NBC News has this lengthy new piece about efforts to reform sex offender registration laws under the headline "My Son, the Sex Offender: One Mother's Mission to Fight the Law." The full piece is worthy of a full read, and here is how it gets started:
In the run up to Halloween one year, Sharie Keil saw something that really made her jump: Missouri governor Jay Nixon, then the attorney general. He was on television to announce that registered sex offenders were hereby banned from participating in her favorite holiday. On threat of a year in jail, they had to stay inside and display a sign saying they had no candy. The goal was “to protect our children,” as Nixon put it, but Keil heard only a peal of political hysteria.
She is not a sex offender nor, at 63, a new-age apologist for pedophiles or predators. She is a mother, however, and in 1998 her 17-year-old son had sex with a pre-teen girl at a party. He was convicted of aggravated sexual abuse, which got him six months in county jail and a lifetime of mandatory registration as a sex offender. Ten years later, after the Halloween law, Keil felt shocked into action.
”As my husband says, I decided to go on the war path,” she remembers. Today, she’s at the forefront of a growing fight against sex offender registries, a shame-free alliance of offenders and their families, supported by researchers and some advocates who helped pass stringent anti-abuse laws in the first place. They’re organized (albeit loosely) under Reform Sex Offender Laws, a five-year-old lobby that claims 38 state affiliates and a steady patter of legal and legislative victories.
Most of their progress, however, has been limited to a slice of the registry: juvenile offenders. That would remove Keil’s son, but this former soccer mom and chapter head of the League of Women Voters wants to abolish the public registry altogether. She funds a powerful RSOL affiliate, Missouri Citizens for Reform, which has helped push sweeping changes through the Missouri House four years in a row, only to see the effort smothered in the Senate or, last summer, stabbed by a governor’s veto.
“Changing the registry would provide relief for tens of thousands of Missourians,” Keil says. “Since there are nearly 800,000 people on the registry nationally, millions of lives would change for the better.”
As reckless as Keil’s ideas may sound, she and her intellectual allies—among them Nicole Pittman, an attorney who slammed registries in a Human Rights Watch report last year—are fervently opposed to sexual abuse and believe in jail time for law breakers. However, they also hope to realign the law with second-chance ideals and new research that shows rehabilitation is possible, even for America’s last pariahs.
If they succeed, Keil believes, public safety will actually improve. As the registries shrink or disappear, law enforcement will be freed to focus on crime prevention. If the movement fails, she warns, public safety could suffer. Truly dangerous people will be lost in the thousands that police must monitor, while relatively harmless offenders break bad in a system that gives them no hope for a normal future.
Monday, May 05, 2014
Detailing notable legal challenge to juve sex offender registration requirements
The AP has this notable new article headlined simply "Juvenile Sex-offender Registries are Challenged." Here are excerpts:
By the time he was arrested for sexually assaulting two siblings, 15-year-old J.B. had been molested by his alcoholic father and subjected to 25 moves among his birth, foster and adoptive families. He had also suffered from untreated attention deficit hyperactivity disorder and depression.
Though tried in juvenile court, with its focus on privacy and rehabilitation, he was later required by a 2012 Pennsylvania law to register as a sex offender — branded a long-term danger to society, with no way off the list for at least 25 years. Juvenile law advocates campaigning against such automatic registries argue that they undermine the rehabilitative purpose of juvenile law and wrongly force judges to treat offenders the same, no matter their circumstances. In Pennsylvania, local judges increasingly agree with them.
Late last year, a central Pennsylvania judge weighing the cases of J.B., as he is known in court documents, and six others found the registration law violated the state constitution. Now the issue is headed to the state high court.... In the Pennsylvania Supreme Court on Tuesday, juvenile advocates will argue that the registration requirement amounts to cruel and unusual punishment and creates roadblocks for young people trying to rebuild their lives.
Across the country, a growing number of juvenile judges, advocates and policymakers are questioning the effect of the registration mandate Congress passed under the 2006 Adam Walsh Act, named after the Florida boy abducted and killed in 1981. States that don't comply risk losing millions in federal law enforcement grants. A few states, including Texas and California, decided it was cheaper to opt out of the Walsh Act, and the Ohio Supreme Court has since found the juvenile registry unconstitutional....
Prosecutors in York County defend the law. "The standards are not meant to be easy," said Tim Barker, the chief deputy district attorney. "They were created with an eye toward the protection of the public." Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorneys Association, said the law was forced on states by the funding tie-in. But he said he believes the mandate is appropriate in the most serious cases, including one in his county in which a teen raised amid violent pornography assaulted a 3-year-old neighbor....
The Philadelphia-based Juvenile Law Center, which successfully argued J.B.'s case, believes judges need the authority to fashion what they deem appropriate placement and treatment plans. "That's very separate and distinct from saying we're going to put a scarlet `A' on these kids for the rest of their lives," said Marsha Levick, the center's chief counsel.
Recent reports by Human Rights Watch and the Illinois Juvenile Justice Commission — both critical of juvenile registries — found that children lash out sexually for different reasons than adults and are less likely to reoffend. One survey involving about 11,000 young offenders put the recidivism rate at 7 percent, compared with 13 percent for adult sex offenders, according to the Human Rights Watch report.
Nearly all other states compile some sort of registry, although 11 states do so only if the juveniles are tried in adult court. Pennsylvania's law applies to teens 14 to 17 accused of rape, aggravated sexual assault and other serious sex crimes. In practice, though, lesser pleas are often being negotiated to avoid triggering the reporting mandate, prosecutors and defense attorneys said.
Some related posts:
- State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional
- Ohio Supreme Court finds required juve sex offender registration unconstitutional on numerous grounds
- New big Human Rights Watch report assails placing juve sex offenders on registries
- Missouri Gov vetoes bill to take juve sex offenders off state registry
- Illinois commission advocates against putting all juve sex offenders on registry
Friday, May 02, 2014
"Kids, Cops, and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis"
The title of this post is the title of this interesting paper newly posted on SSRN and authored by David Singleton. Here is the abstract:
Sex offenders are today’s pariahs — despised by all, embraced by none. During the past twenty years, society’s dislike and fear of sex offenders has resulted in a flood of legislation designed to protect communities from them. These laws include residency restrictions, which bar convicted sex offenders from living near places where children are expected to be found. Given this climate, do lawyers who for sex offenders have any hope of winning justice for their clients?
In 2005, the Ohio Justice & Policy Center (“OJPC”) began a three year-advocacy campaign against Ohio’s residency restrictions. At first OJPC lost badly — in both the courts of law and public opinion. But after losing the initial legal challenge, OJPC transformed its seemingly lost cause into a winning effort. It did so by borrowing an idea from Professor Derrick A. Bell.
Professor Bell is famous, among other things, for his interest-convergence thesis. According to Bell, blacks achieve racial equality only when such progress it is in the interests of whites. The classic example of Bell’s theory is his explanation of the Supreme Court’s decision in Brown v. Board of Education. According to Bell, the Court desegregated public schools not for moral reasons but because doing so would improve America’s credibility on racial issues during the Cold War.
OJPC eventually prevailed in its challenges to residency restrictions because it aligned the interests of sex offenders with society’s interests in protecting children from sexual abuse. Not only did OJPC win two important legal challenges but it also transformed the local media narrative about residency restrictions.
Kids, Cops and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis begins by telling the story of OJPC’s advocacy — both before and after employing an interest-convergence strategy. The article then poses and answers three questions: (1) whether it is appropriate to attach the “interest-convergence” label to OJPC’s sex offender advocacy given that Bell’s thesis is “historically descriptive rather than a recommendation for future-oriented strategies,” according to Professor Stephen Feldman, a leading scholar; (2) whether interest-convergence theory explains the victories OJPC won for its clients; and (3) assuming that interest convergence has value as an advocacy tool, whether it potentially presents a downside for the marginalized clients the lawyer seeks to serve. I conclude the article with a discussion of a course I developed called Complex Problem Solving for Lawyers, which teaches law students to incorporate Bell’s interest-convergence theory into advocacy on behalf of despised groups like sex offenders.
May 2, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack
Wednesday, April 30, 2014
Montana Supreme Court orders resentencing in controversial rape case
As reported in this AP article, a "former high school teacher who served one month in prison after being convicted of raping a 14-year-old student faces more time behind bars after the Montana Supreme Court ruled Wednesday that his original sentence was too short." Here is more about a seeming just resolution to a high-profile and controversial state sentencing case:
Justices in a unanimous ruling ordered the case of Stacey Dean Rambold assigned to a new judge for re-sentencing. The decision means Rambold must serve a minimum of two years in prison under state sentencing laws, Yellowstone County Attorney Scott Twito said.
The high court cited, in part, the inflammatory comments of the sentencing judge, District Judge G. Todd Baugh, who drew wide condemnation for suggesting that the victim shared some responsibility for her rape. Baugh said during Rambold's sentencing in August that the teenager was "probably as much in control of the situation as the defendant." He later apologized....
The defendant was a 47-year-old business teacher at Billings Senior High School at the time of the 2007 rape. The victim, one of his students, killed herself while Rambold was awaiting trial. Rambold's sentence had been appealed by the state Department of Justice. Attorney General Tim Fox said the Supreme Court's decision had "rebuffed attempts to place blame on a child victim of this horrible crime."
Under state law, children younger than 16 cannot consent to sexual intercourse. Rambold's attorneys insisted in court filings that the original sentence was appropriate, and cited a "lynch mob" mentality following a huge public outcry over the case. Like Baugh, they suggested the girl bore some responsibility and referenced videotaped interviews with her before she committed suicide. Those interviews remain under seal by the court....
The family of victim Cherice Moralez issued a statement through attorney Shane Colton saying the court's decision had restored their faith in the judicial system. The statement urged the family's supporters to continue working together to keep children safe from sexual predators. During last year's sentencing hearing, prosecutors sought a 20-year prison term for Rambold with 10 years suspended.
But Baugh followed Lansing's recommendations and handed down a sentence of 15 years with all but 31 days suspended and a one-day credit for time served. Rambold was required to register as a sex offender upon his release and to remain on probation through 2028. After a public outcry, Baugh acknowledged the sentence violated state law and attempted retroactively to revise it but was blocked when the state filed its appeal.
The Supreme Court decision did not specify what sentence would be more appropriate. That means Rambold potentially could face even more time in prison. County Attorney Twito said he would consult with attorneys in his office and the victim's family before deciding how much prison time prosecutors will seek. The case will likely be assigned to a new judge sometime next week, Baugh said Wednesday. He said he was not surprised by the court's decision.
The judge sparked outrage when he commented that Moralez appeared "older than her chronological age." Her 2010 suicide took away the prosecution's main witness and resulted in a deferred-prosecution agreement that required Rambold to attend a sex-offender treatment program. When he was booted from that program — for not disclosing a sexual relationship with an adult woman and having an unauthorized visit with the children of his relatives — the prosecution on the rape charge was revived.
During August's sentencing, the judge appeared sympathetic to the defendant, fueling a barrage of complaints against him from advocacy groups and private citizens. It also led to a formal complaint against Baugh from the Montana Judicial Standards Commission that's now pending with the state Supreme Court. Justices said they intend to deal with Baugh separately. But their sharp criticism of the judge's actions signals that some sort of punishment is likely. "Judge Baugh's statements reflected an improper basis for his decision and cast serious doubt on the appearance of justice," Justice Michael Wheat wrote. "There is no basis in the law for the court's distinction between the victim's 'chronological age' and the court's perception of her maturity."
The full Montana Supreme Court decision is available at this link.
Prior related posts:
- "Protesters Demand Montana Judge Resign Over Rape Sentencing"
- New hearing ordered by Montana judge in case involving controversial 30-day child rape sentence
- Legal twists and turns continue in controversial rape sentencing case from Montana
Friday, April 25, 2014
Local California sex offender restrictions legally suspect after California Supreme Court (non)action
As reported in this local article, earlier this week that California Supreme Court "left intact a lower-court ruling that invalidates local ordinances aimed at restricting the movements of registered sex offenders in dozens of cities statewide." Local lawyers say this (non)action is a big deal:
The court’s decision Wednesday not to hear a case involving a Southern California sex offender means city and county ordinances banning such offenders from public parks and other public areas no longer may be enforced, attorneys say. Instead, a state law governing where sex offenders on parole may live now stands as the main restriction.
“If I read the tea leaves correctly, it’s probably dead everywhere in California,” Susan Kang Schroeder, chief of staff to Orange County District Attorney Tony Rackauckas said Thursday.
The Orange County District Attorney’s Office had led the effort to tighten restrictions on sex offenders and advised communities in that area on how to enact such ordinances. “We still believe that we were right on the law and we respectfully disagree,” Schroeder said. “We don’t regret the choices that we made in trying to keep sex offenders out of parks and keep children safe.”
The state Supreme Court’s action stemmed in part from an Orange County case in which a registered sex offender in Irvine went to a tennis court at a public park in violation of a local ordinance. The offender pleaded guilty, but a public defender appealed the case and won a ruling that state law trumps such local ordinances, Schroeder said. Her office appealed that to the 4th District Court of Appeal, which agreed with the appellate decision, so the Orange County District Attorney’s Office asked the state Supreme Court to hear the matter.
That court declined to do so Wednesday. It also declined to hear a second, similar case involving an offender who was cited after going to a picnic at a county park. The move effectively invalidates such local ordinances, Schroeder said, and leaves Jessica’s Law, passed by voters in 2006, as the main enforcement tool over paroled sex offenders. That measure, which also has faced court challenges, prevents sex offenders on parole from living within 2,000 feet of schools and parks.
Santa Maria attorney Janice Bellucci, president of a group called “California Reform Sex Offender Laws,” said the Supreme Court’s move is a “major victory” for efforts to provide more rights for individuals who must register on California’s Megan’s Law list of people with sex offenses in their pasts. “It means that our people on the registry — and we have over 105,000 now — can now go to public and private places that they could not go to before,” she said.
Bellucci has been waging a legal battle against such ordinances throughout the state and last month filed suit in U.S. District Court in Sacramento seeking to overturn a South Lake Tahoe measure. The South Lake Tahoe ordinance prohibits sex offenders from being in or within 300 feet of public or private schools, parks, video arcades, swimming pools or other areas where children might congregate. The ordinance allows for single trips traveling past such spots.
Bellucci said 70 cities and five counties in California have enacted such measures, and she has used a client, Frank Lindsay of San Luis Obispo, a registered sex offender, as the face of her lawsuits against such ordinances.... Bellucci said she views the matter as a “civil rights issue” that ultimately should be addressed by legislators to differentiate between people who made a mistake in their past — such as urinating in public or a young adult having consensual sex with a 17-year-old girlfriend, for example — from predators...
El Dorado County District Attorney Vern Pierson said Thursday that the Legislature has failed to address the need for balanced restrictions, something that may lead to new initiative drives. “This is more than anything else due to the Legislature’s inability to craft appropriate legislation to control the behavior and conduct of sex offenders that are out,” Pierson said.
He added that the county had crafted policies he thought were appropriate and similar to those in Orange County, allowing an offender to get written permission from the sheriff to be in certain public places around children. “I think there’s this misimpression that we want to ban sex offenders from going anywhere and doing anything,” Pierson said. “What we’re attempting to do is deal with the unusual situations where they’re predatory. If they go to an ice skating rink because they want to look at the young children, that’s who we’re trying to prevent from being in that kind of situation.”
Wednesday, April 23, 2014
"Are female sex offenders treated differently?"
The title of this post is the headline of of this new Salon article which carries this subheadline: "A light sentence for a teacher suggests courts still don't get it about women predators." Here is how the piece begins:
It’s an all too common story – a high school teacher facing sex abuse charges involving students admits to the wrongdoing and faces the criminal justice system. But was a sentence of just one month in custody at a Community Correction Center sufficient punishment for a 39-year-old educator who has sex abuse investigations dating back six years? And could the slap on the wrist sentence have anything to do with the fact that in this case, the teacher sentenced is a woman, and the victim is a boy?
In a case that involves charges of abuse from two male students, Oregon teacher Denise Keesee has acknowledged multiple sexual encounters in 2008 with a then 16-year-old student, and currently faces a $5.1 million lawsuit from another male student. According to Oregon Live, court documents show that “Keesee told detectives she kissed [the other student] several times in 2012 when they were alone in her classroom. She also reportedly admitted to sending him photos of herself, including one of her naked.” Because that student was 18, no criminal charges were filed.
The justice system doesn’t lack for stories of male abusers who get off with relatively light punishments. And it’s important to note that every story involving sex abuse is unique. But at the same time that Denise Keesee is facing just 30 days of confinement for what happened between her and a 16-year-old, a male teacher in her same state was last week sentenced to nearly three years in prison for “an inappropriate sexual relationship” with a 16-year-old female student. Last month in Idaho, a special education teacher was sentenced to five to 20 years in prison for sexually abusing two adolescent girls.
Wednesday, April 16, 2014
"Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders"
The title of this post is the title of this paper by Erin Lynn Miller, which I just noticed via SSRN. Here is the abstract:
Under current due process doctrine, punitive damages awards against civil defendants are reviewed for "proportionality" with the underlying misconduct, in accordance with traditional principles of retribution in punishment. This Comment argues that the same proportionality analysis could and should be applied to review statutes imposing harsh civil restrictions on the lives of released sex offenders who have already served their criminal sentences.
The argument first proceeds by way of analogy. Like punitive damages in the civil context, sex offender restrictions are (1) in tension with the principle of fair notice of punishment, (2) imposed via a structurally defective procedure, (3) directed against a socially disfavored group, and (4) punitive in nature. It is these justifications that the Supreme Court has offered for reviewing the proportionality of punitive damages. Adapting the proportionality test developed in the punitive damages case BMW v. Gore, this Comment then outlines four factors that courts could use to review sex offender restrictions under the Due Process Clauses.
Monday, April 14, 2014
Two notable circuit discussions of federal consequences of child porn production
I have just come across two notable circuit opinion dealing with the criminal and civil consequences child porn production. One was handed down late last week by the Fourth Circuit, US v. Cobler, No. 13-4170 (4th Cir. April 11, 2014) (available here), and it begins this way:
In this appeal, we consider the constitutionality and the reasonableness of a 120-year sentence imposed on a defendant convicted of production, possession, and transportation of child pornography, in connection with his sexual molestation of a four-year-old boy. The defendant argues that his lengthy prison sentence is disproportionate to his crimes, constituting cruel and unusual punishment under the Eighth Amendment, and that the sentence is greater than necessary to achieve legitimate sentencing goals. Upon our review, we reject the defendant’s constitutional challenge and conclude that the district court did not abuse its discretion in imposing a sentence designed to protect the public and to address the seriousness of the defendant’s crimes. Accordingly, we affirm.
The other opinion was handed down this morning by the Sixth Circuit, Prewett v. Weems, No. 12-6489 (6th Cir. April 14, 2014) (available here), and it begins this way:
Stanley Weems pleaded guilty to one count of producing child pornography. See 18 U.S.C. § 2251(a). His victim, J.W., filed this civil action against Weems to obtain compensation for the abuse. See id. § 2255(a). The district court awarded $1 million, a figure reached by multiplying the presumed-damages floor in the civil-remedies statute ($150,000) by the number of videos Weems produced (seven) and by capping the damages at the relief sought in J.W.’s complaint ($1 million). This accounting raises an interesting question: Does the civil-remedies statute set a presumptive floor of $150,000 for each criminal violation or a presumptive floor of $150,000 for each cause of action without regard to the number of alleged violations? As we see it, the text, structure and context of the statute, together with the structure of related civil-remedy laws, establish that the $150,000 figure creates a damages floor for a victim’s cause of action, not for each violation. We therefore reverse the district court’s contrary conclusion.
Tuesday, April 01, 2014
"Sex offender housing restrictions do more harm than good"
The title of this post is the headline of this notable Concord Monitor editorial. Here are excerpts:
Of all the constituents that politicians want to help out, sex offenders probably rank at the very bottom of the list. But the New Hampshire Senate should summon the courage to do just that. By helping sex offenders, as strange as it sounds, the Senate will end up making life safer for everyone else.
At issue is legislation that would ban cities and towns from placing broad restrictions on where sex offenders may live. Several communities have attempted such restrictions, and lower-court judges have already struck down two as unconstitutional: one in Franklin and one in Dover. In both cities, local officials wanted to keep convicted sex offenders from living too close to places where children regularly gather: schools, day care centers and playgrounds. Several other communities still have such ordinances on the books, among them Tilton, Sanbornton, Northfield and Boscawen.
The impulse to keep sex offenders away from kids via zoning is completely understandable. But there is strong reason to resist. And there is strong reason to set such policy at the state level, rather than leaving it to individual communities.
A growing body of evidence — gathered not just by civil liberties lawyers, but from law enforcement officers, public officials and child advocacy groups — suggests that residency restrictions are placebo pills at best and counterproductive at worst. Such ordinances give communities a false sense of security while driving sex offenders underground or into rural areas where they can’t access the services that give them the best chance at rehabilitation....
An Iowa study, for instance, showed that sexual-abuse convictions had remained steady since statewide residency restrictions went into effect five years earlier but that the number of sex offenders failing to register their addresses with local police departments, as the law required, had more than doubled.And a study in the journal Federal Probation draws a clear link between housing instability — an obvious consequence of residency ordinances — and criminal recidivism. Instead, it suggests a strategy of identifying and carefully monitoring the highest risk offenders and creating stable lives for the rest through treatment and access to housing, jobs and services.
When a sex offender has served his sentence, it is in everyone’s interest that he succeed on the outside. Passing this bill would help.
Monday, March 31, 2014
Controversy long after du Pont heir got probation as punishment for raping his small daughter
As detailed in this lengthy local article from Delaware, headlined "Heir's sentence raises questions in child rape case," a high-profile child rape case from years ago is now generating new controversy because the low sentence imposed on the rapist just became public. Here are the details:
A judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he "will not fare well" in prison and needed treatment instead of time behind bars, court records show.
Superior Court Judge Jan Jurden's sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape. Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.
Richards' 2009 rape case became public this month after attorneys for his ex-wife, Tracy, filed a lawsuit seeking compensatory and punitive damages for the abuse of his daughter. The fact that Jurden expressed concern that prison wasn't right for Richards came as a surprise to defense lawyers and prosecutors who consider her a tough sentencing judge. Several noted that prison officials can put inmates in protective custody if they are worried about their safety, noting that child abusers are sometimes targeted by other inmates.
"It's an extremely rare circumstance that prison serves the inmate well," said Delaware Public Defender Brendan J. O'Neill, whose office represents defendants who cannot afford a lawyer. "Prison is to punish, to segregate the offender from society, and the notion that prison serves people well hasn't proven to be true in most circumstances." O'Neill said he and his deputies have often argued that a defendant was too ill or frail for prison, but he has never seen a judge cite it as a "reason not to send someone to jail."...
O'Neill said the way the Richards case was handled might cause the public to be skeptical about "how a person with great wealth may be treated by the system." Richards, who is unemployed and supported by a trust fund, owns a 5,800-square-foot mansion in Greenville, Del., he bought for $1.8 million in 2005. He also lists a home in the exclusive North Shores neighborhood near Rehoboth Beach, according to the state's sex abuse registry. His great-grandfather is du Pont family patriarch Irenee du Pont, and his father is Robert H. Richards III, a retired partner in the Richards Layton & Finger law firm....
The lawsuit filed by Richards' ex-wife accuses him of admitting to sexually abusing his infant son between 2005 and 2007, the same period when he abused his daughter starting when she was 3. Police said they investigated allegations involving the boy in 2010 after his mother filed a complaint, but said they did not have sufficient evidence to justify charges. Investigators will take another look at the allegations included in the lawsuit, which are based on reports by probation officers.
State Attorney General Beau Biden's office had initially indicted Richards on two counts of second-degree rape of a child -- Class B violent felonies that carry a mandatory 10-year prison term for each count. According to the arrest warrant filed by a New Castle County Police Detective JoAnna Burton in December 2007, the girl, then 5, told her grandmother, Donna Burg, that Richards sexually abused her.
Burg said the child reported that her father told her it was "our little secret" but said she didn't want "my daddy touching me anymore." Tracy Richards, who confronted her then-husband, told police he admitted abusing his daughter but said "it was an accident and he would never do it again," the warrant said.
Richards was free on $60,000 secured bail while awaiting trial on the charges that could have put him behind bars for years. But in June 2008, just days before a scheduled trial, prosecutor Renee Hrivnak offered Richards a plea to a single count of fourth-degree rape, which carries no mandatory time, and he accepted, admitting in court that he abused his child.
"It was more than reasonable, an enlightened plea offer," Richards attorney Eugene J. Maurer Jr. said. Fourth-degree rape is a Class C violent felony that by law can bring up to 15 years in prison, though guidelines suggest zero to 2 1/2 years in prison.
At Richards' February 2009 sentencing, Hrivnak recommended probation, Biden's chief deputy Ian R. McConnel said, adding that in retrospect he wished she would have sought prison time. Hrivnak would not comment.... McConnel would not discuss the rationale behind the Richards' plea deal and Hrivnak's recommendation of probation for the fourth-degree rape conviction.
While judges have the latitude to sentence defendants within legal parameters, they are urged to follow more lenient guidelines established by the Delaware Sentencing Accountability Commission, a panel of judges and other top officials in the criminal justice system. The panel has a policy that prison should be reserved for violent offenders, including rapists.
Jurden gave Richards, who had no previous criminal record, an eight-year prison term, but suspended all the prison time for probation. "Defendant will not fare well in Level 5 setting," said the final line of her sentencing order. In Delaware's correctional system, Level 5 is prison....
Defense lawyer Joseph A. Hurley said it makes sense to him that the judge would be concerned about Richards' time in prison. "Sure, they have protective custody, but that is solitary confinement for 23 hours a day. We're not a third-world society," Hurley said. "Sex offenders are the lowest of the low in prison," Hurley said. "He's a rich, white boy who is a wuss and a child perv. The prison can't protect them, and Jan Jurden knows that reality. She is right on."
Though lots of reactions to this story are possible, I cannot help but highlight that a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated. But I am inclined to encourage everyone to appreciate how this story reveals yet again how prosecutorial charging, bargaining and sentencing decisions are never subject to transparency or formal review, while judicial sentencing decisions have to be made in open court, on the record, and can in some cases be appealed.
Friday, March 28, 2014
"Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law"
The title of this post is the title of this new article by Melissa Hamilton now available via SSRN. Here is the abstract:
Risk has become a focal point of criminal justice policy. Officials draw upon the sciences for the best evidence to differentiate between offenders at high risk of being a future threat to society, for whom preventive incapacitation may be justifiable, and those at low risk, for whom diversion might alleviate the overuse of imprisonment. A recent turn in evidence-based practices is to borrow the newest technologies developed in the forensic mental health field to better classify offenders accordingly to their predicted likelihood of recidivism.
Actuarial risk assessment is considered the new frontier as a progressive sentencing reform, representing best practices in predicting recidivism risk. The actuarial turn is adjudged to offer probabilistic estimates of risk that are objective, reliable, transparent, and logical. Policy groups, state legislatures, judges, and probation offices actively promote the use of actuarial risk assessment, believing the empirically-derived tools effectively standardize sentencing practices, mitigate bias, and thereby increase the legal and moral standing of sentencing outcomes.
Actuarial prediction is promoted as founded upon scientific and empirical principals. This Article critically analyzes the predictive abilities of actuarial risk prediction tools utilizing statistical, empirical, and legal methods. A specific focus herein is the risk prediction of those criminals for whom fear is strongest: violent and sexual offenders.
Several questions are of interest: Is widespread reliance on actuarial sentencing justified? Are actuarial risk results sufficiently relevant, valid, and reliable for sentencing law? Is actuarial evidence too prejudicial, confusing, and misleading to meet evidentiary standards in sentencing?
The Article addresses proponents’ arguments that, regardless of any weaknesses, actuarial risk results should be admissible because they constitute merely one piece of evidence in a multi-faceted decision and that any flaws or errors in the evidence can be deduced through normal adversarial processes.
March 28, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack
Tuesday, March 25, 2014
Illinois commission advocates against putting all juve sex offenders on registry
As explained in this AP article, headlined "Commission: Remove Juveniles From Sex Offender Registries," a new public policy report urges Illinois officials to no longer require juvenile sex offenders to register. Here are the basics:
Requiring juveniles to register as sex offenders impairs rehabilitation efforts for a crime that very few of them ever commit again, according to a study released Tuesday. The Illinois Juvenile Justice Commission’s report recommends ending the practice of making offenders younger than 17 add their names to sex-offender registries, which can negatively affect an offender for years. Every juvenile convicted of a sex crime must register, and 70 percent of the 2,553 currently registered must do so for life, the report said.
The 150-page review of laws and treatment practices regarding juvenile sex crimes calls for the state to abolish the categorical requirement for young offenders’ registration. The report [available here], which the General Assembly requested in 2012, says sex crimes committed in youth are seldom repeated in adulthood and that individualized, community-based treatment plans are highly effective and more productive than incarceration.
“Automatic, categorical registries do not protect public safety,” commission chairman George Timberlake, a retired chief circuit judge from Mount Vernon, told The Associated Press. “There’s no evidentiary basis that says they do and more importantly, they have very negative consequences in the effects they have on the offenders’ life, and perhaps the victim’s life.”
Timberlake said the victim, often a family member, loses confidentiality through offender registration and can also suffer from not being able to resume a familial relationship with an offender who is required to register. He added that a registry might be appropriate based on risk. Many states offer courts flexibility.
The report recommends developing statewide standards and training for courts and law enforcement professionals for intervening with young sex offenders and victims. It also calls for a consistent assessment tool for evaluating risks an individual juvenile poses. Also, the report says, offenders whenever possible should be kept in treatment programs in their homes that involve parents as opposed to locking them up.
March 25, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Saturday, March 22, 2014
Florida state judge balks at 50-year proposed sentence for notable child porn downloader
As reported in this local article, headlined "Sentencing on porn charges delayed for former Univision star," a state judge in Florida is concerned about the lengthy prison sentence being urged by prosecutors for a high-profile defendant. Here are the details:
A hearing to determine the fate of former Univision star Adonis Losada on child pornography possession charges ended without a prison sentence Friday after a judge said she needed more time to decide. Circuit Judge Karen Miller made the rare move after she told prosecutors that their 50-year recommended sentence for Losada was more than double the highest punishment she had seen for similar crimes in recent years — harsher than sentences in cases where defendants actually had contact with victims.
Losada, who has been in jail since his 2009 arrest on dozens of charges capping an undercover investigation, was uncharacteristically quiet Friday. He again refused to have Miller appoint a lawyer to represent him, as he had during his seven-day trial in February, but refrained from the long rants that forced Miller to halt proceedings several times.... Losada played the laughable, clumsy grandmother, Doña Concha, on the Univision variety show Sabado Gigante — a role he played until his 2009 arrest. Univision is the largest Spanish-language television network in the United States.
Assistant State Attorney Gregory Schiller told Miller that the high sentence was proper for Losada because he had more than 1,000 images of child pornography and was actively trying to arrange to have sex with either the niece or daughter of the undercover detective who was posing as another chat-room user. “He has no sympathy, no care for the children who were being raped, being sodomized in those images. He traded them like baseball cards,” Schiller said.
Miller, however, said her research found that the highest sentence for a child pornography possession case in Palm Beach County over the past three years was 18 years. She also noted that prosecutors who charge defendants with dozens of counts in these cases usually carry a fraction of those charges into trial or drop some of the charges upon conviction.
Schiller noted that Losada rejected a 20-year plea deal before trial. “So you want me to penalize him for exercising his constitutional right to go to trial?” Miller asked.
Based on the convictions, Miller could sentence Losada to up to 330 years in prison, Schiller noted. The minimum recommended sentence based on state sentencing guidelines is 571 months — or just under 48 years....
Losada also faces similar charges in Miami and had been under investigation for child pornography possession in California.
Wednesday, March 19, 2014
Should sex offenders be prohibited from winning lottery jackpots?
The question in the title of this post is prompted by this new FoxNews report headlined "Massachusetts official seeks to prevent sex offenders from collecting large lotto payouts." Here are excerpts:
A Massachusetts state senator is pushing to close a lottery loophole that allows sex offenders to pocket huge payouts and potentially use their winnings to buy their victims' silence.
"Should someone on the sex offender list purchase a ticket and win, I think we should find a way from preventing them from enjoying the proceeds," state Sen. Richard Moore told The Boston Herald. "This doesn't smell right to start with."
Moore's concern came as it was revealed that a Level 3 serial child predator walked away with a $10 million win in 2008 and used his winnings to buy gifts for a boy he was allegedly abusing. Daniel T. Snay, 62, was convicted four separate times of indecent assault and battery on a person 14 years or older from 1974 to 1987. He pleaded not guilty Monday at his arraignment on charges including indecent assault and battery on a child under the age of 14 and other charges....
"I guess he bought my silence by giving me gifts and stuff," the boy, now 16, told police, according to a transcript released in court, the paper reported. The alleged abuse occurred about the same time he won the lottery and it continued until March 1, 2012, the report said.
Police Chief Jeffrey Lourie said Snay's "windfall aided the commission of the crimes" by helping him gain favor with people. Sam Goldberg, Snay's attorney, told the paper the allegations are "very easy to bring ... especially when you know this is someone who’s already been a lightning rod ... because of the lottery winnings."
The director of the state's lottery told the paper that winnings can be intercepted by the IRS or Department of Revenue, but a payout cannot be withheld “based on someone’s character."
Thursday, March 06, 2014
"How to Lie with Rape Statistics: America's Hidden Rape Crisis"
The title of this post is the title of this intriguing new paper on SSRN authored by Corey Rayburn Yung. Here is the abstract:
During the last two decades, many police departments substantially undercounted reported rapes creating "paper" reductions in crime. Media investigations in Baltimore, New Orleans, Philadelphia, and St. Louis found that police eliminated rape complaints from official counts because of cultural hostility to rape complaints and to create the illusion of success in fighting violent crime. The undercounting cities used three difficult-to-detect methods to remove rape complaints from official records: designating a complaint as "unfounded" with little or no investigation; classifying an incident as a lesser offense; and, failing to create a written report that a victim made a rape complaint.
This study addresses how widespread the practice of undercounting rape is in police departments across the country. Because identifying fraudulent and incorrect data is essentially the task of distinguishing highly unusual data patterns, I apply a statistical outlier detection technique to determine which jurisdictions have substantial anomalies in their data. Using this novel method to determine if other municipalities likely failed to report the true number of rape complaints made, I find significant undercounting of rape incidents by police departments across the country. The results indicate that approximately 22% of the 210 studied police departments responsible for populations of at least 100,000 persons have substantial statistical irregularities in their rape data indicating considerable undercounting from 1995 to 2012. Notably, the number of undercounting jurisdictions has increased by over 61% during the eighteen years studied.
Correcting the data to remove police undercounting by imputing data from highly correlated murder rates, the study conservatively estimates that 796,213 to 1,145,309 complaints of forcible vaginal rapes of female victims nationwide disappeared from the official records from 1995 to 2012. Further, the corrected data reveal that the study period includes fifteen to eighteen of the highest rates of rape since tracking of the data began in 1930. Instead of experiencing the widely reported "great decline" in rape, America is in the midst of a hidden rape crisis. Further, the techniques that conceal rape complaints deprioritize those cases so that police conduct little or no investigation. Consequently, police leave serial rapists, who constitute the overwhelming majority of rapists, free to attack more victims. Based upon the findings of this study, governments at all levels must revitalize efforts to combat the cloaked rise in sexual violence and the federal government must exercise greater oversight of the crime reporting process to ensure accuracy of the data provided.
March 6, 2014 in National and State Crime Data, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Friday, February 21, 2014
SCOTUS permits additional briefing on CP restitution issues in light of Burrage
The Supreme Court issued a notable two-sentence order today in Paroline v. US, the pending case on child porn restitution sentences. Here is the text of the order:
The motion of respondent Amy Unknown for leave to file a supplemental brief after argument is granted. The other parties may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of our decision in Burrage v. United States, 571 U. S. ___ (2014), on this case, on or before Friday, March 7, 2014.
Lyle Denniston over SCOTUSblog has an extended discussion of this intriguing new development, which includes these passages:
The Court, it appears, did not stir up this new issue on its own. The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case. The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.
Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them....
In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.” The letter offered to submit a brief on the point.
In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively. In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.
The supplemental filing accepted by the Supreme Court today from lawyers for “Amy Unknown” is available at this link.
A few (of many) prior posts on Paroline and child porn restitution issues:
- 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."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
- Explaining why I am rooting so hard for "Amy" in Paroline
February 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack