Thursday, December 06, 2012
Fourth Circuit rejects feds' effort to commit "sexually dangerous person" under AWAThe Fourth Circuit has a notable sex offender civil committment ruling today in US v. Caporale, No. 12-6832 (4th Cir. Dec. 6, 2012) (available here). Here is how it gets started:
The government appeals the judgment of the district court directing that Patrick Caporale be freed from the custody of the Bureau of Prisons and granted supervised release. Caporale finished serving his prison sentence for child molestation in 2008, but he has remained incarcerated while the government seeks to have him declared a "sexually dangerous person" pursuant to the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act"), Pub. L. No. 109-248, 120 Stat. 587, as specifically set forth in 18 U.S.C. § 4248.
A sexually dangerous person under the Walsh Act means one "who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." 18 U.S.C. § 4247(a)(5). A person is sexually dangerous to others insofar as he or she "suffers from a serious mental illness, abnormality, or disorder," and, as a result, "would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(6). The parties have never disputed that, as evidenced by his several convictions, discussed infra, Caporale satisfies the first, prior-conduct element of § 4247(a)(5) by having engaged in child molestation.
Following an evidentiary hearing whose scope was thereby limited to the second element of § 4247(a)(5), the district court ruled that, as a matter of law, the government had not proved that Caporale suffers from a serious mental illness, abnormality, or disorder. The court perceived in the alternative that even if Caporale were so afflicted, his commitment was not required because the government had also failed to sufficiently show that Caporale will experience serious difficulty in refraining from sexually violent conduct or child molestation if released.
We conclude that, contrary to the district court’s legal determination and as established by the evidence, Caporale indeed suffers from a qualifying mental impairment. We nevertheless affirm the judgment below, discerning no clear error in the court’s alternative rationale that the government fell short of carrying its burden to demonstrate a relative likelihood that Caporale will reoffend.
Sunday, December 02, 2012
State court strikes down Orange County prohibition on sex offender visits to parks and beachesAs reported in this new Los Angeles Times article, a "controversial Orange County sex offender law that bans some people from visiting parks and beaches has been ruled illegal by a panel of Superior Court judges, who have asked the state appeals court to now review the get-tough rule." Here is more about the ruling and its impact:
The panel reached the decision after overturning the conviction of a registered sex offender who was ordered to serve 100 days in jail after he was caught attending a Cinco de Mayo party at Mile Square Park in Fountain Valley.
The Orange County district attorney’s office, which has pushed cities across the county to adopt the sex offender ban, said it would continue to enforce the law. “I believe that protecting children from sex offenders is one of the highest priorities in law enforcement,” Dist. Atty. Tony Rackauckas said in a statement.
But the ruling has drawn immediate fallout. Sheriff Sandra Hutchens has asked her department to stop enforcing the law, and Lake Forest, one of the many cities that adopted the rule, is considering repealing its ordinance.
Nearly half the 34 cities in Orange County have adopted the law, and of those, almost half are now being sued. To persuade cities to adopt the law, the district attorney's office has taken a forceful approach — sending ranking prosecutors and administrators to City Council meetings to talk with municipal leaders.
Orange County appears to be the lone county in the state to adopt a law banning all registered sex offenders — even those who haven't been convicted of a crime against children — from going to a county beach or spending time in a county park. And while registered sex offenders can apply for an exemption for work or family gatherings, few have been approved.
In its Nov. 15 decision, the Appellate Division of Orange County Superior Court ruled that the county ordinance is unlawful because the state Legislature is the only body that should be enacting restrictions on sex offenders. “Such a patchwork of local ordinances poses tremendous risk to the offender who may not be aware of each regulation in each city, or indeed even know the precise location of city borders,” the decision read.
Tuesday, November 27, 2012
Congress passes bill to double statutory maximum for child porn possession
Thanks to a helpful reader, I just learned that late yesterday Congress passed a bill to increase the statutory maximum for child porn possession offenses from 10 years to 20 years. Especially because child porn receipt already has a stat max of 20 years and because federal prosecutors often can (and often do) charge multiple counts of possession to expose a defendant to more than 10 years imprisonment under current law, I was not aware that anyone directly involved in federal child porn cases thought this stat max needed to be raised. But, as this local report on the legislation highlights, the increase was part of a broader effort to give authorities even more weapons to go after child porn offenders:
A bill designed to protect children from sexual predators has cleared Congress and is headed to the White House to be signed into law. “With President Obama’s signature, this law will help to rescue the thousands of children suffering from unthinkable abuse,” said Congresswoman Debbie Wasserman Schultz, a Democrat from Weston, who sponsored the bill along with House Judiciary Chairman Lamar Smith, a Texas Republican.
The bill’s passage is one sign that Congress can still get something done, especially when leaders from each party push a non-controversial measure. The bill increases the maximum penalty from 10 years in prison to 20 years for child pornography offenses that involve pre-pubescent children, or those under age 12.
The bill allows a federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated, and it imposes criminal penalties for violating a protective order. It gives U.S. Marshals limited subpoena authority to locate and apprehend fugitive sex offenders. The Child Protection Act also reauthorizes for five years the Internet Crimes Against Children Task Forces, a national network of investigators who have arrested more than 30,000 individuals involved in child exploitation since 1998, Wasserman Schultz’ office reported.
The Senate approved the legislation on Monday night by unanimous consent. The House passed it by voice vote in August. “This bill ensures that the spread of child pornography online is addressed aggressively and quickly,” Wasserman Schultz said, “and ensures that investigators have every available resource to track down predators and protect our children.”
Wednesday, November 14, 2012
Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issuesThe Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images. Here is the final paragraph from the lengthy unanimous panel opinion:
To summarize: The defendant’s prison sentence is affirmed. The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases. The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images. The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.
Wednesday, November 07, 2012
California voters approve new sex offender law, parts of which get swiftly blocked by federal judgeI have not closely followed the particulars of Proposition 35 in California, a human trafficking ballot initiative which generated limited debate or controversy before election day. But, as reported in this new piece from Wired, the initiative received overwhleming support yesterday and today was partially block by a federal judge. Here are the details:
Immediately following the passage of a California proposition that would dramatically curtail the online, First Amendment rights of registered sex offenders, two civil rights groups filed a lawsuit to block parts of the overwhelmingly approved measure.
Proposition 35, which passed with 81 percent of the vote Tuesday, would require that anyone who is a registered sex offender — including people with misdemeanor offenses such as indecent exposure and whose offenses were not related to activity on the internet — would have to turn over to law enforcement a list of all identifiers they use online as well as a list of service providers they use.
The Californians Against Sexual Exploitation Act would force sex offenders to fork over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites or at online forums and in internet chat rooms.
The American Civil Liberties Union and the Electronic Frontier Foundation, which filed their suit (.pdf) on behalf of two registered sex offenders, say that although the measure is vaguely worded, in practice it likely means that registered sex offenders would have to provide user and screen names that they use for participation in online political discussion groups, forums about medical conditions, and even the comment sections of online newspapers and blogs....
The lawsuit, filed in San Francisco federal court, is demanding that a judge immediately block the measure’s internet-reporting provisions.... Michael Risher, an ACLU attorney, said Californians should be concerned that even though the bill only affects registered sex offenders now, the law creates a slippery slope for the same requirements to be applied to others.
He points, for example, to a California DNA-collection law that has expanded dramatically beyond the people it first targeted. Initially, the law required only those convicted of sex offenses and serious felonies to provide authorities with a DNA sample to be included in a state and federal database. But in 2004, this expanded to anyone convicted of a felony, and in 2009, to anyone simply arrested for a felony....
The measure would currently affect some 73,000 sex offenders registered in California, but the law also requires those convicted of human trafficking to register as sex offenders, thus widening the pool of people affected.
UPDATE: Citing First Amendment concerns, U.S. District Judge Thelton Henderson in San Francisco agreed with the plaintiffs, and late Wednesday tentatively blocked enforcement of the measure (.pdf) pending further litigation.
Wednesday, October 31, 2012
Split federal court ruling on local Halloween sex offender ordinance in CaliforniaAs reported in this local article, headlined "Judge temporarily blocks part of Simi Valley Halloween sex offender law," a notable constitutional lawsuit resulted in a split outcome in California federal court. Here are the details:
A federal judge Monday temporarily blocked enforcement of a key provision of Simi Valley's new Halloween sex offender law but left the rest of the ordinance intact. U.S. District Judge Percy Anderson's ruling came days before the holiday on Wednesday.
Anderson temporarily blocked the city from requiring its several dozen convicted child sex offenders listed on the Megan's Law website to post signs on their front doors on Halloween saying: "No candy or treats at this residence."
But Anderson let stand requirements that the offenders refrain from opening their doors to trick-or-treating children and decorating the outside of their homes or front lawns with Halloween ornaments. The convicts also must turn off outdoor lighting on their properties from 5 p.m. to midnight Wednesday.
Attorney Janice Bellucci, who last month filed a lawsuit saying the law was unconstitutional, said she was pleased with the ruling even though she had sought to have enforcement of the entire ordinance temporarily blocked pending the outcome of the lawsuit.
Simi Valley City Attorney Marjorie Baxter said the ruling was "a big victory on the majority of the ordinance." The Simi Valley City Council on Sept. 10 enacted the law — the only one of its kind in Ventura County — to try to prevent sex offenders from having contact with trick-or-treating children. It was championed by Mayor Bob Huber, a lawyer who is seeking re-election Nov. 6.
Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit Sept. 28 on behalf of five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. It says the law violates the First and 14th Amendments of the Constitution because it "suppresses and unduly chills protected speech and expression."
Private attorneys representing the city in the lawsuit disagree. "Convicted child molesters have no constitutionally protected right to hand out candy at Halloween," they said in court papers. "Children, on the other hand, do have a constitutionally protected right to be safe from sexual assault."
I find intriguing the city's assertion that children have a "constitutionally protected right to be safe from sexual assault," in part because taking that claim seriously could subject the city to liability if and whenever the city failed to keep children safe from sexual assault in other settings.
Recent related posts:
- Sex offenders claim First Amendment violated by local Halloween ordinance targeting them
- More on sex offenders' First Amendment challenge to local halloween challenge in California
Saturday, October 27, 2012
Is justice delayed really justice denied before federal sentencing for child porn professor?The question in the title of this post is prompted by this local federal sentencing story, which is headlined "Vanderbilt professor's sentencing in child porn case delayed again: Two years after his guilty plea, case continued for an eighth time." Here are the details of this intriguing sentencing story:
A Vanderbilt University sociology professor slated to be sentenced Friday for a child pornography conviction had his case continued for an eighth time while he tried to receive a penalty below the federal sentencing guidelines. James Lang, 68, is on leave from Vanderbilt, where he has held a position since 1974. He was charged in 2008 and entered a guilty plea on Sept. 17, 2010.
The government answered his motion for reduced sentencing with a 15-page response in opposition to a variance from sentencing guidelines. The response was received by Lang’s attorney Thursday afternoon and he said he need more time to review it. U.S. District Court Chief Judge William J. Haynes Jr. agreed but did not reschedule the sentencing.
A previous continuance was filed to accommodate Lang with moving plans, another because of a death in his attorney’s family, and others for preparation purposes. The initial sentencing date was set for Dec. 17, 2010.
Lang admitted to looking at child pornography in his office the morning he was interviewed by police in Garland Hall at Vanderbilt, according to the criminal complaint. He also said that he saw no problem with viewing explicit images of children “enjoying themselves” and that he had been viewing such images for many years.
After he and his wife took the computer to have a virus and spyware inspection, thumbnail images of what appeared to be children under the age of 8 caused the owner of a computer repair service to report Lang to local police, according to court documents. More than 5 gigabytes of data with more than 7,000 pornographic images, including “children in sexual positions,” were initially found on Lang’s computer, which was Vanderbilt property. Lang pleaded guilty to possessing 233 images and 13 videos of child pornography.
Several letters of support from Vanderbilt professors and other colleagues were submitted to the court, and he entered a 12-step program while awaiting sentencing. Among his many sociologically driven projects, Lang served as a Vista Volunteer at Southside Settlement House in Columbus, Ohio, and worked as a project director for Crossroads Africa in Gambia, according to the Vanderbilt website.
Lang is under home detention as part of his conditions of release and may face up to 10 years in prison upon sentencing.
As a substantive matter, this case is yet another interesting and challenging child porn downloading sentencing in which lots of different arguments could be presented to make lots of different claims about what sentence here would be "sufficient but not greater than necessary" to achieve congressional sentencing purposes set forth in 3553(a)(2). But as the question in the title of this post spotlights, this case is also intriguing (and controversial?) because of how much time has elapsed between charges, conviction and sentencing.
I know initial federal sentencing dates often get delayed and that a few sentencing continuances are not uncommon. But I cannot recall hearing of another case in which sentencing has been delayed eight times (especially when a defendant is free on bail during this extended period). In addition, because of the defendant's history and characteristics and post-charge behaviors, he may during this extended pre-sentencing period be uniquely able to build stronger arguments for a departure or variance based on his advancing age or his (declining?) health or his (now lengthy) post-offense rehabilitation and actions.
I would be especially interested in hearing from experienced federal practitioners about whether this case is really as unusual as it seems or if, in fact, this kind of lengthy pre-sentencing period is not that uncommon.
Tuesday, October 23, 2012
Ninth Circuit finds "fundamental right of to familial association" made special sex offender SR conditions "substantively unreasonable"A lengthy opinion from the Ninth Circuit today in US V. Wolf Child, No. 11-30241 (9th Cir. Oct. 23, 2012) (available here), should be of interest to anyone who has ever been concerning about the application of broad supervised release conditions. Here is how the panel opinion gets started:
Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.
In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer. On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child’s contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.
October 23, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack
Thursday, October 18, 2012
Federal judge finds unconstitutional Nebraska's statute criminalizing all sex offender use of social networking sitesAs reported via this post by David Post at The Volokh Conspiracy, yesterday US District Judge Richard Kopf declared unconstitutional a portion of Nebraska's sex offender registry law making it a crime for registered sex offenders to make any use of any social networking web site. The full, lengthy opinion is available at this link, and here is how it begins:
Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there. By that, I meant that it is not my prerogative to second-guess Nebraska’s policy judgments so long as those judgments are within constitutional parameters. Accordingly, I upheld many portions of Nebraska’s new sex offender registration laws even though it was my firm personal view that those laws were both wrong-headed and counterproductive.
However, I had serious constitutional concerns about three sections of Nebraska’s new law. After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns. The trial has now been concluded, and I have decided that the remaining portions of Nebraska’s sex offender registry laws are unconstitutional.
In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path. For three sections of Nebraska’s new sex offender registry law, Nebraska has violently swerved from that path. I next explain why that is so.
UPDATE: This new local article about this ruling provides some more information concerning the rulign and some reactions. Here are excerpts:
On Thursday, Omaha attorney Stu Dornan, whose firm represented the men and women challenging the laws as John and Jane Doe, hailed this week's ruling, saying the laws had left people on the Nebraska Sex Offender Registry unsure whether they could text or email family members or even turn on a computer.
He said Kopf's ruling upheld the Constitution as a document that protects even sex offenders, who are viewed by many Nebraskans, as Kopf said in his order, as the lepers of the 21st century. "The Constitution, if it does not protect this group of people, it does not protect any of us," Dornan said....
As scathing as Kopf's 73-page order was at times, the judge did also set out a pathway for Nebraska lawmakers to cure it. "Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary -- use a scalpel rather than a blunderbuss," the judge said. As it was, Kopf said Nebraska lawmakers had gone too far, putting a stake through the heart of the First Amendment and gutting protections against suspicion-less searches....
At trial, the attorney general's office argued that the laws did not keep offenders from using the Internet entirely. But Kopf said the Nebraska Legislature went far beyond its purported purpose when it criminalized the provisions. "These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens," he said. "They are silenced. They are rendered insecure in their homes."
He said lawmakers could draft a statute that required convicted sex offenders to provide Internet addresses that the state could track, rather than requiring sex offenders to constantly update the state about when and where they post, for instance. The state also could narrow social networking and chatroom restrictions to offenders who committed their crimes using the Internet, he said....
Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said his office respectfully disagreed with the court's decision. "We are reviewing the ruling and assessing our options," she said.
Thursday, October 11, 2012
Split Sixth Circuit opinion addresses range of child sex offense sentencing issuesThe Sixth Circuit has a lengthy split opinion today in US v. Zobel, No. 11-3341 (6th Cir. Oct. 11, 2012) (available here), which covers a lot of sentencing issues that seems to arise a lot in the all-too-common setting of adult men luring girls to engage in illegal sexual activity. Here is how the majority opinion gets started:
Defendant–appellant David Zobel appeals his sentence for knowingly coercing and enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). After Zobel pled guilty, the district court imposed a sentence of 150 months of imprisonment, which represented a 15 month upward variance from the upper-end of the Guidelines range. The district court also imposed several special conditions of supervised release for life, which prohibit Zobel, inter alia, from having contact with minors absent prior judicial approval, loitering in areas where children tend to congregate, and possessing or viewing pornography or materials that are “sexually explicit or suggestive.” Zobel argues that his sentence — both the term of incarceration and several special conditions — was both procedurally and substantively unreasonable.
For the reasons that follow, we vacate the part of the special condition that bans possessing or accessing “sexually suggestive” materials, affirm the remainder of the sentence, and remand for resentencing proceedings consistent with this opinion.
A brief dissent by Judge Moore follows the lengthy majority opinion, and it gets started this way:
A district court must state in open court and in a written statement of reasons the specific reason it is imposing an outside-guidelines sentence on a defendant. 18 U.S.C. § 3553(c)(2). Because the district court failed to state a specific reason for its fifteen-month upward variance both in open court and in its written statement of reasons, the district court committed plain error. The majority, however, nonetheless affirms. I respectfully dissent.
Tuesday, October 09, 2012
Interesting Third Circuit ruling addresses state-federal and federal-federal sex offense disparity claimThe Third Circuit has an intriguing little federal sentencing decision today in US v. Begin, No. 11-3896 (3d Cir. Oct. 9, 2012) (available here). Here his how the majority opinion starts:
Michael Eugene Begin appeals from a final judgment of conviction and sentence on charges related to his use of the internet and a cellular phone to send sexual messages and photographs to a minor in order to persuade her to have sex with him. Begin pled guilty and was sentenced to 240 months' imprisonment, representing a 30-month upward departure from the top of his advisory Sentencing Guidelines range. On appeal, Begin argues that his sentence is unreasonable because the District Court failed to consider his request for a downward variance based on the asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law. We will vacate Begin‟s sentence and remand for the District Court to consider his request.
And here is how the partial dissent by Judge Roth gets started:
I concur with the majority’s conclusion regarding the issue of federal/state sentencing disparities. I disagree, however, with the majority’s decision to vacate the sentence and remand to the District Court for consideration of the alleged federal/federal sentencing disparity. I would hold, as a matter of law, that the disparity between the two federal statutes raised here is irrelevant to the consideration of sentence disparities under 18 U.S.C. § 3553(a)(6). I would, therefore, affirm the sentence imposed.
"Sandusky sentenced to 30 to 60 years"The title of this post is the headline from this AP report of today's high-profile child sex abuse state sentencing in Pennsylvania. Here is how it begins:
Former Pennsylvania State University football coach Jerry Sandusky was sentenced to 30 years to 60 years in prison for charges of child sex abuse that involved 10 boys and spanned a decade and a half.
Legal observers said the sentence ensures that Mr. Sandusky, 68 years old, will almost certainly spend the rest of his life in a state prison. He had faced a minimum of 10 years and a maximum of more than 200 years. Experts said the chances of Mr. Sandusky successfully appealing his conviction is remote.
Mr. Sandusky, wearing a red prison jumpsuit with "Centre County" printed on the back, stood motionless in a crowded but hushed courtroom as Judge John Cleland read a list of individual sentences for 45 counts related to child sex abuse that Mr. Sandusky had been convicted of in June.
"The tragedy of this crime is that it's a story of betrayal," Judge Cleland said before handing down the sentence. "Those who have never encountered a pedophile can hardly begin to understand the anguish of those who have been so expertly deceived….The crime is not only what you did to their bodies but what you did to their psyches and souls."
Judge Cleland said to Mr. Sandusky, "When I say to you that you're sentenced to spend not less than 30 years to 60 years in prison, that has the unmistakable impact of saying clearly 'for the rest of your life.' "
Judge Cleland also addressed Mr. Sandusky's victims, several of whom were in the courtroom and had read statements about being sexually abused. "The fact that you were assaulted is no cause for embarrassment or shame," Judge Cleland said. "It is for your courage and not for your assault that you will be remembered. And it is that on which you must focus if you are going to become whole and healed."
Mr. Sandusky, who chose not to testify during his trial, read a lengthy statement in the courtroom. A weary-looking Mr. Sandusky maintained that he is innocent. "Others can take my life. They can make me out as a monster," Mr. Sandusky said. "They can't take away my heart, and in my heart I know that I didn't commit these alleged disgusting acts."
Mr. Sandusky spoke about the victims who he said had wrongfully accused him, as well as about football, prison life, his dog and missing his family. His wife Dottie looked on, holding the side of her face with one hand. At the end, his voice cracked with emotion as he spoke of being separated from his family.
Three young men read statements in court and said they were still suffering from the abuse they suffered at Mr. Sandusky's hands. "I will never erase the filthy images of his naked body against mine, but he must pay for his crimes which he has now been convicted of," said a young man identified as Victim 5, who testified that he was molested in a Penn State shower by Mr. Sandusky. "He took away my childhood the day he assaulted me. He should be sentenced accordingly."
Guest Post on Jerry Sandusky's expected exercise of his allocution rightMark Allenbaugh sent me comments about Jerry Sandusky's upcoming sentencing, and I urged him to turn his thoughts into a guest post. Here it is:
Today, Jerry Sandusky most likely will be sentenced to a term that will guarantee he serves the rest of his life in prison. Given a life expectancy of around 10 to 15 years, it inevitably will be significantly shortened by years of solitary confinement. The real question is not what he’ll get, but what, if anything, he says.
Reports indicate he will use his right of allocution to claim his innocence. In fact, late last night he released an audio file to the press wherein he claimed that “In my heart, I know I did not do these alleged disgusting acts. My wife has been my only sex partner. That was after marriage.”
Unlike cases built primarily or exclusively on forensic evidence where botched investigations all too often lead to erroneous convictions, Sandusky’s claim of innocence will serve no purpose other than to largely defeat any mitigating evidence that may be introduced, and his statement released yesterday will only serve as impeachment evidence. Why, for example, did he state that “Maybe (the case) will help others; some vulnerable children who could be abused, might not be because of all the publicity”? Sacrificial lamb or a back-handed admission of guilt? Neither is helpful to him and persisting in his innocence will likely raise the ire of the Court.
Which raises the point as to when should an offender exercise his right of allocution. Judges have indicated, especially in sex offense cases, that they desire to hear offenders not just admit guilt and take “full responsibility,” but show remorse. But where, as here, victims also are expected to testify, a client’s moment of catharsis can result in additional years of confinement. And Sandusky’s sentencing effectively is his court of last resort inasmuch as any appeal, even if successful, may not come earlier enough to win him his freedom.
So, why then did Sandusky essentially allocute in public when his every word in court will be duly recorded? Perhaps he is thinking over the wisdom of claiming innocence in open court in front of his victims and the judge, or he’s testing the waters of public reaction. More likely this could be the result of years of rationalization that has formed a permanent cognitive dissonance. It is not uncommon, after all, for sex offenders to suffer from sometimes profound mental illness, which often can speak to mitigation or alternatives to exclusive incarceration.
But whatever the reason why, as the old saying goes, if you want to get out of a hole, stop digging. Sandusky would be wise let his audio tape continue to do his talking, and waive his right of allocution.
Some prior posts on Sandusky case:
- Jerry Sandusky found guilty on 45 counts
- "Jerry Sandusky Could Get Pension in Prison Unless Bill Passes"
- Upcoming Sandusky sentencing generates little suspense, but lots of stories
Monday, October 08, 2012
Would any prosecutors throw challenge flag for plea deal cut for sexual misconduct with student?
Though the MLB playoff have me in more of a baseball mood this week, I cannot avoid this football-related AP story about a notable plea deal struck by a former NFL cheerleader. The story is headlined "Ex-Cincinnati Bengals cheerleader pleads guilty to having sex with former high school student," and here are excerpts:
A former Cincinnati Bengals cheerleader pleaded guilty Monday to having sex with her 17-year-old former student while she was a teacher at a northern Kentucky high school, a move that will allow her to avoid jail time.
In a tearful admission in Kenton County Circuit Court in Covington, Ky., 27-year-old Sarah Jones pleaded guilty to sexual misconduct and custodial interference in place of more serious charges as part of a plea agreement with prosecutors. “I began a romantic relationship while he was a student and I was in a position of authority,” Jones said, her voice cracking as her family members wiped their own tears.
Jones said the relationship began in February 2011 when the boy was 17, saying that the two had sex, that she sent him sexually explicit text messages and lied about the relationship to police. The teen had been in Jones’ freshman English class in 2008, and she was his peer tutor in 2010 and 2011 before he graduated at the age of 17 this year, according to Monday’s plea agreement, signed by Jones.
In accepting the plea agreement, Judge Patricia Summe granted prosecutors’ recommendation to sentence Jones to five years of diversion but no jail time, and she won’t have to register as a sex offender. The diversion requires Jones to report to a probation officer and undergo drug tests.
Prosecutors said they were willing to make the deal because the teen, now 18, and his family were uncooperative with them and on Jones’ side. “We feel that it is a just and it is a fair result,” prosecutor Sara Farmer said. “It’s certainly difficult when a victim and his family don’t cooperate by not providing information, but it makes our case a lot harder when they’re actually proactive for a defendant, and in this case, the family was more than supportive of the Jones (family). They were proactive for them.”...
Part of the reason defense attorney Eric Deters said Jones was willing to plead guilty was because Summe had denied his request to keep the text messages that she sent to the teen out of the trial. “They’re embarrassing,” Deters told reporters after the hearing. “They were steamy.”
He also said that now that the teen is 18 years old, he and Jones “are free to be together” and pointed out that they left the courtroom together. Deters declined to discuss details of their current relationship, saying that the pair would discuss it on the “Today” show and “Dateline” on Friday.
He said that Jones will not try out to be a Bengals cheerleader in the future, and that for now, she’s working as a legal assistant in his office. Jones has expressed interest in becoming a lawyer and is studying to take the Law School Admission Test, he said....
Jones’ mother, former school principal Cheryl Armstrong Jones, also pleaded guilty Monday, to a misdemeanor charge of attempted tampering with evidence. She admitted to the judge that she sent the teen a text message telling him to get rid of his phone and also avoided jail time.
As the question in the title of this post suggests, I am curious to know if any prosecutors (or others) are troubled by this plea deal. Because this story gives me little reason to suspect that the defendant here poses any serious threat to the public, I am not especially troubled she was able to cut a sweet plea deal and has appearances now slated for the "Today" show and "Dateline." But perhaps others have a different take on this matter.
Sunday, October 07, 2012
Upcoming Sandusky sentencing generates little suspense, but lots of stories
Jerry Sandusky is scheduled to face sentencing this Tuesday. At this stage, the case holds has seemingly limited suspense; I cannot imagine this serial child molester now could or would get anything less than a functional (if not an actual) life sentence. Still, the high-profile nature of the defendant and his crimes ensures that there will be plenty of press stories about the sentencing. For example, here are some stories from the AP and UPI appearing in many papers today:
Saturday, October 06, 2012
New California sex offender lawsuit challenges local restrictions on access to public parks and beachesAs reported in this new Los Angeles Times article, it is not just local Halloween ordinances being subject to constitutional attack by sex offenders in California (details on the Halloween suit are here and here). This article, headlined "Four Orange County cities sued over sex offender laws," reports on a new and different federal lawsuit going after another popular restriction on sex offender activities. Here are the details of this distinct lawsuit:
A registered sex offender has filed suit against four Orange County cities, challenging the constitutionality of a law that bans sex offenders from using public parks, beaches and even some roadways. The suit is aimed at Costa Mesa, Huntington Beach, Seal Beach and Lake Forest, which have all modeled local ordinances on the county's sex offender law, which bans offenders from entering county parks and other public facilities. It is considered one of the most aggressive sex offender laws in California.
The lawsuit, filed in U.S. District Court, claims the local laws that ban the plaintiff, a registered sex offender, from entering city parks or visiting beaches violate the Constitution and his protected rights under the law. The San Francisco law firm representing the man, identified only as "John Doe" in the lawsuit, said the ban violates his 1st, 5th and 14th Amendment rights.
The lawsuit alleges that the plaintiff, by being banned from entering public property, is unable to peaceably assemble, speak freely, travel via some public roads, receive information and petition the government. The ban also deprives him of his liberties without a fair hearing and prevents him from judicial access, the lawsuit said.
Susan Kang Schroeder, chief of staff to the Orange County district attorney, defended the local laws as constitutional. Fourteen cities in Orange County have now adopted sex offender rules at the urging of the district attorney. "Protecting children from sexual predators, I believe, is one of the most important duties of government," Schroeder said....
The lawsuit asks the courts to permanently stop the four cities from enforcing their bans and declare the laws unconstitutional. The plaintiff was convicted more than 15 years ago, the suit said, and has long since served his sentence and been treated and is now employed and married with children.
Wednesday, October 03, 2012
More on sex offenders' First Amendment challenge to local halloween challenge in CaliforniaIn this post a few days ago, I reported on a notable (and groundbreaking?) legal action against a common local law this time of year being brought in California. Thanks to this new local article, headlined "Calif. Sex Offenders Sue to Overturn Halloween Restrictions," I can provide more information about this intriguing litigation:
An attorney representing five sex offenders who sued a southern Californian city over limits to their Halloween activities said the lawsuit will be the first of several she expects to file over such restrictions. Lawyer Janice Bellucci heads the 18-month-old advocacy group California Reform Sex Offender Laws. On Friday, she filed a lawsuit in federal court claiming that Simi Valley's ordinance violates her clients' First Amendment rights.
The suit seeks a judge's order prohibiting enforcement of the ordinance in Simi Valley, which has 119 registered sex offenders, according to a city report. Bellucci is representing five unnamed sex offenders, three of their spouses and two minor children, she said.
The ordinance, adopted Sept. 10, prohibits registered sex offenders in the Ventura County city of about 125,000 from displaying Halloween decorations, answering the door to trick-or-treaters or having outside lighting after dark on Oct. 31. Simi Valley councilman and LAPD officer Mike Judge said the law is modeled after similar Halloween laws enforced in other California cities, and is meant to protect children....
Registered sex offenders are also required to post signs with on their front doors reading, in 1-inch letters, "No candy or treats at this residence." Those offenders visible to the public on the state's Megan's Law website and convicted of a crime against a child are required to post the sign.
Sixty-seven of the city's offenders are listed on the website, according to a city report; the rest are convicted of misdemeanors and don't have their names on the public list.
Bellucci said the sign-posting requirement was "particularly egregious." "We consider that to be a violation of the U.S. Constitution," Bellucci said Tuesday.
The ordinance both imposes "forced speech" – the sign – and restricts speech by prohibiting Halloween celebrations, she said. "It's similar to Jews in Nazi Germany who had to wear the yellow star on their clothing," Bellucci said.... Her organization intends to begin filing lawsuits to challenge other statutes, she said.
The office of Simi Valley City Attorney Marjorie Baxter said the city had not been served with Bellucci's complaint, so it had no comment as of Tuesday afternoon. Baxter was quoted in the Ventura County Star, which first reported on the lawsuit, as saying: "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously."
Those who are convicted of violating the ordinance would be guilty of a misdemeanor and subject to a fine of up to $1,000 and/or up to six months in county jail, according to a city staff report. California residents who have been convicted of or pleaded no contest or guilty to a sex-related offense must register with local public safety authorities. Offenders are listed on the registry for life.
Recent related post:
Monday, October 01, 2012
En banc Fifth Circuit clarifies its standard for restitution in child porn downloading cases
The Fifth Circuit has a huge and potentially hugely consequential en banc ruling today in In re Amy Unknown, No. 09–41238 (Oct. 1, 2012) (available here), concerning the standards for restitution awards in child pornography downloading cases. Here is how the lengthy opinion for the majority begins and ends:
The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.
This en banc court holds that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We VACATE the district courts’ judgments in both of the cases below and REMAND for further proceedings consistent with this opinion....
For the reasons above, we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse. We VACATE the district courts’ judgments below and REMAND for proceedings consistent with this opinion
The bold in the last paragraph above was added by me, in part to highlight why this issue seems now destined for a cert grant in some case before too long.
Saturday, September 29, 2012
Sex offenders claim First Amendment violated by local Halloween ordinance targeting themThe Ventura County Star has this interesting article, headlined "Lawsuit seeks to block Simi Valley's Halloween sex offender ordinance," reporting on a notable (and groundbreaking?) legal action against a common local law this time of year. Here are the details:
A federal lawsuit filed Friday seeks to block enforcement of Simi Valley's new Halloween sex offender ordinance, contending it is unconstitutional. The lawsuit alleges that the ordinance violates the First and 14th Amendments because it "suppresses and unduly chills protected speech and expression."
The suit was filed in U.S. District Court in Los Angeles by five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. They are identified only as John and Jane Does.
It's the first time one of the Halloween sex offender laws passed by a number of California cities, including Ontario and Orange, has been challenged in court, said Santa Maria attorney Janice Bellucci.
Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit, which also seeks unspecified financial damages, on behalf of the plaintiffs.
Simi Valley City Attorney Marjorie Baxter said the lawsuit is groundless. "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously," she said.
The Simi Valley City Council adopted the law — the only one of its kind in Ventura County — to prevent sex offenders from having contact with trick-or-treating children on Halloween. Championed by Mayor Bob Huber, a lawyer who is seeking re-election in November, the measure applies to the several dozen convicted child sex offenders who live in the city and are listed on the Megan's Law website.
The ordinance requires the offenders to post signs on their front doors saying, "No candy or treats at this residence." It also bars them from opening their doors to children on the holiday, displaying Halloween decorations or having exterior lighting on their property from 5 p.m. to midnight on Oct. 31....
The lawsuit argues that the ordinance prohibits "a discrete and socially outcast minority from expressing any publicly viewable celebration of Halloween" and "forces this group to impose a burden on their own safety and that of any person who resides with them by requiring them to turn off all exterior lighting at their residences on Oct. 31 every year." The ordinance also publicly shames the sex offenders "by mandating that they place a large content-specific sign on their door every year," the lawsuit contends.
But Councilman Mike Judge noted at the council's Aug. 20 meeting that the ordinance was limited to registered sex offenders on the Megan's Law website, which publicly lists their identities. "We're not branding them," Judge, a Los Angeles police officer, said. "They're already branded."
Bellucci argues that there are no reported instances of a child being molested while trick-or-treating. According to her group's website, the organization is "dedicated to restoring civil rights for those accused and/or convicted of sex crimes."
Monday, September 24, 2012
Notable contrasts between Irish and US sentencing responses to child porn possession offensesThe Irish Examiner has this notable new piece, headlined "Sentences contrast in Ireland and US," discussing the very different punishment schemes for child porn downloaders in two not-so-different nations. Here is how the piece gets started:
What is an acceptable sentence for the possession of child pornography? That’s downloading and viewing the images, not being physically present when the abuse was carried out and the images made.
Consider two cases which progressed through the courts on opposite sides of the Atlantic within a year of each other.
In May, a British national, Simeon Betts, appeared in court in Ireland charged with a stash of child pornography which included 50 videos. The material found on three laptops included the rapes of children as young as four, and gardaí said the level of abuse was of the "upmost scale". Adult males were filmed raping the children, and in one instance an animal also featured in the abuse. For the possession of such sickening material, Betts, aged 45, was sentenced at Limerick Circuit Court to four years in prison, with the final two years suspended.
Now consider the case of Daniel Enrique Guevara Vilca, a 26-year-old who appeared in a Florida court room in November. Vilca had been caught with a significant stash of images — he faced 454 counts. Some of the videos and pictures showed boys aged between six and 12 years engaged in sexual activity with adults and each other. For possessing the images, Vilca was sentenced to life in prison without the possibility of parole....
These two cases show the extremes in which different jurisdictions view the crime of child pornography — and how the leniency or severity are both subject to significant scrutiny among their populations.
In America, the US Sentencing Commission is reviewing the sentencing guidelines for the crime. A survey of the country’s federal judges even found that 70% thought the sentences were too high. Many possession offences in the US carry a minimum tariff of five years and the average sentence handed down is seven years.
Here, sentencing for child pornography crimes falls under the Child Trafficking and Pornography Act, 1998. That legislation states that, for producing or distributing child pornography, the maximum sentence is 14 years in prison. For possession, the maximum sentence is five years.