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:
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
- Explaining why I am rooting so hard for "Amy" in Paroline
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.
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:
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- "Rethinking Restitution in Cases of Child Pornography Possession"
- "The Case for Full Restitution for Child Pornography Victims"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
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.
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
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:
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.
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.
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:
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
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
Wednesday, November 20, 2013
"Sex offender offers to castrate himself for lighter sentence"
The title of this post is the headline of this new Boston Herald article, which gets started this way:
A convicted child-sex offender facing more than 40 life sentences in a rash of alleged rapes and assaults at a Wakefield child-care center is offering to undergo a “physical castration” to reduce his sex drive in return for a “massive” reduction in his sentence, his lawyer said.
John Burbine, 49, a Wakefield resident before he was arrested in September 2012, is asking prosecutors or the judge in his case if they would be willing to cap his sentence at the legal minimum of 15 years in prison if he agrees to voluntarily undergo a castration “preventing production of testosterone,” his lawyer William J. Barabino said. “We would do it only if it results in a massive reduction in sentence,” Barabino told the Herald last night.
He told the judge in a court motion the procedure is effective in producing “a drastic reduction or complete discontinuation in sexual urges and sexual function, due to the inability to produce testosterone,” and is “an accepted method of treating certain types of abnormal sexual behavior, such as pedophilia.”
Barabino will make his pitch this morning in Middlesex Superior Court. He said prosecutors have already indicated informally they are not interested in the deal.
The Wakefield defense lawyer said he expects a formal reply in court and still hopes the judge might consider authorizing the proposal. His actual motion calls for a therapist to ensure Burbine can make an informed decision on the medical procedure.
Tuesday, November 19, 2013
"Sex Trafficking Court Holds Hope for the Oft-Blamed"
The title of this post is the title of this notable short essay by Mary Leary now available via SSRN. Here is the abstract:
This opinion piece which appeared in the National Law Journal explores the State of New York’s Human Trafficking Initiative. This Initiative creates nine Human Trafficking Courts which seek to identify arrestees who may, in fact, be victims of human trafficking and provide them with necessary services. The column discusses the benefits of this approach to sex trafficking and encourages other jurisdictions to pursue similar models. Of particular note is the multi-disciplinary approach to this complex issue as well as the initiative’s recognition that each case must be reviewed on its own merits. The piece concludes with a word of caution regarding the need to work out important details of the scope of the program.
November 19, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack
Tuesday, November 12, 2013
Sixth Circuit upholds dismissal of indictment with new mandatory minimum charge based on on prosecutorial vindictivenessLast week, in a decision I have been meaning to blog about given recent blog debate over federal prosecutorial discretion, the Sixth Circuit upheld a district court's decision to dismiss an indictment in a child pornography downloading case based on prosecutorial vindictiveness. The ruling in US v. LaDeau, No. 12-6611 (6th Cir. Nov. 4, 2013) (available here), highlights my concern about the potential misuse of federal prosecutorial charging discretion, while also revealing that judges are not without some mechanisms to try to check prosecutoral abuses of power. Here is how the unanimous panel ruling in LaDeau starts:
Defendant Daniel Bruce LaDeau was indicted on a single count of possessing child pornog raphy, in violation of 18 U.S.C. § 2252A(a)(5)(A). This charge prescribed a sentencing range of zero to ten years’ imprisonment. Subsequently, LaDeau moved to suppress the evidence that he had any such materials in his possession. After the district court granted LaDeau’s motion to suppress, the government sought and obtained a superseding one-count indictment charging LaDeau with a conspiracy offense based on evidence that had been in the government’s possession since before the initial indictment. But rather than charging LaDeau in the superseding indictment with conspiring to possess child pornography, the government chose to charge him with conspiring to receive child pornography — a charging decision that subjected LaDeau to a five-to-twenty-year prison term instead of the previously applicable statutory range of zero to ten years. Defendant LaDeau then moved to dismiss the superseding indictment. The district court agreed with LaDeau that the government’s decision to change to a receipt theory warranted a presumption of prosecutorial vindictiveness, inasmuch as there was a realistic likelihood that LaDeau was being charged with a more serious offense in retaliation for his successful suppression motion. Concluding that the government had not rebutted the presumption of vindictiveness, the district court dismissed the superseding indictment. The government filed this appeal. Because the district court did not abuse its discretion in dismissing the superseding indictment, we affirm.
Thursday, November 07, 2013
State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional
As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders." Here is more:
Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.
Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.
The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.
Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.
In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."
"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."
County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.
Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."
November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack
New Michigan law adds to number of states requiring registered sex offenders to pay yearly feeThis local article report on yet another notable extra bit of punishment now for sex offenders in Michigan. The piece is headlined "Sex Offenders Will Have To Pay To Live In Michigan Under Bill Signed By Gov. Snyder," and here are the details:
Gov. Rick Snyder has signed legislation requiring registered sex offenders living in Michigan to pay an annual $50 fee. The bill, sponsored by Republican Sen. Rick Jones, replaces the system under which sex offenders paid a one-time $50 fee. Snyder signed the bill into law on Tuesday.
The measure only applies to registered sex offenders who are out of prison. Officials say $20 of each fee would go to local law enforcement and $30 would go to the state. If offenders don’t pay the annual fee, they face misdemeanor charges.
Offenders who can’t afford the fee would have the chance to make their case and receive a 90-day waiver. To do that, offenders would either have to prove in court that they are indigent, are receiving food assistance from the state, or are living under the federal poverty level.
Snyder said the law brings Michigan in line with neighboring states that require sex offenders to pay for the operating cost of sex offender websites. He said Indiana charges $50 per year, while Illinois and Ohio charge offenders $100 per year. The state said the move could bring in about $540,000 more in revenue each year.
But not everybody is on board with the new law. Opponents, which include the American Civil Liberties Union, say it’s merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.
“They have paid their dues … this is a burden that we just keep piling on,” said Shelli Weisberg, legislative liaison for ACLU of Michigan. She argues that the state is not asking offenders to pay for something that benefits them, but something that is intended to protect citizens. Therefore, the state should pay for it.
Sunday, November 03, 2013
Should we worry early parole might cut 750 years off sex offender's prison term?The question in the title of this post is my tongue-in-check response to this local West Virginia sentencing story sent my way by a helpful reader. The piece is headlined "County man sentenced to 250 -- 1,000 years," and here are the details:
A Marion County man was sentenced to 250 -- 1,000 years in prison Friday for 10 counts of sexual abuse and 10 counts of sexual assault, all involving a minor. Matthew Monroe Cottingham, 28, of Fairmont, was sentenced by Marion Circuit Judge David R. Janes.
Cottingham was sentenced to 25 to 100 years for each of 10 counts of sexual assault on a minor and 10 to 25 years for each of 10 counts of sexual assault by a parent, guardian or custodian. He will serve the sentences for sexual assault consecutively and the sentences for sexual abuse concurrently, said Marion County Prosecuting Attorney Patrick Wilson....
“The sentences of 25-100 years are indeterminate,” Wilson said. “He would have to do 25 years on each count before he’d be eligible for parole.”
Cottingham had been first arrested in late July 2012 by Fairmont police. According to criminal complaints, he forcibly had sexual relations with a 13-year-old girl. The girl allegedly told her mother the next day, and statements by the victim and physical evidence observed at Fairmont General Hospital were reportedly consistent with the allegations....
Child Protective Services continued to investigate the incident since the initial arrest. A second child, a 9-year-old girl, alleged that Cottingham had perpetrated “several sexual assaults ... dating back years prior to his arrest to CPS officials.”
Wednesday, October 23, 2013
Should Congress tell all states and localities they many never employ certain ex-offenders in their public schools?The question in the title of this post is prompted by this new AP story headlined "House Votes for School Checks for Sex Offenders." Here are is the backstory:
Public schools would be barred from employing teachers and other workers convicted of sexual offenses against children or other violent crimes under a bill the House approved Tuesday.
The measure would require school systems to check state and federal criminal records for employees with unsupervised access to elementary and secondary school students, and for people seeking those jobs. Workers refusing to submit to the checks would not be allowed to have school positions.
A 2010 report by the Government Accountability Office, the auditing arm of Congress, cited one estimate that there are 620,000 convicted sex offenders in the U.S. It also found that state laws on the employment of sex offenders in schools vary. Some require less stringent background checks than others, and they differ on how people with past convictions are treated, such as whether they are fired or lose their teaching license.
The bill has run into objections from major teachers' unions like the National Education Association and the American Federation of Teachers. In letters to lawmakers, their criticisms included concerns that the measure might jeopardize workers' protections under union contracts. In addition, the NEA wrote that criminal background checks "often have a huge, racially disparate impact" — a reference to critics' complaints that minorities make up a disproportionately high proportion of people convicted of crimes.
Despite those concerns, the House approved the measure by voice vote. "Keeping children safe is not a partisan issue," said the chief sponsor, Rep. George Miller, D-Calif. "It's a moral obligation."
"Every school employee, from the cafeteria workers to the administrators, to janitors to the teachers, principals and librarians, that every one" is subject to background checks including the FBI fingerprint indentification system to the national sex offender registry, said Rep. Todd Rokita, R-Ind.
No one said they opposed the bill. But Rep. Keith Ellison, D-Minn., said that by imposing lifetime bans and ignoring the ability of people to overcome criminal backgrounds, "We do run the risk of doing a good thing, but doing too much of a thing." He said he'd continue seeking changes in the measure as it moves through Congress....
The bill would forbid public schools to employ people convicted of crimes against children including pornography, or of felonies including murder, rape, spousal abuse or kidnapping. It would bar school districts and state education agencies from transferring workers who have engaged in sexual misconduct with minors to another location. The measure would also apply to contractors who work at schools.
Especially as this bill moves to the Senate, I wonder how tea party conservatives like Senators Cruz and Lee and Paul are likely to look at this seemingly significant intrusion by the federal government into state and local education and employment authority. If applied broadly, it sounds as though this bill would preclude someone convicted decades earlier of public indecency or child abuse from serving as a janitor or construction worker in any public school in any state. Whatever one might think about a state adopting such a rule for its own schools, but it seems like quite an intrusion into state authority for the feds to require this rule for all states and localities nationwide.
Tuesday, October 22, 2013
Lamenting sex offender fear-mongering around HalloweenWriting over at Huffington Post, Emily Horowitz has this notable new commentary headlined "Manufacturing Fear: Halloween Laws for Sex Offenders." Here is how the piece starts and ends:
In North Carolina, a sheriff tells parents to check the online sex offender registry before allowing children to trick-or-treat. In Montana, a town offers a "trunk-or-treat" event where kids can get Halloween candy from trunks of cars in a parking lot to avoid potential danger. In New York, "Operation Halloween: Zero Tolerance" prohibits sex offenders from wearing masks or costumes or answering their doors on Halloween, and, as a parole source says, "There is certainly nothing more frightening than the thought of one of these men opening their door to innocent children." In Oklahoma, a city council is considering an ordinance forbidding sex offenders from decorating their homes or passing out candy on Halloween. In Orange, California, sex offenders can't answer their door or have outside lighting on Halloween, but an additional ordinance requiring window signs saying, "No candy or treats at this residence" was recently revoked after attorneys argued it was a form of cruel and unusual punishment.
Why worry about sex offenders on Halloween? Research shows no evidence of increased child sex abuse on Halloween and no evidence that a child was ever a victim of sexual abuse by a stranger while out trick-or-treating. This makes perfect sense, because government data shows the vast majority (about 93%) of sex crimes against children are not committed by strangers but by family members or acquaintances....
The false dichotomy of evil adults and innocent children and families prevents children from meeting their neighbors and becoming part of a community. Sex offenders are subject to more post-punishment restrictions than any other ex-offenders, and have lower recidivism rates. Halloween sex offender laws, and rampant media coverage of the threat of sex offenders on Halloween and throughout the year, is creating a neurotic and fearful generation of kids who grow up thinking they are helpless prey facing threats from real monsters. Children are safest when they know their neighbors, and Halloween is a good opportunity to meet others in the community. There are some actual threats to child safety on Halloween -- like an increase in pedestrian car accidents -- but sex offenders and poisoned candy aren't among them.
Monday, October 21, 2013
Alabama legislators proposing adult day-care "clusters" for sex offendersAs reported in this local article, headlined "Bill Proposes Licensed Residential Sex Offender Clusters," legislators in Alabama are considering a new innovation in the monitoring of sex offenders. Here are the details:
Some Alabama State Representatives are hoping a proposed bill will change the laws surrounding where convicted sexual predators are able to live together. Representatives Kurt Wallace and Paul Beckman are sponsoring the proposal that would make it against the law for sexual predators to live together unless it’s in what they’re calling a licensed, regulated residential sex offender cluster.
The proposed bill is similar to a bill passed into law earlier this year by the Alabama State Legislature. Alabama State Senator Arthur Orr is the sponsor of that bill. It encompasses Morgan County, while the proposed bill will cover the entire state.
In part Senator Orr’s bill made it against the law for convicted sex offenders to live in the same house. ”Studies show that if that is the situation there is much more proclivity for them to sexually offend others in the surrounding area,” Senator Orr says. He says his bill was met with agreement from the Alabama Legislature and Morgan County residents. “Certainly the constituents who had small children who were living near this group sexual offender home, and they certainly wanted something done.”
The proposed bill by Representatives Wallace and Beckman would create what lawmakers call residential sex offenders clusters. The bill spells out what that means. A residential sex offender cluster would be a tract of land where registered sex offenders could live together. An on-site monitor would also be required to live there to supervise the offenders. The clusters would have to be licensed and it would authorize the Department of Mental Health to make rules regulating the clusters.
If passed this proposed bill would require any sex offenders who wanted to live together to live in one of the clusters. It’s proposed if they violated that, it would be punishable by a felony charge. Already Alabama has laws preventing convicted sex offenders from living near a school or their victims. Some officials argue it’s already hard enough for them to find a place to live and this proposed bill would make it even harder....
Lawmakers say the proposed bill would promote public safety, health and confidence. They are expected to take this proposed bill up in the 2014 regular session.
Wednesday, October 09, 2013
District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals
I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)
For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands. The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:
This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines. Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.
There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair. In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice. See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.
Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence. As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable. Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case. The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.
It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.
October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, October 08, 2013
How should the law — federal or state — deal with a 10-year-old serious sex offender?The question in the title of this post is prompted by this new article from the Wall Street Journal about a remarkable federal juvenile prosecution. The article is headlined "Federal Youth Case on Trial: Prosecution of 10-Year-Old on Sex Charges Stokes Debate Over Juvenile Justice." Here is how it starts:
Two years ago federal prosecutors won a delinquency finding against a boy accused of engaging in sex acts when he was 10 years old with other young boys on an Army base in Arizona—one of the youngest defendants ever pursued by the U.S. Justice Department.
The case, now being reviewed by the Ninth Circuit U.S. Court of Appeals, could open a new front in a long-running debate about how to handle juvenile sex offenders, whose cases generally have been tried in state, not federal, courts. The records are sealed because the defendant was tried as a juvenile, but the case came to light in September at an appellate hearing in San Francisco that was open to the public.
The boy's appeal involves a thorny legal question: Should children be prosecuted for sex acts with other children under a federal law that the boy's lawyers say was designed to target adult predators? The fight also highlights a broader debate over tagging juveniles as criminal sex offenders, a label that can land them a spot on registries that track offenders and limit where they can live.
The boy was found delinquent — guilty in juvenile-court parlance — on charges of aggravated sexual abuse against five boys between the ages of 5 and 7, under a statute that makes it illegal to engage in a sexual act with a person younger than 12 regardless of whether physical force is involved. The boy was sentenced to five years' probation, including mandatory psychological treatment, lawyers on the case said. He must also register as a sex offender in certain states, according to his lawyer.
"I think this is really overreaching on the part of the government," Keith Hilzendeger, a federal public defender representing the boy, said in an interview. He added that he had "never heard of a federal case where a person is 10."
Assistant U.S. Attorney Bruce Ferg said outside the courtroom that federal prosecutors took the case because of "the severity of the conduct" and because it took place on Fort Huachuca, the Army base where the boys lived with their families. "My opinion is this is the best thing that could've happened to the kid," said Mr. Ferg, adding that the case included allegations of anal penetration, repetitive behavior and threats. He said that prosecutors considered, "What can we do with this child to make sure this doesn't happen again?"
Monday, October 07, 2013
Fifth Circuit panel declares substantively unreasonable (and plainly erroneous) an above-guideline child porn sentenceI am always pleased to see examples of post-Booker reasonableness review being given some more teeth in the circuits, and a panel ruling released today by the Fifth Circuit in US v. Chandler, No. 12-30410 (5th Cir. Oct. 4, 2013) (available here), shows that even defendants convicted of child porn offenses can sometimes benefit from appellate judges taking reasonableness review seriously. Here are excerpts from the start and heart of the of the panel opinion in Chandler:
Richard Chandler pleaded guilty to engaging in a child exploitation enterprise. At sentencing, the district court varied upward by 127 months over the recommended Guidelines range to impose 420 months of imprisonment. We find that the district court erred by increasing Chandler’s sentence based on the fact that he was a police officer. We remand for re-sentencing....
The parties agree that the district court correctly calculated Chandler’s Guidelines range as 240-293 months. In the PSR, the probation officer stated that he had not identified any factors warranting a departure or variance from the Guidelines range. Chandler did not file objections to the PSR, but he filed a Motion for Deviation from Sentencing Guidelines, arguing that a significant downward departure from the Guidelines was justified in his case because the sentencing scheme for possession of child pornography is unfair and the circumstances of his offense warranted leniency. The district court rejected Chandler’s motion, noting that Chandler was not a “mere possessor” because he had repeatedly posted child pornography. The district court ultimately imposed a sentence of 420 months of imprisonment, an upward variance of 127 months from the top of the Guidelines range. The district court found that the non-Guidelines sentence was justified by the nature and circumstances of the offense, particularly Chandler’s abuse of his public office as a law enforcement officer, his use of other people’s internet connections to attempt to hide his participation in the scheme, and the fact that he posted child pornography 117 times, mostly with children 8 to 14 years of age. Chandler did not object to the sentence. Chandler filed a timely notice of appeal....
Some of the comments made by the district court here, such as those stating that by being a police officer Chandler has placed himself in a different category and should be held to a higher standard, are similar to those in Stout and could be interpreted to cross the line into impermissible reliance on Chandler’s socioeconomic status as a police officer.
To the extent that the district court’s comments regarding Chandler’s position are findings that Chandler abused his position of trust or that the offense was more serious because of Chandler’s position, the district court likewise erred. Though we are mindful that our review in this case is only for plain error, our circuit precedent is clear that a defendant’s status as a police officer, standing alone, is not a justifiable reason to increase a sentence....
[T]hough the district court stated multiple times that it was varying upwards because Chandler abused his position, the district court did not rely on any facts showing that Chandler acted in his capacity as a police officer in posting child pornography on the internet. There is no evidence in the record that he used or exploited his position as a police officer, or used any knowledge or skills he gained from that position, to commit the offense or attempt to hide it.
The district court’s error was compounded by its mischaracterization of the conduct involved in Chandler “stealing” other people’s “identities” or “internet addresses.” The only description of this conduct in the record is in a sentencing memorandum filed by the government, which states that Chandler used other people’s unsecured wireless connections. Though the government refers to this as “stealing,” it essentially amounts to logging onto an open wireless network. While we agree with the government that such activity could have caused innocent people to be subject to investigation, it clearly is not equivalent to identity theft or any sort of skilled hacking activity, though the district court discussed it as if it required highly technical knowledge that Chandler acquired as a police officer.
Thursday, October 03, 2013
Second Circuit finds substantive due process problems (and others) with penile plethysmography testing for convicted sex offenderThanks to a number of helpful readers, I have not missed the news of a notable sentencing ruling by a Second Circuit paenl today in US v. McLaurin, No. 12-3514 (2d Cir. Oct. 3, 2013) (available here). Here is how the opinion starts:
David McLaurin, a convicted sex offender, was required by federal law to register any change in his address. He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months’ imprisonment and five years of supervised release. As a condition of his release, McLaurin was required to “participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.
This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.
McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release. See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin. McLaurin now appeals.
We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin’s right to substantive due process. We therefore vacate the condition.
October 3, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack
Should downloading a few pics of child porn result in attorney's disbarment?The question in the title of this post concerning a notable collateral consequence of some convictions is prompted by this fascinating cover story from the October 2013 issue of the California Lawyer magazine. (Hat tip: How Appealing.) The story is headlined "Unfit to Practice? The state Supreme Court must decide whether a lawyer's possession of child pornography requires summary disbarment," and here is how the piece begins:
Gary Douglass Grant is a lawyer with a big problem. In 2007 the civil litigator and former captain in the Army Reserves, now 56, was a JAG lawyer assigned to Los Alamitos Army Airfield when an Immigration and Customs Enforcement (ICE) operation in Virginia tracked hits on approximately 18 commercial child pornography websites. ICE agents in Project Flicker, as it was known, located a number of active and retired military members, civilians, and contractor employees - several of whom had Top Secret or higher clearances - who allegedly used their military email addresses to register for PayPal accounts to access the images.
One of the 16 individuals identified that summer was Gary Grant. A search of computers at his Aliso Viejo home revealed that he had sent over the Internet an image depicting minors engaged in sexually explicit conduct; Orange County sheriff's deputies arrested him a year later. Investigators had found that between 2001 and 2007 Grant accumulated more than 100,000 digital pornographic images, much of it legal adult material. But mingled among those images were pornographic pictures of children. An analyst who examined the seized files found 19 photos and a videotape of youths who appeared to be between 14 and 16 years old - "possibly minors."
The Orange County District Attorney charged Grant with three counts of California Penal Code section 311.11(a), possession of obscene matter of a minor in a sexual act. Prosecutors gave Grant and his lawyer a CD with at least 100 sexual images of children retrieved from Grant's computers.
From the outset, Grant gave specific orders to his criminal defense attorney: "Defend this to the nth degree, because no way, no how, did I knowingly possess child pornography."
Ultimately, though, Grant conceded there were sexual images of underage girls on his computer. He said he had found the photos repugnant and deleted them. But even deleted images may remain on a hard drive, and that's where forensic computer analysts in this case located them. In April 2009 Grant admitted he had temporarily possessed two "unsolicited electronic images" of children, received by email while he was downloading other pornography. He pleaded guilty to one count of felony possession; prosecutors agreed to drop the other two charges. The judge sentenced Grant to 90 days in jail and three years of probation, and ordered him to register as a sex offender for the rest of his life. He did not appeal his conviction or sentence.
Grant joined a twelve-step fellowship known as Sex and Love Addicts Anonymous. But by autumn he had violated the terms of his probation by downloading adult pornography to his computer and by "sex-texting" two former girlfriends. The violations brought Grant an additional 183 days of jail time - more than twice his original sentence.
Based on the felony conviction, the State Bar of California automatically placed Grant on interim suspension pending further disciplinary proceedings. A State Bar Court trial judge later recommended that Grant be disbarred because his felony involved moral turpitude. His lawyer challenged that characterization, and the severity of the discipline. When the Review Department recommended only a suspension, the prosecutors appealed. Now Grant's case is pending before the state Supreme Court, where it has been fully briefed and awaits oral argument. (In re Grant, No. S197503 (Cal. Sup. Ct).)
At issue is the State Bar's ability to exact the ultimate sanction - disbarment - pursuant to a summary procedure that permits neither consideration of mitigating factors nor whether that sanction is appropriate. What began as one man's compulsion to accumulate pornography has become a challenge to the moral-turpitude-per-se standard, and the State Bar's procedures associated with it. Ultimately the Grant case could result in changes to disciplinary proceedings that affect hundreds of matters.
Thursday, September 26, 2013
Second Circuit reverses below-mandatory-minimum sentence for distributing child pornographyThe Second Circuit via a lengthy panel decision today in US v. Reingold, No. 11-2826 (2d Cir. Sept. 26, 2013) (available here), reverses a decision by Judge Jack Weinstein to sentence a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Here is how the majority opinion gets started:
Corey Reingold pleaded guilty in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) to one count of distributing child pornography. See 18 U.S.C. § 2252(a)(2). The United States now appeals from that part of the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months’ incarceration. The government contends that the district court erred in refusing to impose the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual Punishment Clause. See U.S. Const. amend. VIII. The government further disputes the district court’s Sentencing Guidelines calculations. The district court explained its sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages of appendices. See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011). Having carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude that the district court erred in both respects identified by the government. We therefore remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion.
I will not have a chance to review closely the 56 pages of Reingold until late tonight, though a quick skim suggests this ruling is a must-read for any and everyone working on sentencing issues in child pornography cases in the federal courts.
Monday, September 23, 2013
Litigation prompting California city to give up Halloween sex offender posting lawAs reported in this Los Angeles Times piece, headlined "O.C. city likely to drop Halloween law aimed at sex offenders: A lawsuit challenges a city of Orange law requiring sex offenders to post signs to discourage trick-or-treaters," it appears that just the filing of a constitutional lawsuit is prompting reform of a local ordinance. Here are the basics:
An Orange County city will probably toss out a law requiring registered sex offenders to post a sign in front of their homes on Halloween to discourage trick-or-treaters after it was hit with a federal lawsuit alleging the practice is unconstitutional.
Registered sex offenders in the city of Orange are legally required to post a sign on Halloween, no smaller than 12 by 24 inches, that reads, "No candy or treats at this residence." Violators face a $1,000 fine or up to a year in jail. The lawsuit, filed Wednesday on behalf of an individual identified only as "John Doe," alleges the law violates the 1st Amendment rights of registered sex offenders and puts them, and anyone living with them, at risk of physical and emotional harm.
"If you think about it, a lot of older kids go out to trick rather than treat," said Janice Bellucci, an attorney and president of the California Reform Sex Offender Laws group. "All you have to do is look for the house with the sign."...
Bellucci filed a similar lawsuit last year to strike down a Simi Valley ordinance that also required people convicted of sex crimes to post a sign. That law also banned them from putting up Halloween displays and outside lighting on Oct. 31. But the day before the Simi Valley law went into effect, federal court Judge Perry Anderson issued a temporary restraining order barring the city from enforcing the sign provision.
The judge let stand provisions of the ordinance that keep sex offenders from turning on outside lights, decorating their homes and answering their doors to trick-or-treaters....
In Orange, no registered sex offenders have been cited since the ordinance was adopted, said City Atty. Wayne Winthers. When the city passed the law in February 2010 officials counted 81 registered sex offenders, with 81% of them having convictions involving minors, according to city records.
There was no need for the group to file the lawsuit, he said, since the city had been in contact with Bellucci and the City Council was expected to discuss the issue next week in closed session. "I read the district court's [Simi Valley] ruling and I don't see any reason why the court would look at ours any differently," said Winthers, who said he intended to ask the council to remove the sign requirement from the Halloween ordinance. "Our intent wasn't to bring any unnecessary harm or scrutiny to any particular individual," Winthers said. "We just wanted to protect children."
Saturday, September 07, 2013
Legal twists and turns continue in controversial rape sentencing case from MontanaAs reported in this local article, there were a number of notable court developments on Friday in the Montana child rape sentencing case that has garnered national attention. Here are the basics:
Recent related posts:
The Billings judge who drew local and national condemnation for sentencing a former Senior High teacher to 30 days in prison for raping a 14-year-old student canceled a second sentencing hearing on Friday after the Montana Supreme Court intervened in the case.
But District Judge G. Todd Baugh did address an audience of mostly media representatives for about 10 minutes, explaining the legal and procedural history of the Stacey Rambold rape case that has grabbed headlines across the country for the past two weeks.
Less than an hour before Baugh stepped into the courtroom, the Montana Supreme Court issued an order canceling the hearing, telling Baugh that he could not legally change Rambold's sentence as he intended. "We conclude that the stated intent of the District Court to alter the initially imposed oral sentence in today's scheduled hearing is unlawful and that proceeding should be arrested," the order stated.....
The hearing Baugh wanted to hold in order to change Rambold's sentence was opposed by both the Yellowstone County Attorney's Office and Rambold's defense attorney, who argued that Baugh did not have the authority to change the sentence after announcing it in court last week. In its order, the Supreme Court also said it "takes no position on the legality of the imposed sentence, and will address the parties' arguments in that regard on appeal."
Attorney General Tim Fox released a statement later Friday that his office would proceed with the appeal, which was filed on Tuesday. "While it's good that Judge Baugh recognizes that his August 26 sentence of Stacey Rambold is contrary to the law, today the state Supreme Court affirmed that Judge Baugh has no authority to amend the sentence unless ordered to do so by the Supreme Court," Fox said.
Though he did not impose a new sentence, Baugh went ahead with the unusual hearing. The hearing began 1:40 p.m., and Baugh announced that he had decided on Thursday, before the Supreme Court intervened, to cancel the hearing he intended to hold aimed at re-sentencing Rambold....
A reporter from the New York Times and a crew from CNN were among the media representatives at the hearing, which was held on the record with a court reporter and court clerk present. Baugh told the gathering that he had also on Thursday signed a written judgment altering the sentence he imposed orally against Rambold on Aug. 26. The judge said the new sentence was 15 years in prison, with all but two years suspended, which he said is the minimum legal sentence in the case.
Less than two weeks ago, Baugh sentenced the 54-year-old Rambold to 15 years in prison, with all but 31 days suspended and credit for one day served. After reviewing the Supreme Court order, Baugh said, he put a note in the file withdrawing that written judgment and signed a new judgment reflecting his original sentence.
Baugh said the confusion over the mandatory minimum sentence in the case "shouldn't have had to be addressed at all." The confusion could have been avoided if "I had been more alert" or if prosecutors had addressed the issue at Rambold's Aug. 26 sentencing hearing. At that hearing, the prosecution argued that Rambold should receive a sentence of 20 years in prison, with 10 years suspended.
Baugh instead imposed the sentence requested by Rambold's defense attorney, Jay Lansing. The sentence caused a national outrage, not only for the prison term imposed on the former teacher, but for the words the judge used to explain the sentence. Baugh said the victim, Cherice Moralez, who committed suicide in 2010, was "older than her chronological age" and was in some control of the relationship with Rambold.
The judge apologized for the statements two days later, but critics have continued to call for his resignation. Baugh explained on Friday that the case began with the charges filed in 2008, but resulted in an unusual deferred prosecution agreement in July 2010 after Moralez's death.... Baugh said the sentencing hearing on Aug. 26 happened almost six years after the crimes. Rambold was found to be treatable in the community, and had committed no new crimes, he said.
"It seemed to me a suspended sentence was the most appropriate," Baugh said. The case will now proceed to the appeal process, the judge said.
- "Protesters Demand Montana Judge Resign Over Rape Sentencing"
- New hearing ordered by Montana judge in case involving controversial 30-day child rape sentence
Tuesday, September 03, 2013
New hearing ordered by Montana judge in case involving controversial 30-day child rape sentenceAs reported in this local article, headlined "Judge orders new hearing on controversial rape sentencing," a high-profile state sentencing case from Montana took another notable twist this afternoon. Here are the details:
Saying the sentence he imposed on a former Billings teacher for the rape of a student may be illegal, Yellowstone County District Court Judge G. Todd Baugh has ordered a new hearing.
In an order filed Tuesday, Baugh set a hearing for Friday at 1:30 p.m. to determine whether the sentence he imposed last week on Stacey Dean Rambold should be revised. Baugh said in the order that the mandatory minimum sentence Rambold should have received appears to be two years, not the 30-day sentence that Baugh ordered on Aug. 26.
Yellowstone County Attorney Scott Twito called Baugh’s order an "unusual occurrence." Twito has been consulting with the Montana Attorney General’s Office to determine whether to appeal the case to the state Supreme Court. "The state will review the issue and we will be prepared to be in court on Friday," Twito said in response to the judge’s new order.
Rambold, a former Senior High teacher who admitted to raping a 14-year-old female student who later committed suicide, received a sentence of 15 years in prison, with all but 31 days suspended. He was given credit for one day previously served.
The sentence, and statements made by Baugh at the hearing last week, drew international attention and calls for Baugh’s resignation.
Recent related post:
Utah (re)considering its approaches to sex offender sentencingThe Salt Lake Tribune has this notable new article about its prison population and sex offender sentencnig under the headline "Utah sex offender policy in spotlight as numbers soar: More prisoners, longer sentences but funding for treatment stays flat, triggering concerns." Here are excerpts:
A dramatic increase in the number of sex offenders incarcerated in Utah over nearly two decades is raising questions about how the state deals with such crimes and concerns about whether all inmates are able to get needed treatment before they return to their communities.
The number of sex offenders in state custody has more than doubled — to 2,194 or 31 percent of the prison population — since 1996, the last year Utah lawmakers approved an increase in treatment funding. Although Utah’s incarceration rate is significantly lower than that of other Western states and the U.S., it leads surrounding states when it comes to the percentage of prison inmates who are sex offenders.
One reason for that: Lawmakers have taken a tough stance on sex offenses, setting stiff penalties, such as a law passed in 2008 that set a 25-years-to-life penalty for child rape. “Our culture has a very strict credo, a moral sense, of what is appropriate sexually and what is not appropriate sexually,” said Rep. Eric Hutchings, R-Kearns and a member of the Criminal Justice Appropriations subcommittee. “That may be why we incarcerate a little bit more.”
The state’s approach also has historically been shaded by the view that “once a predator, always a predator” — a misconception that may finally be poised to shift with the accumulation of evidence that shows treatment works, Hutchings said. “The discussion is not over, but it’s happening in earnest,” Hutchings said. “The mind-set for a long time has been what are we going to get by putting this money into treatment. Why not focus instead on mandatory minimum sentences and keeping these people locked away.”...
The numbers reflect that philosophy of warehousing inmates. Today, more sex offenders in Utah are sent to prison rather than placed on probation, and they serve longer sentences. In 2012, for example, 92 percent of first-degree felony sex offenders went to prison, up from 72 percent in 1988. During that period, the length of time served has doubled....
Still, “The reality is we are talking about a very large group of people at the prison who are some day going to get released,” said Jonathan Ririe, a Utah psychologist who works with sex offenders in the community. And that makes investing in treatment, as well as supervision outside of prison, critical, he added....
Utah inmates convicted of first-degree felony sex offenses who were released from prison during the past five years had, on average, served 7½ years. But some serve far longer....
One Utah analysis of inmates who completed treatment showed about 20 percent returned to prison within a year, compared with 42 percent of those who did not complete treatment. In both groups, most offenders returned because of parole violations rather than because they committed new crimes.
A 2003 Bureau of Justice Statistics report found that sex offenders were less likely than non-sex offenders to be rearrested for any crime. That report also found that 5.3 percent of all sex offenders were rearrested for a sex crime within three years of being released. The percentage was even lower — 3.3 percent — for child molesters.
Ririe said it is “frustrating” that Utah’s approach has been to continually adopt more stringent sentencing guidelines that lump sex offenders together rather than adopting a system that appropriately categorizes offenders by risk factors and allows judges and the parole board a greater role in assessing them individually.
Second Circuit panel hints that SORNA might be subject to some Commerce Clause challengesA helpful reader alerted me to a notable Second Circuit panel opinion today in US v. Robbins, No. 12-3148 (2d Cir. Sept. 3, 2013) (available here), in which the court hints that federal sex offender registration laws might at some point be subject to new Commerce Clause challenges in the wake of the Supreme Court's work in the "Obamacare" cases. Here is how the opinion in Robbins gets started:
In August 2011, after traveling from New York to Nevada, defendant-appellant Nathan Robbins knowingly failed to update his registration as a sex offender, as he was required to do under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16913. He subsequently pled guilty to violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required to register under SORNA to travel in interstate commerce and knowingly fail to update his registration. Despite his plea, Robbins retained the right to challenge the constitutionality of the statutes he admitted violating, and he brings just such a challenge here.
This Court has previously held that Congress acted within its powers under the Constitution’s Commerce Clause when it enacted SORNA. See United States v. Guzman, 591 F.3d 83 (2d Cir. 2010). Since then, however, the Supreme Court has revisited and further clarified — if that is the appropriate word — the reach of Congress’s power “[t]o regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8, cl. 3; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”). Robbins invites us to revisit our holding in Guzman in light of the Supreme Court’s decision in NFIB.
We decline Robbins’ invitation not because his arguments all lack force, nor because the constitutionality of SORNA — particularly when applied within the states — is beyond question, see United States v. Kebodeaux, 570 U.S. ___, No. 12-418, slip op. at 5 (U.S. June 24, 2013) (Roberts, C.J., concurring in the judgment) (“The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.”), but because the constitutionality of SORNA as applied to Robbins remains unaffected by any limitations on Congress’s Commerce Clause power that may be found in NFIB. Still bound by the precedent set in Guzman, we therefore AFFIRM Robbins’ conviction.
Monday, September 02, 2013
"Against Juvenile Sex Offender Registration"The title of this post is the title of this notable new paper by Catherine Carpenter now available via SSRN. Here is the abstract:
Imagine if you were held accountable the rest of your life for something you did as a child?
This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives.
No matter the constitutionality of adult sex offender registration — and on that point, there is debate — this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent.
Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders.
Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.
September 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack
Friday, August 30, 2013
"Protesters Demand Montana Judge Resign Over Rape Sentencing"The title of this post is the headline of this New York Times report on the continuing controversy over what seems to be a disturbingly lenient state sentence for a child rape conviction. Here are some of the latest developments in a story that seems to have become a cause for CNN and other media outlets:
Angry that a Montana judge sentenced a former teacher who had admitted to raping a 14-year-old student to only a month in jail, several hundred people gathered outside the Yellowstone County Courthouse in Billings on Thursday, demanding that the judge resign. The victim committed suicide three years after the rape, just before her 17th birthday.
The decision by Judge G. Todd Baugh of State District Court on Monday to suspend the teacher’s 15-year prison term, combined with remarks he made about the rape victim during the proceeding, has sparked outrage in Montana and around the country, with online petitions gathering more than 30,000 signatures in a few days. During the sentencing, Judge Baugh said the victim “seemed older than her chronological age” and was “as much in control of the situation” as the teacher.
The death of the victim, Cherice Morales, who was a student of Stacey Dean Rambold, contributed to delays in the prosecution of the case, which was originally filed in 2008.
Judge Baugh later apologized for his remarks, telling The Billings Gazette: “I don’t know what I was thinking or trying to say. It was just stupid and wrong.” He defended the one-month sentence, however, and in doing so made a remark that further angered many protesters. “Obviously, a 14-year-old can’t consent,” he said, but then added: “I think that people have in mind that this was some violent, forcible, horrible rape. It was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”
Marian Bradley, who heads the Montana chapter of the National Organization for Women and helped organize the rally on Thursday, said that the judge needed to step aside and that state lawmakers needed to consider mandatory sentencing for convicted rapists. “It’s highly unusual to get several hundred people to show up for a protest in Billings,” said Ms. Bradley, a longtime rape crisis volunteer. “Everyone here is outraged.”...
Mr. Rambold, 54, a former technology teacher at Billings Senior High School, pleaded guilty in April to a felony count of sexual intercourse without consent. The charges were first brought in 2008, and his prosecution was deferred in 2010 after Ms. Morales’s suicide raised concerns among prosecutors that a conviction would be difficult to obtain without the victim’s testimony.
Under a three-year agreement, Mr. Rambold attended an outpatient program for sex offenders, and if he had completed it, the charges would have been dismissed. But after he violated the terms of the program last fall, prosecutors brought charges against him again earlier this year and he pleaded guilty to one count, which brought him back to court for sentencing on Monday.
Though I am troubled when folks start calling for a judge's head based on limited information about a seemingly misguided sentencing decision, it is understandable why the judge's sentencing decision here has prompted outrage given the the facts that are publically known about this case. Interestingly, as now reported in this new Billings Gazette article, "Judge G. Todd Baugh, who has drawn international criticism for sending a convicted rapist to prison for only 30 days, issued a sentencing addendum Thursday afternoon, offering a formal explanation of his decision in the case." That three-page addendum may not end the protests, in part because Judge Baugh says in this Addendum that some key facts influencing the sentencing decision that cannot be publically disclosed.
Long-time readers will not be surprised to hear me suggest that Montana lawmakers not respond to one ugly case by passing new mandatory sentencing statutes. In lots of other settings, we can and do reasonably expect and hope that appellate review will provide a means to correct very wrong trial court rulings. Intriguingly, this new CNN article reports that the local prosecutor here is considering an appeal and seems to believe that there already was a statutory provision that would have required at least a two-year prison term for the defendant here. If the sentencing decision causing outrage and protests cannot be reviewed under existing Montana law, I hope that problem becomes the focal point of any legislative reform rather than the creation of new mandatory minimum sentencing statutes.
Tuesday, August 27, 2013
"Is it fair for sex offenders to stay listed on a registry for life?"The title of this post is the headline of this recent lengthy article in the St. Louis Post-Dispatch. Here are excerpts:
On one side of the latest debate over Missouri’s sex-offender registry are people such as Daniel Ray Winfrey. In 1991, when Winfrey was 15, he and three others raped and murdered sisters Julie and Robin Kerry at the Chain of Rocks Bridge near St. Louis.
Winfrey testified against his co-defendants in exchange for a 30-year prison sentence. Though back in prison, he has been paroled twice since his conviction. At those times, he was free but still listed on the state’s sex-offender registry website. That website, Gov. Jay Nixon argues, is the only way for most neighbors and others to know of the potential danger while such offenders are among them.
“You wouldn’t want to know if one of these guys moved in next door?” Nixon asked last week. He was defending his veto of a bill that would remove from the website all offenders who, like Winfrey, were under 18 when they committed their crimes.
On the other side are people such as Ali Nemec’s fiancé. He was 17 when he was arrested for having child pornography on his computer. Now 24 and still listed on the registry website, he’s had difficulty at work, has been been turned away from housing and lives with his parents.
“We can’t go to a park, we can’t go to a mall. If there’s an event with our friends near a school, we can’t go,” said Nemec, 23, of St. Peters. “He made a mistake ... (but) he is not the boy that he was. There’s no reason to ruin him for the rest of his life.”
The registry is today’s ultimate “scarlet letter.” Long after they’ve served their time, sex offenders remain barred from parks and schools and limited in their employment and housing options. Their names and faces are posted on the Internet, easily accessible to friends and neighbors.
In Missouri, they stay listed for life, even if they were juveniles when they committed their crimes. The state Legislature passed this year a bill to change that. Nixon vetoed it, potentially setting up an emotionally charged veto fight next month.
The bill would remove from the sex-offender registry website hundreds of offenders such as Nemec’s fiancé and Winfrey, whose crimes were very different but who were both under 18 when they committed them. By one estimate, the bill would cull about 870 names from the more than 13,000 on the site, in addition to future offenders in the same situation.
Those offenders would still be listed on the registry itself, accessible to law enforcement and anyone from the public who requests the information. But the bill would allow the offenders to petition for complete removal from the registry starting five years after the end of their sentences.
“These kids have served their debt to society. They are adults now and haven’t done anything wrong since,” said Rep. Dave Hinson, R-St. Clair, a co-sponsor of the measure. He and others note that listed offenders have high unemployment rates because many employers won’t hire them. “We’re just trying to give them another shot at being productive citizens.”
Nixon, a Democrat, vetoed the bill in July, arguing that it makes no distinction between relatively minor offenders and those who used force or violence. In a news conference at St. Louis police headquarters last week, defending the veto amid the backdrop of uniformed officers, the governor warned that the measure could make Missouri a haven for sex offenders from other states who want to hide from their pasts....
In Missouri, and nationally, the issues connected to sex-offender registries — who should be on them, how long they should stay listed — have been in flux for years, with opposing interests battling to tighten or loosen the requirements.
The concept behind the lists is that because of the high rate of repeat offenses among sex offenders, the public needs to be warned of their whereabouts even after their sentences are served. Civil libertarians have long argued that this amounts to an unconstitutional open-ended punishment, but courts have generally upheld the registries....
Missouri’s system is tougher than some because once a person is on the list, he or she is on it for life, regardless of the severity of the original crime or the offender’s age at the time. Illinois, in contrast, has a lifetime tier and a 10-year tier, based on the details of the crime. People who commit crimes as juveniles have to register, but they aren’t listed on the registry’s public website....
Critics claim that the registry nets are cast so widely they often catch people who most would agree aren’t sexual threats. One commonly cited example are the so-called “Romeo and Juliet” offenders, who had consensual sex with teenage lovers, sometimes when they themselves were teenagers. Critics say those pitfalls in the system are especially ominous in Missouri, where juvenile crimes are listed for life.
August 27, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack
Saturday, August 24, 2013
Debate continues after Mizzou Gov vetoes bill to take juve sex offenders off registriesAs reported in this AP piece, headlined "Vetoed bill could affect 870 Mo. sex offenders," the Show Me state is showing all of us how a focused debate over juvenile sex offenders can play out these days. Here are the basics:
A Missouri bill removing the names of juvenile sex offenders from public registries could affect hundreds more people than originally estimated and help hide the whereabouts of some high-profile offenders, Gov. Jay Nixon said Wednesday.
The Democratic governor pointed to new figures and specific examples of sex-offenders as he traveled to St. Louis and Kansas City to try to build a case for why legislators should sustain his veto of the bill.... Republican legislative leaders have said the measure is a likely target for a veto override, noting that it passed originally with overwhelmingly support.
Under the bill, people who are younger than 18 when they commit sex offenses would no longer appear on law enforcement websites that list the home addresses and physical description of sex offenders. Adults who are currently listed because of sex offenses committed as juveniles also could be removed from the public registry five years after their convictions or release from prison.
Supporters of the bill have said the public registries leave a permanent mark on adults who may have been convicted as teenagers for consensual sexual activities with younger juveniles. They have said such people deserve a second chance outside of the public spotlight.
The bill passed the House 153-0 and the Senate 28-4 earlier this year. Nixon has said the legislation would weaken state laws and undermine public safety....
"The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to help keep their families safe, are not," Nixon said.
The governor's office distributed information about specific sex offenders who could be removed from the list if lawmakers were to override his veto. Among them is Daniel Winfrey, who was 15-years-old in April 1991, when sisters Julie and Robin Kerry were raped and killed at the Chain of Rocks Bridge over the Mississippi River in the St. Louis area. Winfrey pleaded guilty to second-degree murder and rape after agreeing to testify against several others involved in the crime.
Other offenders that the governor's office cited as likely to be removed from the public registry included men who had been convicted as juveniles of rape, sexual assault and sodomy against children who were ages 5, 6, 7 and 8.
Nixon spokesman Scott Holste said the legislation would benefit people who committed "heinous" acts. "These aren't Romeo and Juliet people we're talking about here," Holste said.
Tuesday, August 20, 2013
"North Carolina appeals court strikes social media ban for sex offenders"
The title of this post is the headline of this local press report on a notable intermediate state appeals court ruling today. Here are the details:
The full 21-page opinion in NC v. Packingham, No. 10 CRS 57148 (N.C. App Aug. 20, 2013), is available at this link.
The North Carolina Court of Appeals on Tuesday struck down North Carolina's ban on registered sex offenders using social media sites like Facebook and Twitter. The court said the ban in N.C. General Statute 14-202.5 "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify."
"The statute violates the First Amendment's guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court's judgment," wrote the court.
The ruling centered around a Durham case in which Lester Gerard Packingham appealed his felony conviction for accessing a commercial networking site last year. According to the trial records, the Durham Police Department was looking at evidence that registered sex offenders were using the websites MySpace and Facebook, and an officer recognized Packingham's photo on Facebook.
The North Carolina law says registered sex offenders may not use commercial social media sites if they know the site "permits minor children to become members or to create or maintain personal Web pages."
But in its ruling, the appeals court said the law "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal [of preventing contact with children.]"
North Carolina Attorney General Roy Cooper wanted the law but admits it may have to be rewritten, but he will try to appeal the North Carolina Supreme Court. Cooper notes that there are still laws on the books that investigators can use to charge suspects with soliciting children online. However, he believes we need a law to try to prevent child sex crimes before they happen....
If Cooper's attempt at an appeal fails, he says he will go back to the legislature to see if they can craft a new sex offender social media law that will withstand a legal challenge.
Tuesday, August 13, 2013
New Nebraska study suggests sex offender registry changes pushed by feds may do more harm than goodAs reported in this notable local piece, headlined "UNO report: Nebraska sex offender law 'founded more on public emotion than good science'," an important new study suggests that state sex offender registry laws have perhaps been made less effective as a result of reforms prodded by new federal sex offender laws. Here are highlights from the report on the report:
A newly released report questions whether public safety has improved since Nebraska adopted a state law that requires all convicted sex offenders to be listed on a public website.
The law, known as the Adam Walsh Act, was passed in 2009, but has been criticized as being too harsh on former offenders who committed minor crimes, are low risks to reoffend and have now become productive, law-abiding citizens....
On Monday, a report done by the University of Nebraska at Omaha’s Consortium for Crime and Justice Research concluded that the Adam Walsh Act “was founded more on public emotion than good science, which is its fundamental shortcoming.”
The 58-page document stated that Nebraska’s previous system of sex-offender registration, which required only that the highest risk offenders be listed publicly, “did not seem to be broken.” The report, though, stated that it could not be discerned if the previous, or new, registration system was superior in deterring repeat sex offenses.
The adoption of the Adam Walsh Act in Nebraska was controversial and spawned a lawsuit by a group of convicted sex offenders, who said it violated their constitutional rights. It was also praised for removing the subjective decision of whether an offender was at low or high risk to reoffend....
Prior to 2009, only the names and photographs of sex offenders who had committed the most serious offenses and were deemed by the patrol as most likely to reoffend were publicized on the patrol’s website. Under the old system, those who committed minor offenses and were considered a low risk were required to register with law enforcement agencies, but their information wasn’t made public.
Nebraska’s Adam Walsh Act, Legislative Bill 285, required that all sex offenders — low risk and high risk — have their photos and addresses posted on the state website, and to report to local law enforcement officials. The photos are to stay for 15 years for misdemeanor offenses, but as long as 25 years to life for more serious offenses.
The Legislature’s Judiciary Committee two years ago discussed whether to exclude low-risk offenders from the public website, but instead decided to seek more information, via the UNO report, which cost $60,000....
State Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee, said the UNO report provides better data for lawmakers on which to judge the effectiveness of sex offender registries. He said his committee may look at revamping the registration requirements of lower-risk offenders, but that overall, the report showed him that it’s not necessary to repeal the entire Adam Walsh Act. “I don’t see that changing registration laws and going back to tiering them is the answer,” Ashford said.
The senator added that the report’s data will aid his effort to reform state criminal sentences to ease the state’s chronic prison overcrowding. Treating sex offenders outside of prison must be considered, Ashford said, because among state prison inmates, sex offenders make up one of the largest categories....
Among the UNO report’s other findings:
» Recidivism rates for sex offenders were low — more than 97 percent do not reoffend — but were lower following the passage of the Adam Walsh Act. For instance, the recidivism rate for Level 2 (medium-risk) offenders was 0.5 percent after passage of the act and 2.5 percent before....
» Registries that show the addresses of offenders could provide a false sense of security because most sex offenders do not commit crimes in their own neighborhoods. Only 7 percent of such crimes were committed within a mile of an offender’s residence.
The full report, titled simply "Nebraska Sex Offender Registry Study," is available at this link.
Monday, July 29, 2013
FBI sweep leads to multiple rescues and arrests involving sexually exploited childrenAs reported in this new Washington Post piece, headlined "FBI raids in 76 cities save 105 kids forced into prostitution; 150 others arrested" the feds have been conducting a multi-day, multi-city sweep on persons involved in child prostution. Here are the basics:
Authorities rescued 105 children who were forced into prostitution and arrested 150 pimps and others in a three-day law enforcement sweep in 76 American cities, the FBI said Monday. The victims, almost all girls, range in age from 13 to 17.
The largest numbers of children rescued were in San Francisco, Detroit, Milwaukee, Denver and New Orleans. The campaign, known as Operation Cross Country, was conducted under the FBI’s Innocence Lost initiative.
“Child prostitution remains a persistent threat to children across the country,” Ron Hosko, assistant director of the bureau’s criminal investigative division, told a press conference. The FBI said the campaign has resulted in rescuing 2,700 children since 2003. The investigations and convictions of 1,350 have led to life imprisonment for 10 pimps and the seizure of more than $3.1 million in assets.
For the past decade, the FBI has been attacking the problem in partnership with a non-profit group, the National Center for Missing and Exploited Children. John Ryan, the head of the center, called the problem “an escalating threat against America’s children.”
I cannot help but wonder whether and how the many hundreds of federal prosecutions of persons guilty only of downloading child porn on their computers plays a role in the success of Operation Cross Country and the FBI’s Innocence Lost initiative. If there is evidence to indicate that the frequent prosecution and tough sentencing of persons guilty of downloading child porn in fact plays a significant role in helping the feds crack down on child sex trafficking, I would be much less trouble by how these cases often get handled. In my experiences in a few cases, however, many downloaders of child porn getting the sentencing book thrown at them had no connection with actual child sexual abuse offense and were not able to provide the feds with helpful information about anyone directly involved in such abuse.
Sunday, July 28, 2013
Is 898-year federal sentence symbolic and meaningful or senseless and misguided?The question in the title of this post is prompted by this federal sentencing story out of Texas, headlined "Victim Assaulted by Fake Producer Finds Closure in Sentencing," which was sent my way by Josh Blackman. Here are the basics:
898 years is what a Gemase Lee Simmons will now have to serve for 39 counts of various bank fraud and child pornography offenses. Simmons would tell young men and women that he had a modeling agency and as part of their "sessions" would take naked pictures of some of them.
Bianca Love, a victim, told the judge in federal court that Simmons had scammed her out of money and sex.
Jailers also informed the judge that while waiting for his sentencing Simmons had managed to get other sexual predators to perform sex acts on him. According to investigators Simmons told 2 other prisoners that it was part of a test the U.S. Attorney's Office administered. Simmons told them he would help them to pass it so they would get less time.
For a much more literary account of this case, I discovered this fascinating opinion discussing the defendant and his crimes. The opinion is authored by Chief District Judge Fred Biery (WD Texas) to explain his conclusion, after a bench trial, that Simmons was guilty of all the counts against him (and likely many more). This opinion is a must read in part because, in less than four pages, it makes reference to, inter alia, The Wizard of Oz, Catch Me if You Can, Something Wicked This Way Comes, and Dante's Inferno. In addition, in response to a quote from the defendant's trial testimony, the judge in this opinion drops a footnote which simply reads: "LOL".
Though I really enjoyed reading the opinion linked above and I can see why Chief Judge Biery was eager to throw the book at Gemase Lee Simmons, I still question the decision to impose a sentence of 898 years. (In addition, as Josh suggested to me, such an extreme sentence might give the defendant here a non-frivolous claim on appeal that his sentence is unreasonable.) I tend not to be a fan of legal fictions or of treating the imposition of hundreds of years in prison as just numbers on a page. While I suspect that a life sentence was not possible because none of the charges carried such a statutory term, I also suspect that a potent message without such a crazy number would have been sent had Chief Judge Biery imposed a terms of, say, 100 years.
That all said, the fact that Chief Judge Biery imposed a sentence of 898 years caught Josh's attention and mind, and perhaps that was part of what Chief Judge Biery hoped to achieve with this remarkable sentencing term. And if Chief Judge Biery were to write another sensational (and short) opinion to explain his lastest decision in this case, I might well come to the conclusion that the societal ends justify the sentencing means here.
Saturday, July 13, 2013
"Juveniles, Sex Offenses, and the Scope of Substantive Law"The title of this post is the title of this notable new article by Carissa Byrne Hessick and Judith M. Stinson now available via SSRN. Here is the abstract:
Substantive criminal law is an important factor in determining whether a juvenile will be tried as a juvenile or transferred to adult court. In particular, the gravity of the offense with which the juvenile is charged is a key component of most states’ discretionary waiver statutes, and it disproportionately influences judges when deciding whether to transfer juveniles. As a general matter, sex offenses are considered serious crimes. And a number of serious sex offenses are criminalized because of the victim’s age. These severe penalties reflect a policy determination on the part of legislatures that when sexual activity is illegal, either in whole or in part, because of the age of one of the participants — a category of crimes that we refer to as "age-determinative sex offenses" — participation in that activity is a serious crime.
The question we seek to answer in this Article is whether the justice system ought to distinguish between adult and juvenile offenders for these age-determinative sex offenses when assessing the seriousness or gravity of these crimes. We believe it should. In particular, this Article argues that, when the juvenile is in the same peer group as the victim — that is to say, the age difference between the victim and the offender is not large — substantive criminal law should recognize that an age-determinative sex offense is not nearly as serious as it would be if committed by an adult.
Monday, July 08, 2013
"In Opposition to the Mandatory Registration of Juvenile Sexual Offenders"The title of this post is the title of this short paper by David Katner, which is now available via SSRN. Here is the abstract:
The mandatory registration of juvenile sex offenders incorrectly assumes that the same dynamics of adult sex offenders apply to juveniles. In doing so, this group of juveniles is labeled and placed in a category that will ultimately hinder their development, rather than contribute to their rehabilitation. Accordingly, this mandated registration will have a negative effect on these individuals along with society as a whole based upon how they are perceived by others in the community and their lack of ability to contribute to the greater good.
Thursday, July 04, 2013
Missouri Gov vetoes bill to take juve sex offenders off state registryAs reported in this AP story, headlined "Nixon vetoes sex offender measure," the Governor of Missouri is apparently concerned this holiday week that a bill passed by his state's legislature will provide for too potential much freedom for juvenile sex offenders. Here are the basics:
Gov. Jay Nixon on Wednesday vetoed legislation that he said would remove sex offenders who commit their crimes as juveniles from websites that let the public know who they are, a day after he signed a measure that strengthens laws against sexual offenses.
Nixon said the vetoed measure is too broad. “It would grant this relief to juvenile sex offenders regardless of the sexual offense for which they were convicted to include forcible rape, forcible sodomy and child molestation,” said Nixon, who was state attorney general before becoming governor.
“Moreover, the bill would deprive victims of sex offenses the opportunity to be heard before an offender is removed from the very websites that are designed to protect victims and other members of the public.”...
State lawmakers return to the Capitol in September to decide whether they will try to override any vetoes.
On Tuesday, Nixon signed a criminal justice bill that includes a change to what constitutes rape. It had been defined as having sex with another person by use of “forcible compulsion,” which includes the use of a substance to physically or mentally impair another without his or her knowledge or approval. The new law broadens that to include instances in which someone is incapacitated, is incapable of consent or lacks the capacity to consent.
July 4, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, July 02, 2013
Released sex offenders in Great Britain soon to be required to take regular polygraph testsAs reported in this article from across the pond, a novel (and apparently somewhat efficacious) approach to sex offender monitoring is being expanded in part of Great Britain after a successful pilot program. The article is headlined "Lie detector tests set to be introduced to monitor sex offenders: Politicians expected to approve law allowing compulsory polygraph tests of sex offenders released into community," and here are excerpts:
MPs are expected to clear the way for the introduction of compulsory lie detector tests to monitor convicted sex offenders across England and Wales from next January.
The national rollout of US-style mandatory polygraph tests for serious sex offenders who have been released into the community after serving their prison sentence follows a successful pilot scheme. The trial was carried out from 2009-11 in two Midlands probation areas and found that offenders taking such tests were twice as likely to tell probation staff they had contacted a victim, entered an exclusion zone or otherwise breached terms of their release licence.
Continuing concerns about the reliability of the tests and misinterpretation of the results mean they still cannot be used in any court in England and Wales. But it is expected that the compulsory polygraph tests will be used to monitor the behaviour of 750 of the most serious sex offenders, all of whom have been released into the community after serving a sentence of at least 12 months in jail.
The tests involve measuring reactions to specific questions by monitoring heart rate, blood pressure, breathing and levels of perspiration to assess whether the subject is being truthful. The results will be used to determine whether they have breached the terms of their release licence or represent a risk to public safety and should be recalled to prison.
The power to introduce compulsory lie detector tests was put on the statute book six years ago in the Offender Management Act 2007. On Tuesday MPs will debate secondary legislation in the form of a statutory instrument to come into force from 6 January 2014. The House of Lords will be asked to approve it later this month.
The justice minister Jeremy Wright said: "Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.
"We recently announced the creation of a National Probation Service tasked with protecting the public from the most high-risk offenders. They will be able to call on this technology to help stop sex offenders from reoffending and leaving more innocent victims in their wake."
Hertfordshire police used the tests in a pilot scheme in 2011 to help decide whether to charge suspected sex offenders and gauge the risk they posed to the public. "Low level" sex offenders were involved in the original pilot. At least six revealed more serious offending and were found to pose a more serious risk to children than previously estimated. A further trial was ordered but at the time the Association of Chief Police Officers voiced caution about the adoption of such tests: "Polygraph techniques are complex and are by no means a single solution to solving crimes, potentially offering in certain circumstances an additional tool to structured interrogation," a spokesman said.
Polygraph testing is used in court in 19 states in America, subject to the discretion of the trial judge, but it is widely used by prosecutors, defence lawyers and law enforcement agencies across the US.
I find curious that this article speaks of "US-style mandatory polygraph tests"; I am not aware of any US jurisdiction that uses mandatory polygraph testing as part of a program of sex offender monitoring. That said, I would not be at all surprised if some jurisdictions in the US were to consider such a requirement if there is good reason to believe that such testing does a reasonable job of sorting out more (and less) dangerous released sex offenders.
Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty. For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).
July 2, 2013 in Criminal justice in the Obama Administration, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (19) | TrackBack
Friday, June 28, 2013
Oklahoma Supreme Court finds state's new sex offender registration requirements punitive and thus limited by ex post facto doctrineAs reported in this local article, headlined "Attorney says up to 3,000 registered Oklahoma sex offenders could benefit from ruling," the top court in Oklahoma handed down a major ruling this week limiting the reach of the state's sex offender registration law. Here are the basics:
[T]he court ruling said Corrections Department officials have been violating the Oklahoma Constitution by retroactively applying state sex offender laws, thereby dramatically increasing the time many convicted sex offenders must remain listed on the registry.
Rejoicing in Tuesday's ruling was convicted sex offender Brad Crawford, 58, of Oklahoma City. “It means a lot to me. It gives me freedom. It takes a monkey off my back,” said Crawford, who was convicted in 1998 in Canadian County on a charge of lewd or indecent proposals/acts to a child. “I'm tired of dealing with them and their harassment.”
Crawford lamented that being listed on the registry limits offenders from living where they want and watching their grandkids' baseball games. Registered sex offenders are not allowed to live close to schools, playgrounds or licensed child care centers....
Crawford's crime was peeking over the top of a tanning booth. He said Crawford thought he was sneaking a peek at a woman, which might have brought misdemeanor peeping Tom charges. The “woman” turned out to be a 15-year-old girl who was a day shy of her 16th birthday, so Crawford was convicted of the more severe felony charge of lewd acts with a child....
Crawford originally received a five-year suspended sentence, except for 30 days in the Canadian County jail. He also was placed on the sex offender registry for 10 years....
However, before the 10 years was over, the Oklahoma Legislature passed new laws in 2007 that created a three-tiered risk level assessment system. The law required convicted sex offenders to be placed on the sex offender registry for 15 years, 25 years, or life, depending on their assessment levels....
Jerry Massie, spokesman for the Corrections Department, said department officials are discussing the Court's ruling and expect to post something on the agency's website within the next day or two, explaining how the department will comply with the decision.
Preliminary discussions have centered on department officials reviewing the registry and removing the names of sex offenders who appear to qualify under the court's ruling. Massie said no time frame has been established for such a review, but it “might take a month or so.” At the end of the process, sex offenders who believe they were wrongfully kept on the registry could ask to have their cases reviewed, he said.
The full Oklahoma Supreme Court ruling is available at this link, and here are a few paragraphs from its closing sections:
Here we are not balancing the rights of sex offenders against the rights of their victims. We are making a determination as to whether the means chosen to protect the public have exceeded the state's valid interest in public safety and infringed on the Oklahoma constitutional prohibition against ex post facto laws.
Out of the seven Mendoza-Martinez factors we have reviewed herein, five favor a punitive effect. It is not the number that is important but the weight of these factors that leads us to our conclusion. SORA's obligations have become increasingly broad and onerous. We find there is clear proof that the effect of the retroactive application of SORA's registration is punitive and outweighs its non-punitive purpose. The retroactive extension of SORA's registration is inconsistent with the ex post facto clause in the Oklahoma Constitution.
This is not to say that Oklahoma's Sex Offender Registration Act (SORA) is unconstitutional on its face. A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants. The Oklahoma Constitution prohibits the addition of sanctions imposed on those who were already convicted before the legislation increasing sanctions and requirements of registration were enacted.
"Should child porn 'consumers' pay victim millions? Supreme Court to decide."
The title of this post is the headline of this new Christian Science Monitor piece discussing the Supreme Court's grant of certiorari yesterday in Paroline (noted here). Here is how the piece gets started:
The US Supreme Court on Thursday agreed to examine whether anyone convicted of possessing images of child pornography can be required to pay a multimillion dollar restitution award to the abused child depicted in the illicit images — even if the individual had no direct contact with the child-victim.
Under the Mandatory Restitution for Sexual Exploitation of Children Statute, Congress said that a judge “shall order restitution” for the victim in a child pornography case in “the full amount of the victim’s losses.” The law applies to those who personally engage in physical abuse of a child while producing pornographic images of the abuse. But the question in the appeal is whether the same law requires anyone who views or possesses the resulting child pornography to also pay the total amount of restitution.
The issue has arisen in hundreds of cases across the country involving possession of child pornography. The vast majority of courts have declined to require child pornography consumers (as opposed to producers) to pay the full amount of restitution. Only one federal appeals court, the New Orleans-based Fifth US Circuit Court of Appeals, has ordered full restitution under such circumstances.
On Thursday, the Supreme Court agreed to examine a case from the Fifth Circuit and decide whether the government or the victim must be able to prove there is a causal relationship between the defendant’s conduct and harm to the victim and the victim’s claimed damages.
Recent related post:
Thursday, June 27, 2013
Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence child porn downloading in Bistline
As first reported in this post, a Sixth Circuit panel early last year in US v. Bistline, 665 F.3d 758 (6th Cir. 2012), ruled that is was substantively unreasonable to impose a non-prison sentence on a defendant who "pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer" and faced a recommended guideline sentence of 63-78 months’ imprisonment." Thereafter, just about a year later as reported in this post, U.S. District Judge James Graham resentenced this defendant to the same sentence imposed the first time around, but also ruled that the 70-year-old Richard Bistline must be confined to his Knox County home for the first three years of probation.Today, via US v. Bistline, No. 13-3150 (6th Cir. June 27, 2013) (available here), the same Sixth Circuit panel has yet again deemed this sentence substantively unreasonable through an opinion that quotes a lot of what the panel said the first time around. Here is how the lastest Bistline opinion concludes:
Throughout the process of imposing Bistline’s first sentence and then his second, the district court placed excessive weight on the few factors that favor a lesser sentence, while minimizing or disregarding altogether the serious factors that favor a more severe one. The result once again was an abuse of the district court’s discretion. The sentence imposed on remand does not “reflect the seriousness of the offense”; it does not meet the retributive goal of “provid[ing] just punishment for the offense”; and it does not “afford adequate deterrence to criminal conduct[,]” among other deficiencies. 18 U.S.C. § 3553(a)(2)(A), (B). Bistline’s sentence is substantively unreasonable.
The government also requests that we reassign the case to a different district judge for resentencing. In deciding whether to reassign a case, we consider, among other factors, “whether the original judge would reasonably be expected . . . to have substantial difficulty in putting out of his mind previously-expressed views or findings[.]” United States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (first alteration in original) (quoting Bercheny v. Johnson, 633 F.2d 473, 476–77 (6th Cir 1980)). The record in this case makes clear that the district judge would have such difficulty here. Moreover, on remand, the district judge said the following: “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it.” We therefore grant the government’s request to reassign the case.
Bistline’s sentence is vacated, and the case remanded for reassignment and resentencing.
At this stage, and with a reassignment now ordered, it will be interesting to see if the defendant here might seek en banc review or even certiorari in an effort to find a group of judges who might be prepared to conclude this sentence is reasonable despite being well below the calculated guideline range.
Prior related posts:
- Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
- District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal
UPDATE: Over at the Sixth Circuit Blog, Bradley Hall has this new lengthy post about the Sixth Circuit's work in Bistline which it titled "The Sixth Circuit is a Sentencing Court." It gets started this way:
In a troubling line of cases culminating in today’s decision in United States v. Bistline (Bistline II), the Sixth Circuit has engaged in "substantive reasonableness" review to impose an inflexible rule that in cases involving the possession of child pornography, district courts must impose prison sentences, regardless of whether their analysis of the 18 U.S.C. § 3553(a) factors tells them that prison would be "greater than necessary" to effectuate the statutory goals of sentencing, and regardless of the fact that Congress itself elected not to impose a mandatory minimum sentence.
The analysis in this post reinforces my sense that the defendant here ought to at least take a shot at en banc review before concluding that the Sixth Circuit has essentially mandated that he get sent to federal prison.
June 27, 2013 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack
SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courtsAs reported here at SCOTUSblog, the Supreme Court wrapped up some business today via a final order list which included to criminal justice cert grants:
In a final round of orders for the Term, the Supreme Court on Thursday granted two new cases, and sent back a case on abortion rights back to an Oklahoma state court, asking for answers to specific questions on the impact of a new state law.
The Court agreed to hear, in its next Term, the cases of White v. Woodall (12-794) and Paroline v. United States (12-8561), limiting the question in that second case to a newly crafted question about restitution orders in child pornography cases. (Case page is forthcoming in Paroline.)
Woodall is one of those (always too popular) capital habeas/AEDPA cases that seems more about error-correction than changing the jurisprudential course of capital habeas review. But Paroline has the Justices finally agreeing to take on the vexing, dynamic and very consequential issue of criminal restitution awards in federal child pornography sentencing. Here is how the Justices' teed-up the issue in Paroline for consideration next term:
The petition for a writ of certiorari is granted limited to the following question: What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259.
I will have lots and lots to say about the Paroline grant and the issues it raises in the weeksn and month ahead. But already making my head hurt is the intriguing question of just who can, will and should get a chance to present arguments in Paroline.
Obviously, Doyle Paroline, the criminal defendant who petitioned for cert and is seeking to avoid a restitution punishment, will be represented and make arguments to the Supreme Court contended he should not have to pay restitution as part of his criminal sentence for downloading child pornography. And United States, of course, is the respondent which will be represented by the Solicitor General's office and likely will make arguments for a possible restitution award as part of a federal criminal sentence for downloading child pornography. But the real "parties of interest" in this new SCOTUS case (and hundred of other to be impacted by a ruling in Paroline) are the (many thousands of) victims of child pornography offenses.
Thanks to the federal Crime Victims Rights Act, lawyers for the victims of child pornography offenses have often been able to play an active and vocal role in lower courts as they adress the difficult statutory interpretation issue now taken up by SCOTUS in Paroline. Will these lawyers get a chance to argue before SCOTUS in Paroline? Might the CVRA be read to suggest that the Supreme Court must, or at least really should feel compelled to, give one (some? many?) counsel on behalf of child porn victims a chance to present oral argument to the Court? Should brief from lawyers or groups respresenting child porn victim be styled amicus briefs in the Supreme Court or are they really party briefs that need to be filed under the distinct rules and timeline for such filings?
Monday, June 24, 2013
Big SCOTUS majority blesses congressional power to go after sex offenders through SORNAThough Supreme Court anticipation now is mostly about matters tangential to the interest of truly hard-core sentencing fans, there was one last case dealing with federal regulation of sex offenders that SCOTUS handed down this morning. Here is the early report via SCOTUSblog:
U.S. v. Kebodoeux. The Fifth Circuit is reversed and remanded. Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause.
Justice Breyer has the opinion for hte Court. Vote is 7-2. Chief Justice files a concurring opinion (in the judgment only) joined by Alito; Justice Scalia dissents, for himself; Justice Thomas dissents in an opinion joined in part by Justice Scalia.
SORNA is the Sex Offender and Registration Notification Act.... Here is the opinion in Kebodeaux, the SORNA case.
Friday, June 07, 2013
Welcome to the blogosphere: "The Civil-Criminal Distinction Blog"
I am pleased to learn that the idea of academics starting new blogs about legal issues has not yet become passé, as evidence by this new blog titled "The Civil-Criminal Distinction Blog." This title, obviously, reveals the planned focus for this new blog, but this about page provides these additional details about the author and his plans:
My name is Alexander Blenkinsopp. I am a graduate student at Harvard University. You can e-mail me at firstname.lastname@example.org.
This blog is dedicated to documenting and analyzing the blurry distinction between civil law and criminal law. I intend to use this space to call attention to interesting scholarship on the topic, to highlight current news involving the civil-criminal distinction, to discuss cases implicating this subject, and to share my own thoughts on the issue. I welcome comments, both on the blog itself and via e-mail. My introductory post provides more information.
The modern regulation of sex offenders seems likely to be a frequent topic on this new blog, as evidenced by these two recent substantive posts:
- South Carolina Supreme Court on GPS Monitoring of Sex Offenders
- Continued questions about civil commitment of sex offenders