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.

March 22, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

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."

March 19, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (42) | TrackBack

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:

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

Thursday, February 13, 2014

"Is possession of child pornography a crime worthy of years in prison?"

The question in the title of this post is the sub-headline of this new Jacob Sullum piece at Reason.com. The piece starts by talking through the recent Paroline argument concerning restitution punishments for child porn downloaders and then moves to these comments:

As a result of congressional edicts, the average sentence in federal child porn cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission.

Under federal law, receiving child pornography, which could mean viewing or downloading a single image, triggers a mandatory minimum sentence of five years.  Federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common, such as using a computer, swapping photos, or possessing more than 600 images (with each video counted as 75 images).  The maximum penalty is 20 years....

When the Supreme Court upheld bans on possession of child pornography in 1989, its main rationale was that demand for this material encourages its production, which necessarily involves the abuse of children.  But this argument has little relevance now that people who look at child pornography typically get it online for free.  Furthermore, people who possess "sexually obscene images of children" — production of which need not entail abuse of any actual children — face the same heavy penalties.

Another rationale for criminalizing possession of child pornography, mentioned by the sentencing commission in its report, is that these images "validate and normalize the sexual exploitation of children."  Yet the same could be said of explicit arguments in favor of sex with minors, which nevertheless enjoy First Amendment protection.

Even if you agree that possessing child pornography should be a crime, the current penalty structure is clearly out of whack.  Something is seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children.

February 13, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Monday, February 10, 2014

Registered sex offender makes case against sex offender registry

Guy Hamilton-Smith, a registered sex offender and law school graduate who has so-far been denied the opportunity to become a member of the bar, has this new op-ed in the Lexington Herald-Leader under the headline "Sex-offender registry misguided thinking." Here are excerpts:

I am a sex offender. I know well the tremendous power of those words. In 2007, I pled guilty to possession of child pornography.

Nothing here is meant to defend what I did or to minimize the gravity of my actions. I had a major problem with pornography, and I was far too deep in denial and too scared to reach out to anyone.  Help eventually came when my girlfriend discovered child porn on my computer and went to the police.  I was then and remain grateful to her for taking that step.

As I went through the legal process after my arrest, I developed a keen interest in the law, and a sincere desire to advocate on the behalf of those who are hated, who are lost, and who are forgotten.  With luck, I managed to win acceptance to law school despite my conviction.  I worked harder than I'd ever worked in my life, because I knew I'd have a lot to do to overcome my past.  I did well in school, graduated, secured a job at a law firm after disclosing my past, and applied to take the bar exam.  Recently, the Kentucky Supreme Court ruled that I will not be allowed to take the bar exam until I am no longer on the sex-offender registry, which will be another 18 years from now.

But the point I want to make is not about me. It isn't about my case. I am not here to say whether the court's decision was right or wrong. The principles at play are much larger than me.  

Strange as it may sound coming from a felon and a sex offender, I believe in the necessity of punishment.  How else, after all, are people supposed to make amends for the harm that they cause? ... I believe in many ways that my life was saved by virtue of my arrest.  I am sensitive to the fact that my crime, and the crimes of others on the sex offender registry, are serious. I do not mean to denigrate the plight of victims, as I was also a victim at one point in my own childhood.

My point, rather, is simply this: punishment that becomes unmoored from considerations of proportionality, redemption and reintegration becomes poison, and we — society, victims and perpetrators — become diminished by it.

Nowhere is this more evident than the sex-offender registry.  Those who find themselves constituents of the registry are routinely and uniformly denied the same second chance afforded to so many other criminal defendants after they have served their sentences.  

The impetus behind the registry is the popular belief that sex offenders always commit new sex crimes.  That view, however, is at odds with data from the Department of Justice and others....

I know that I am not a sympathetic figure by virtue of my crime.  I know that I can never change the past or undo the things that I have done.  My hope here is that we can have a discussion in this country that is long overdue — namely, what it is that we hope to achieve from our system of criminal justice.

February 10, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Sunday, January 26, 2014

"Sex offender fights registry by registering his registerers"

The title of this post is the headline of this interesting Washington Post article discussing an efforts of, and challenges facing, one registered sex offender seeking to showcase the realities of being a registered person.  Here are excerpts:

If nothing else, Dennis Sobin is not your typical ex-con.

At first glance, he looks like the model returning citizen: After serving more than a decade in prison, Sobin, 70, returned to the District, started a gallery for prison art and ran for mayor. His nonprofit organizations have received grants from George Soros’s Open Society Institute and the National Endowment for the Arts and, in 2010, he appeared on the cover of the Washington City Paper .

But Sobin is also sex offender. A former pornographer who’s appeared on “The Sally Jesse Raphael Show” and “Geraldo,” Sobin was convicted of sexual performance using a minor in 1992 in Florida. So, every 90 days, Sobin must report to D.C.’s Court Services and Offender Supervision Agency (CSOSA), and his photo appears on D.C.’s public registry.

Sobin thinks it’s unfair. So, for his latest act, Sobin has decided to protest his treatment by creating his own online data base and registering the people who monitor him at the sex offender registry. Now, in an unusual case that will be heard on Tuesday, a D.C. Superior Court judge will decide whether a court employee can file a civil protection order to prevent Sobin from posting her photo on his anti-registry registry, www.idiotsregistry.info, and distributing her photograph on fliers.

“Here at www.IdiotsRegistry.info you will find the names of politicians and public figures who have encouraged the creation of, or have refused to denounce, government registration websites that target citizens for harassment,” Sobin’s site reads. “In the tradition of Nazi registration of Jews and Gypsies and the Salem lists of alleged witches, modern government registries are unfair and un-American.”

Stephanie Gray, who works for CSOSA, is asking the court to force Sobin to remove her picture from the site. Sobin, who was under Gray’s supervision until she got another position at the agency, did not mince words when criticizing Gray. “Face of Evil: ‘Registry Specialist’ Stephanie Gray shoots icy stare,” Sobin posted under a photo of Gray. “Gray requested and received a transfer due to the guilt she felt in her loathsome job.”

Sobin said his action was inspired by Supreme Court rulings which hold that sex offender registries are not punitive and do not constitute double jeopardy. “If it’s not punishment to be on a list, we thought we’d put the people who do the registering on a list,” he said.

Gray took another view. “He writes derogatory information about me,” Gray wrote in her request for a protection order. “I have been move[d] from the Sex Offender Registry and he continues to trash the bldg. where I am with pictures he has taken of me without me knowing.”

Should Sobin prevail,“It would send a message to all sex offenders in the District of Columbia,” according to a petition filed by Gray’s attorneys which accused Sobin of stalking. “Convicted criminals required to report to CSOSA could harass them with impunity under the guise of protected political speech.” Gray, through her attorneys, declined comment, as did CSOSA.

Sobin has found an ally: the American Civil Liberties Union, which filed an amicus brief on his behalf. “We think there are some significant First Amendment issues,” said Art Spitzer, legal director of ACLU’s D.C. office, who pointed out that Gray is not alleging physical harm. “Domestic violence laws are supposed to protect people from crimes, but not hurt feelings. . . . People are allowed to embarrass each other and make each other feel bad when making a political point.”...

Should Sobin win, Gray’s civil protection request will be denied, but D.C.’s sex offender registry will not be affected. But, Sobin said, he’ll have struck a blow for free speech and shown the flawed logic behind the registry — even if there’s collateral damage.

“Ms. Gray happens to be a very sensitive, compassionate individual who is on the registration list,” Sobin said. “It’s a war. . . . They’re involved in this registration thing and unless they move themselves out, we’re going to oppose them.”

January 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, January 22, 2014

"Court struggles with restitution for child porn"

The title of this post is the headline of this AP report on this morning's SCOTUS oral argument in Paroline v. United States.  The AP article highlights the Justices' difficulties sorting through all the challenging competing issues in a case that regular readers know I find fascinating.

Similarly, Lyle Denniston at SCOTUSblog has an effective summary of today's argument in this new post which starts and ends this way:

The Supreme Court left no doubt on Wednesday that it is willing to do its part to make sure that victims of child pornography get paid money to offset the harm done to them. But it also found itself very much in doubt about just what that part would be. The answer in the case of Paroline v. United States may depend upon how the Court understands two words: “apportion” and “contribution.”...

The hearing ended where it began: in unresolved complexity.

I hope to find time in the next few days to read carefully and comment upon the substance of the argument today, and everyone can find now at this link the full transcript.

A few (of many) prior posts on Paroline and child porn restitution issues:

January 22, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Tuesday, January 21, 2014

"'Friend to the Martyr, a Friend to the Woman of Shame': Thinking About the Law, Shame and Humiliation"

The title of this post is the title of this new paper by Michael L. Perlin and Naomi Weinstein now available via SSRN. Here is the abstract:

This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior.  The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially -- although certainly not exclusively -- in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person..."

Humiliation and shaming, we believe, contravene basic fundamental human rights and raise important constitutional questions implicating the due process and equal protection clauses.  Humiliation and shaming practices include “scarlet letter”-like criminal sanctions, police stop-and-frisk practices, the treatment of persons with mental disabilities in the justice system, and the use of sex offender registries.  Humiliation and shame are detrimental in the ways that lead to recidivism, inhibit rehabilitation, discourage treatment, and injure victims.  They also directly contravene the guiding principles of therapeutic jurisprudence, especially in the context of its relationship to the importance of dignity in the law, and potentially violate international human rights law principles as well.

In this paper, we will explore how humiliation and shaming are bad for all participants in the legal system, and bad for the law itself.  We will urge that humiliating and shaming techniques be banned, and that, this ban will enhance dignity for the entire legal system and society as a whole.  First, we consider the meaning of shame and humiliation.  Then, we briefly discuss principles of therapeutic jurisprudence (TJ) and its relationship to the significance of dignity, and then consider recent developments in international human rights law, both of which are valuable interpretive tools in this conversation. Next, we consider how the United States Supreme Court has considered these concepts in recent cases.  Following this, we consider several relevant areas of law and policy from the perspective of how overt shaming is employed: scarlet letter punishments, use of the police power, treatment of institutionalized persons with mental disabilities and elders, and sex offender registry law.  We then, using a TJ filter and drawing on international human rights law principles, examine why these shaming tactics are contrary to bedrock principles of the legal system: the mandates to honor dignity, to minimize recidivism, and to enhance rehabilitation.

January 21, 2014 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Monday, January 20, 2014

Explaining why I am rooting so hard for "Amy" in Paroline

Oral argument in the fascinating Supreme Court case of Paroline v. United States now is just a couple of days away, and this new AP article provides effective background on the case while also helping to spotlight some reasons I am rooting hard for "Amy" and her advocates to prevail:

The case being argued at the Supreme Court on Wednesday involves a Texas man who pleaded guilty to having images of children engaged in sex acts on his computer.  Doyle Randall Paroline is appealing an order holding him responsible for the full amount of losses, nearly $3.4 million, suffered by the woman known as Amy.  Of the several hundred incriminating images on Paroline's computer, just two were of Amy.

Advocates for child pornography victims say that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates say.

Thirty-four states, dozens of victims' rights and child advocacy groups, local prosecutors and members of Congress are urging the court to uphold the ruling against Paroline by the New Orleans-based 5th U.S. Circuit Court of Appeals.

No one has intervened on Paroline's behalf. But his lawyer, Stanley Schneider of Houston, said in court papers that there is no link between the restitution ordered by the appeals court and Paroline's conduct. "An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate," Schneider said....

The Obama administration is trying to steer a middle course. Solicitor General Donald Verrilli Jr. said the government agrees with Amy that her injury comes from the widespread viewing on the Internet of the assaults by her uncle. "The real question is whether ... a court must impose all of Amy's aggregate losses on each defendant. On that issue, Amy and the government take different views," Verrilli told the court. The administration said the correct answer is greater than zero and less than the entire amount and said trial judges should make the determination....

Regardless of the outcome of the court case, Congress could change the law. The U.S. Sentencing Commission recommended that lawmakers consider doing just that to eliminate confusion among federal judges about the right way to calculate restitution....

Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy.... Courts so far have awarded restitution in 182 cases and Amy has collected $1.6 million. Of that total, $1.2 million came from one man.

Typically, the court-ordered awards and the amounts collected have been much smaller, as little as $50 in one case, according to Justice Department records. Many judges have ordered no payments at all, Marsh said. The restitution law does not allow Amy to receive more than the lifetime estimate of her losses, Marsh said. But until the 5th Circuit ruling, Marsh said, "She has been forced to go around the country endlessly seeking out defendants with assets. It's endless, and it takes a toll on the victim."

If upheld, the ruling would change the equation.  Courts would not have to determine exactly how much harm any one defendant caused Amy.  Instead, all defendants would be liable for the entire outstanding amount, raising the possibility that a few well-heeled people among those convicted might contribute most, if not all, of the remaining restitution. Marsh said such an outcome would be just, and wealthy defendants could fight among themselves about who should pay what. "It's really about shifting the burden from the innocent victim to the people who are responsible," Marsh said.

Long-time readers know that I take a consequentialist view on most sentencing and punishment issues, and I strongly believe better consequences will prevail if all persons convicted of unlawfully downloading Amy's picture are all jointly liable for the full amount of her documented economic losses.  As the AP article suggests, if Amy wins then only the richest porn downloaders will end up paying her the most money in restitution.  But if DOJ's vague approach prevails, the richest porn downloaders will likely end up spending lots of money on lawyers in order to aggressively argue at sentencing that they should not have to pay much or any restitution to Amy or other victims.

More broadly, I actually think better consequences can and will ultimately prevail for future federal defendants convicted of unlawfully downloading child porn if Amy prevails in this case.  This is because I think, in light of the instructions of 18 USC 3553(a), federal judges would in the future be fully justified (and arguably even required) to generally impose a shorter federal prison sentence on a child porn defendant if and whenever that defendant is to be held jointly liable for the full amount of documented economic losses.  (Intriguingly, Doyle Randall Paroline himself got sentenced only to two years in prison, while the average downloader of child porn prosecuted in federal court these days gets a prison term of nearly a decade.)    

In her reporting and commentary on this issue (noted here and here), Emily Bazelon has rightly suggested that having child porn downloaders pay for their crimes through full restitution award (rather than through very lengthy prison terms) makes for better outcomes not only for victims but also for society.  As she has explained:

[J]oint and several liability ... works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy [and other like victims], it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

Because DOJ is not completely on Amy's side, and because some of the more conservative Justices have in the past expressed some constitutional concerns about some victims getting big awards in tort suits, I do not think it a certainty that Amy will prevail in this matter.  But because this is technically a statutory interpretation case, and because the briefs on Amy's side have done such an effective job highlighting reasons to think Congress would want Amy to prevail in this battle of equities, I think she has a pretty good chance to prevail.

A few (of many) prior posts on Paroline and child porn restitution issues:

January 20, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (41) | TrackBack

Thursday, January 16, 2014

Orange County DA hoping California high court will rescue local sex offender park ban

As reported in this local article, headlined "D.A. will take sex-offenders fight to state Supreme Court," a California prosecutor is planning to seek review in the Supreme Court of a lower state appellate court ruling that struck down local laws banning sex offenders from parks.  Here are the details:

The Orange County District Attorney's Office plans to go to the California Supreme Court to defend local ordinances that ban registered sex offenders from city parks.  A state appeals court on Friday struck down an Irvine law that barred registered sex offenders from city parks without written permission from police, a ruling that will become legal precedent. The court also struck down a similar Orange County law.

About a dozen other Orange County cities passed similar ordinances banning sex offenders from parks at the urging of District Attorney Tony Rackauckas.  Rackauckas helped craft Orange County's law with county Supervisor Shawn Nelson. “Protecting children from dangerous sex offenders is an ongoing war, and we believe that it's one of the most important jobs we have at the D.A.'s (office),” said Susan Kang Schroeder, Rackauckas' chief of staff.

Janice Bellucci, president of California Reform Sex Offender Laws, said of the pending appeal. “I think they're foolish to do it. They're wasting taxpayer money.”  Bellucci said her organization will urge Orange County cities that adopted similar legislation to pull the laws off their books or face a lawsuit.  

Opponents criticize the ordinances as overly broad and an infringement on civil rights.  They are “unenforceable,” Bellucci said.  “These ordinances give a false sense of security to parents. They don't really protect their children from those who are most likely to assault their children,” Bellucci said....

The Orange County ordinance, which became a model for local cities, made it a misdemeanor for any registered sex offender to enter a county park, beach or other recreational area without permission from the Orange County Sheriff's Department. Those convicted would face six months in jail or a $500 fine.

In Friday's ruling, a panel of judges said state laws regulating sex offenders pre-empt any local ordinances.  State law has long overseen sex-offender registration, the opinion said. State law already regulates where sex offenders may live and also identifies certain sex offenders who must be monitored by law-enforcement via GPS.

Offenders whose victims were younger than 14 may only enter parks where children gather with permission from their parole agents. The laws create a comprehensive system regulating sex offenders' daily lives, the court said.  No outright ban on sex offenders in parks is included in state law, an omission that “manifests a legislative determination that such a ban is not warranted,” the court said. Any such local laws undermine the decisions of the Legislature, the court said.

January 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, January 06, 2014

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

Cross-posted at PrawfsBlawg

January 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Friday, December 20, 2013

Just how many prominent, successful men are child porn fiends?

The question in the title of this post has been one kicking around in my head since the breaking of last week's news that Senator Lamar Alexander’s chief of staff arrested on child pornography charges (basics reported here). Days later, this child porn story broke in my town concerning a 23-year veteran of the Columbus police force admitting to collecting child porn for a decade. With those stories fresh in mind, I came across this morning this disturbing collection of headlines and stories concerning other prominent, successful men getting sentenced (disparately?) for child porn offenses:

December 20, 2013 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Saturday, December 14, 2013

New guidelines for sentencing sex offenses promulgated in the UK

This notable new story from across the pond, headlined "Sex offences sentencing overhaul: More emphasis on long-term impact on victims as celebrities have fame used against them," highlights that sentencing rules in other nations also often get ratcheted up following public concern about too lenient sentences in high-profile cases. Here are the basics:

Celebrities who commit sex-offences could see their public image used against them when being sentenced as part of an overhaul of decade-old sentencing guidance for judges in England and Wales. Sex-offenders who are considered to have abused their position of power may be handed longer jail sentences when the guidelines come into effect in April 2014.

Previous “good character” may be considered as an aggravating factor when it has been used to commit a sexual offence, new guidelines drawn up by the Sentencing Council said. The guidelines cover more than 50 offences including rape, child sex offences and trafficking and focus more on the long-term and psychological impact on victims than the previous 2004 guidelines.  They also introduce a higher starting point for sentences for offences such as rape of 15 years.

The new guidance was drawn up by the Sentencing Council after a public consultation and research was undertaken with victims groups, medical practitioners, police, NGOs, magistrates and judges. “Across the justice system, changes have been made to ensure that the alleged offenders' behaviour and the context and circumstances of the incident are scrutinised, rather than the credibility of the victim,” Chief Constable David Whatton, national policing lead for violence and public protection, said....

The guidelines come following a series of high-profile sex offence cases, including revelations about disgraced TV presenter Jimmy Savile, that lead to high numbers of sex attack victims coming forward.  Cases involving grooming gangs in Rochdale and Oxford separately raised questions about social care and attitudes held towards victims....

While the Sentencing Council can recommend a starting point, offenders can still only receive the maximum sentence available at the time the offence was committed.

December 14, 2013 in Advisory Sentencing Guidelines, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, December 11, 2013

Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry

This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts.  Here are the basics:

The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.

The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.

In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....

In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....

The court also said the board is required to ensure that its guidelines are based on "the available literature."

"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.

I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.

December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Monday, December 09, 2013

Ins't home confinement for only three months and a small fine insufficient punishment for a felony false imprisonment charge?

The question in the title of this post is my reaction to this new CNN report headlined "Ex-San Diego Mayor Bob Filner sentenced to home confinement, fines."  Here are the details:

Former San Diego Mayor Bob Filner was sentenced Monday to 90 days in home confinement, three years probation, and a series of fines totaling about $1500 as part of a plea deal.

The 71-year-old pleaded guilty in October to kissing or grabbing three women at campaign events or at City Hall -- one a felony false imprisonment charge, the other two misdemeanor battery charges.  The three women were among 19 who accused him of offensive behavior during his tenure as mayor and as a congressman....

GPS monitoring will track his whereabouts during his confinement.  He'll be allowed to go out for medical and therapy appointments, religious services, and meetings tied to his probation.  He'll also be allowed to leave his apartment but stay within the apartment complex....

[T]he prosecution said Filner's behavior harmed the women and the city. Referring to the three women as Jane Does 1, 2, and 3, the state said Filner humiliated, scared, embarrassed, sexualized and devalued them.  Prosecutors also noted that after taking part in two weeks of treatment earlier this year, Filner still denied his crimes "and insisted that he was the victim of a lynch mob."

Filner's attorneys said they did not dispute any of the facts stated by the prosecution. None of the victims chose to be in court for the sentencing.

The felony charge said Filner used force to restrain a woman at a fund-raising event March 6. The misdemeanor charges say he kissed a woman on the lips without her consent at City Hall on April 6 and grabbed a woman's buttock after she asked to have her picture taken with him at a rally on May 25....

Under the plea deal, which was announced in October, Filner would be prohibited from ever seeking or holding public office again, the attorney general's office said.  Filner also would not be able to vote, serve on a jury or own a firearm while on probation. Filner also will have to give up pension credit for his time in the mayor's office after March 6, the date of the first offense.

I am not intimately familiar with all the details of all the unlawful intimate and too-familiar behavior of the former mayor of San Diego. But the fact that this plea deal included a felony count proposed by state prosecutors and accepted by the state court judge suggests that many responsible folks think Filner should be foreover branded a felon. In light of that conclusion, I have a hard time seeing the "slap on the wrist" punishment here to be reasonably sufficient, especially if prosecutors had solid evidence that Filner abused more than a dozen women and that "Filner humiliated, scared, embarrassed, sexualized and devalued" his many victims.

I am not sure if this (seemingly too) lenient sentence for Filner was baked into the plea deal or the result of a sentencing judge not being too troubled by Filner's many crimes.  Whatever the reality, if the victims truly suffered the way the prosecutor asserted, I am sorry for them that they were not there to speak at Filner's sentencing and that their harm may seem disvaluaed by this outcome.  That said, perhaps many of Filner's victims are mostly interested in a huge tort payday, so maybe at least some of them are content with Filner having resources to pay them in a civil suit rather than a huge fine to the state as part of his punishment.

December 9, 2013 in Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, December 02, 2013

Another preview of Paroline via the New York Times

As I noted in this post a few weeks ago, oral argument in the fascinating Supreme Court case of Paroline v. United States is not until January.  But the parties' opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page, already provide a full review of the challenging issues that restitution sentences for child porn downloading victims presents for the Justices.   Adam Liptak in this new New York Times piece, headlined "Evaluating the Liability of Viewers of Child Pornography," effectively reviews the issues and arguments now before the Justices in Paroline:

The notices arrive almost every day. They tell a young woman named Amy, as she is called in court papers, that someone has been charged with possessing child pornography.  She was the child.  “It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,” Amy, then 19, wrote in a 2008 victim impact statement. “It’s like I am being abused over and over and over again.”

Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her.  Images of Amy being sexually assaulted by her uncle are among the most widely viewed child pornography in the world.  They have figured in some 3,200 criminal cases since 1998.

Amy is notified through a Justice Department program that tells crime victims about developments in criminal cases involving them.  She has the notifications sent to her lawyer. There have been about 1,800 so far.  Her lawyer often files a request for restitution, as a 1994 law allows her to do.  Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s losses are in most ways beyond measure, but some of them can be calculated in dollars.  She has found it hard to hold down a job. She needs a lifetime of therapy. She has legal bills. Her lawyers say it adds up to about $3.4 million.  The question for the justices is how to allocate that sum among the participants in the sordid marketplace for pictures of her.

One of those men is Doyle R. Paroline, who was caught with 280 images of children, including toddlers, being sexually abused.  Two of the pictures were of Amy. The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million....

Mr. Paroline was sentenced to two years in prison, but the trial judge, Leonard Davis, did not order him to give Amy anything.  The link between Amy’s losses and what Mr. Paroline did, Judge Davis said, was too remote.  The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it too much, the court said, relying on the legal doctrine of “joint and several” liability....

Mr. Paroline said the ruling was deeply unfair.  “An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate to the offense conduct,” he told the Supreme Court.  Requiring him to seek payment from his fellow sex offenders, he added, “would create a procedural nightmare.”

Amy’s lawyers countered that it should not be her burden to pursue her abusers over “decades of litigation that might never lead to a full recovery.”  She has received restitution in 180 cases so far, she told the justices, and has recovered a little more than 40 percent of her losses.

The Justice Department took a middle ground before the Supreme Court, saying that Amy deserved something from Mr. Paroline, but that $3.4 million was too much.  The right amount, the department’s lawyers said, was “somewhere between all or nothing.” They did not specify what Mr. Paroline’s share might be, saying the trial court should decide. 

A few prior posts on Paroline:

December 2, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, November 26, 2013

Intermediate NJ appeals panel upholds broad restriction on released sex offender access to social media websites

As reported in this AP article, headlined "NJ panel: Sex offenders can be kept off Facebook," a New Jersey appeals panel handed down today a notable opinion upholding a notable restriction on computer use by released sex offenders. Here are the basics:

A New Jersey appeals court has ruled that paroled sex offenders can be barred from Facebook, LinkedIn and other online social networks.

Two offenders had gone to court to challenge that restriction, saying social networks are important ways to get news, information and find business opportunities.

However, a three-judge panel ruled Tuesday that the offenders can be kept off social network as a term of parole. The judges said they agree that the networks are an important facet of modern life, but said there is a good reason to keep convicted sex offenders off them. "The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior," Judge Jack Sabatino said in his opinion. He noted that the parolees can still get news and buy products online.

The ruling referenced in this article is partially available at this link, and here are excerpts from the start of the opinion:

Appellants J.B., L.A., B.M., and W.M. are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board (the "Parole Board") as of fenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). Represented by the same attorney, appellants challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them. Similar conditions have been imposed on other offenders subject to CSL or PSL, although appellants have not filed a class action.

The terms of supervision mainly being challenged in these related appeals are (1) the Parole Board's restrictions on appellants' access to social media or other comparable web sites on the Internet; and (2) the Parole Board's authority to compel them to submit to periodic polygraph examinations....

For the reasons that follow, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges should they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

I expect the defendants here may be eager to appeal this matter to the NJ Supreme Court and maybe even the US Supreme Court, especially since it appears that the internet use restrictions upheld here are set to last a lifetime.  And though this case might not be the best vehicle, I suspect that SCOTUS will eventually have to consider what restrictions can be poperly place on internet access for released offenders.

November 26, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, November 22, 2013

Gearing up for Paroline with a short "Child Pornography Restitution Update"

Through oral argument in the fascinating Supreme Court case of Paroline v. United States is still a couple months away, it is not too early to start thinking about the range of challenging issues restitution sentences for child porn downloading victims presents for the Justices.  One way to gear up, of course, is to review the parties opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page.

Another effective way to start gearing up would be to read this short piece available now on SSRN titled simply ""Child Pornography Restitution Update" and authored by Mary Leary and James Marsh (who represents a victim seeking restitution). Here is the abstract:

This article discusses the issue of restitution for victims of child pornography cases. It specifically explores the legal background to this issue, relevant court opinions, and implicated statutes (18 U.S.C. §§ 2259; 3771) regarding the ability of child pornography victims to obtain restitution from those who possessed child pornography images, also known as images of child sexual abuse. The article addresses the current circuit split and pending Supreme Court case, Paroline v. United States. In addition to an analysis of the judicial opinions, this piece also discusses several policy initiatives available to address the issue.

November 22, 2013 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack