Sentencing Law and Policy

Sex offenders claim First Amendment violated by local Halloween ordinance targeting them

The Ventura County Star has this interesting article, headlined "Lawsuit seeks to block Simi Valley's Halloween sex offender ordinance," reporting on a notable (and groundbreaking?) legal action against a common local law this time of year.  Here are the details:

A federal lawsuit filed Friday seeks to block enforcement of Simi Valley's new Halloween sex offender ordinance, contending it is unconstitutional.  The lawsuit alleges that the ordinance violates the First and 14th Amendments because it "suppresses and unduly chills protected speech and expression."

The suit was filed in U.S. District Court in Los Angeles by five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents.  They are identified only as John and Jane Does.

It's the first time one of the Halloween sex offender laws passed by a number of California cities, including Ontario and Orange, has been challenged in court, said Santa Maria attorney Janice Bellucci.

Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit, which also seeks unspecified financial damages, on behalf of the plaintiffs.

Simi Valley City Attorney Marjorie Baxter said the lawsuit is groundless.  "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously," she said.

The Simi Valley City Council adopted the law — the only one of its kind in Ventura County — to prevent sex offenders from having contact with trick-or-treating children on Halloween. Championed by Mayor Bob Huber, a lawyer who is seeking re-election in November, the measure applies to the several dozen convicted child sex offenders who live in the city and are listed on the Megan's Law website.

The ordinance requires the offenders to post signs on their front doors saying, "No candy or treats at this residence."  It also bars them from opening their doors to children on the holiday, displaying Halloween decorations or having exterior lighting on their property from 5 p.m. to midnight on Oct. 31....

The lawsuit argues that the ordinance prohibits "a discrete and socially outcast minority from expressing any publicly viewable celebration of Halloween" and "forces this group to impose a burden on their own safety and that of any person who resides with them by requiring them to turn off all exterior lighting at their residences on Oct. 31 every year." The ordinance also publicly shames the sex offenders "by mandating that they place a large content-specific sign on their door every year," the lawsuit contends.

But Councilman Mike Judge noted at the council's Aug. 20 meeting that the ordinance was limited to registered sex offenders on the Megan's Law website, which publicly lists their identities.  "We're not branding them," Judge, a Los Angeles police officer, said. "They're already branded."

Bellucci argues that there are no reported instances of a child being molested while trick-or-treating. According to her group's website, the organization is "dedicated to restoring civil rights for those accused and/or convicted of sex crimes."

Notable contrasts between Irish and US sentencing responses to child porn possession offenses

The Irish Examiner has this notable new piece, headlined "Sentences contrast in Ireland and US," discussing the very different punishment schemes for child porn downloaders in two not-so-different nations.  Here is how the piece gets started:

What is an acceptable sentence for the possession of child pornography? That’s downloading and viewing the images, not being physically present when the abuse was carried out and the images made.

Consider two cases which progressed through the courts on opposite sides of the Atlantic within a year of each other.

In May, a British national, Simeon Betts, appeared in court in Ireland charged with a stash of child pornography which included 50 videos. The material found on three laptops included the rapes of children as young as four, and gardaí said the level of abuse was of the "upmost scale". Adult males were filmed raping the children, and in one instance an animal also featured in the abuse. For the possession of such sickening material, Betts, aged 45, was sentenced at Limerick Circuit Court to four years in prison, with the final two years suspended.

Now consider the case of Daniel Enrique Guevara Vilca, a 26-year-old who appeared in a Florida court room in November. Vilca had been caught with a significant stash of images — he faced 454 counts. Some of the videos and pictures showed boys aged between six and 12 years engaged in sexual activity with adults and each other. For possessing the images, Vilca was sentenced to life in prison without the possibility of parole....

These two cases show the extremes in which different jurisdictions view the crime of child pornography — and how the leniency or severity are both subject to significant scrutiny among their populations.

In America, the US Sentencing Commission is reviewing the sentencing guidelines for the crime. A survey of the country’s federal judges even found that 70% thought the sentences were too high. Many possession offences in the US carry a minimum tariff of five years and the average sentence handed down is seven years.

Here, sentencing for child pornography crimes falls under the Child Trafficking and Pornography Act, 1998. That legislation states that, for producing or distributing child pornography, the maximum sentence is 14 years in prison. For possession, the maximum sentence is five years.

Seventh Circuit affirms 40-year (below-guideline) sentence for child porn producer

Though not especially ground-breaking, a Seventh Circuit panel opinion today in US v. Chapman, No. 11-3619 (7th Cir. Sept. 20, 2012) (available here), covers a lot of ground that arises in a lot of federal child pornography sentencing cases.  Here is how the extended opinion begins:

Rondale Chapman pleaded guilty to producing child pornography, a crime punishable by no less than 15 years in prison. See 18 U.S.C. § 2251(a), (e).  For several years Chapman, now 46, lured kids as young as 12 to his home with marijuana and alcohol and filmed them, usually through “peepholes,” engaging in sexually explicit conduct. Chapman faced a guidelines range of life imprisonment and was sentenced to a total of 40 years.  On appeal he contends that the district court did not fully evaluate his arguments in mitigation, and also failed to adequately explain its choice of sentence. On the surface the first of these contentions seems plausible, but only because Chapman exaggerates the evidence presented at sentencing about his background.  When we look beyond his embellishment, it becomes clear that the “mitigating” factors he cites lacked evidentiary foundation or amounted to “stock” arguments that required no response from the judge. For that reason we affirm Chapman’s sentence.

South Carolina Supreme Court reconsidering big constitutional ruling concerning broad GPS tracking

As reported in this prior post, last May the South Carolina Supreme Court issued a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here).   Via this new AP article, I now see that this Dykes case was reheard today, though it is not clear whether we may get a new (or clearer) opinion this time around. Here are the basics:

Even after hearing the case a second time, the South Carolina Supreme Court isn't sure it is fair to make some sex offenders in the state face lifetime satellite monitoring of their every move without any chance of appeal.

The justices Tuesday reheard a case from May where they decided the monitoring may be too harsh in some cases. The Department of Probation, Parole and Pardon Services asked the court to reconsider its ruling, saying their decision rewrote the law.

A lawyer for Jennifer Dykes again argued her constitutional rights were violated because she had no chance to appeal or revisit the decision to put a bracelet on her ankle that reports her every move to state authorities.

Dykes, 32, was ruled to be a sex offender after being convicted of a lewd act on a child charge stemming from her relationship with a 14-year-old girl in Greenville County several years ago. She was found to be at low risk to abuse a child again.

After violating her probation by drinking alcohol, continuing a relationship with a convicted felon she met while behind bars and rescheduling too many appointments for sex offender counseling, Dykes' probation was revoked, according to court documents.

The probation violation meant under state law authorities could seek lifetime monitoring for Dykes without a chance of appeal.... Dykes' lawyer, Chris Scalzo, held up his wedding ring and said while he loves his wife and wears it nearly all the time, he can take it off. "She's not allowed to take that thing off her body unless there is a court order," Scalzo said.

An attorney for the probation agency, John Aplin, said lawmakers passed the lifetime monitoring law to protect the public. "The reason you are tracking that person every minute of every day for the rest of their life is to protect children from further future harm. It's also to help law enforcement solve crimes," Aplin said.

Chief Justice Jean Toal said she understands the need for public safety from the most dangerous offenders. But she said it is a fair question to ask if a one-size-fits-all law that doesn't allow a timely chance to appeal the ruling or ask a judge to revisit whether an offender is still dangerous is constitutional. "This court has no grief for sex offenders. But there are certainly different levels," Toal said.

Associate Justice Kay Hearn, who wrote her own opinion in May suggesting that revealing every detail of Dykes' private life to state officials violates her constitutional rights, pointed out that Dykes was not considered to be a dangerous sex offender who preys on children and would likely never change her behavior.

Prior related post:

• South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds:

Jerry Sandusky's sentencing scheduled for October 9, 2012

This Reuters article reports on the latest scheduling information for what seems likely to be a closely watched, but somewhat unsuspenseful, forthcoming state sentencing in Pennsylvania.  here are the basics:

Convicted child molester Jerry Sandusky will face sentencing immediately after an October 9 hearing to determine if the former Penn State assistant football coach is a sexually violent predator, a judge said on Monday.

The hearing will be held at the Centre County Courthouse in Bellefonte, Pennsylvania, Judge John Cleland said in an order published online. A sentencing conference will be held October 8.

Sandusky, 68, was convicted in June of 45 counts of child molestation as part of a scandal that shook college football and focused national attention on child sex abuse. He faces up to 373 years in prison for sexually abusing 10 boys over a period of 15 years, including while he was the highly regarded defensive coordinator at powerhouse Pennsylvania State University.

Designating Sandusky a sexually violent predator would put him under stringent reporting requirements if he is put on probation after release from prison. The court will consider the recommendation of the state Sexual Offenders Assessment Board. Normally a determination hearing takes place the same day as sentencing, but the scale of Sandusky's case could mean sentencing would take place later.

Dan Filler, a law professor at Philadelphia's Drexel University, said Cleland had options in sentencing, but the outcome would be the same for Sandusky. Cleland could have the 45 sentences run one after the other or at the same time. He also could impose the maximum or minimum under sentencing guidelines, and take Sandusky's lack of prior convictions into consideration, Filler said.

"In the end, however, judges are very politically sensitive in cases like this. Whatever the guidelines call for, I believe the judge will impose a sentence that is functionally life without hope of parole," he wrote in an email before the hearing date was set.

I will be truly shocked if Sandusky does not get a sentence that ensures he will die in prison. The only real suspense will be how the state judge in this case chooses to structure the sentence and whether, like the federal sentencing judge in the Bernie Madoff case, considers maxing out the sentence in order to try to "send a message" to both the victims and society concerning this kind of offense.

California appeals court upholds as-applied challenge to sex offender residency restriction of Jessica's Law

As reported in this local article, headlined "San Diego Sex Offenders Upset Residency Limit," there mas a notable ruling earlier this week concerning California's sex offender residency restrictions. Here are the basics from the press report:

It is "unreasonable" and "oppressive" to forbid registered sex offenders from living within 2,000 feet of a school or park, a California appeals court ruled.

California voters adopted Proposition 83, also known as Jessica's Law, in 2006 to impose strict regulations on registered sex offenders. One provision in particular prohibits sex offenders from living within 2,000 feet of any school or park.

In 2010, the California Supreme Court ruled that the housing restriction applies to all paroled sex offenders, regardless of when they committed their crime, but the court said it did not have enough evidence to rule on law's constitutionality.

Following this ruling, William Taylor, Jeffrey Glynn, Julie Briley and Stephen Todd, all registered sex offenders living in San Diego County, challenged the residency restriction in Superior Court. All four parolees were unable to find housing after their release: Taylor and Briley lived in an alley behind the parole office on the advice of their parole agents, Todd lived in the San Diego riverbed with other registered sex offenders who had no place to live, and Glynn lived in his van.

In 2011, Judge Michael Wellington held an eight-day evidentiary hearing in which experts testified that 24.5 percent of San Diego residential properties comply with the Jessica's Law residency requirement, but most of these dwellings are single-family homes. Less than 3 percent of multifamily housing meets the requirement.

Wellington subsequently ruled that the parole condition was "unconstitutionally 'unreasonable'" because it "violated petitioners' right to intrastate travel, their right to establish a home and their right to privacy and was not narrowly drawn and specifically tailored to the individual circumstances of each sex offender parolee."

California's Fourth Appellate District affirmed Tuesday, finding that the law's "blanket enforcement as a parole condition in San Diego County has been unreasonable and constitutes arbitrary and oppressive official action."

The full 37-page appellate panel ruling is available at this link, and here are the final two substantive paragraphs:

Glynn and Taylor are registered sex offenders because each of them committed a sex crime against an adult; there is no hint of pedophilia in their histories.  The exclusion of parolees with backgrounds similar to Glynn and Taylor from living near schools and parks does not substantially protect children, but as the record here shows, it has tremendous impact on such parolees' rights and liberty without bearing a substantial relation to their crimes.  As in the cases of Glynn and Taylor, it prevented them from living with family members.  In Taylor's case, it also decreased his proximity to needed services and treatment.  By banning all sex offenders, the absolute residency restriction of Jessica's Law, when enforced as a parole condition, imposes a substantially more burdensome infringement on constitutional rights than is necessary to protect children from sex crimes.  As such, the blanket enforcement of section 3303.5(b) as a parole condition in San Diego County has been unreasonable and constitutes arbitrary and oppressive official action.

As noted by the trial court, its orders do not prohibit CDCR from individually enforcing the residency restriction of Jessica's Law as a parole condition for registered sex offender parolees in San Diego County.  The orders merely disallow CDCR from blanket enforcement of the residency restriction. Parole agents retain the discretion to regulate aspects of a parolee's life, such as where and with whom he or she can live. (§§ 3052, 3053, subd. (a).) Agents may, after consideration of a parolee's particularized circumstances, impose a special parole condition that mirrors section 3303.5(b) or one that is more or less restrictive. It is only the blanket enforcement — that is, to all registered sex offender parolees without consideration of the individual case — that the trial court prohibited and we uphold.

After high-profile child rapes, Koreans talk of physical castration and harsher sentencing for sex offenders

This news report from Korea, which is headlined "How should Korea combat pedophilia?", provides a useful reminder that America is not exceptional in its intense sentencing policy response to high-profile sex offenses against children.  Here are excerpts:

The kidnap and rape of a 7-year-old girl in Naju, South Jeolla Province, earlier this month has reopened the debate on how to deal with society’s most reviled criminals. Like the case of Cho Doo-soon, who brutally raped an 8-year-old girl in 2008, Ko Jong-seok’s heinous act has sparked a raft of proposals from lawmakers and law enforcement to deal with those who prey on children. In the days after the attack, the National Police Agency announced one month of increased police patrols and a crackdown on child pornography, while a lawmaker from the Saenuri Party, Rep. Park In-sook, proposed a bill that would allow for the physical castration of child rapists.

“How much these children suffer is unbelievably much, much more than the penalty they (the perpetrators) receive from the judge,” Park, a cardiologist by profession, told The Korea Herald on Friday.  Park rejected the suggestion that the procedure would be at odds with the principles of a civilized society, adding that it has few side effects and does not even require a general anesthetic.

“These children live with permanent damage, physically, mentally, and psychologically, neurologically … and economically … So if you compare the human rights of these criminals with the victims, whose human rights are more important? Who should be protected? It is just incomparable,” she said, pointing out that Finland, the Czech Republic and Germany, among other countries, allow the practice.

Park, who has also proposed the introduction of a smartphone application that would alert users to the location of convicted sex offenders within a 1 km radius, added that a recent opinion poll showed that 96 percent of Koreans support her castration bill proposal.  “This is the philosophy I had all my life but I had no chance to speak to the public until I came to the National Assembly,” she said.  “Also, the important thing is these crimes are getting worse and becoming more often.”

When it comes to an effective legal response to those who target children, understanding more about the scale and nature of the problem is crucial, said Korean Institute of Criminology research fellow Kim Han-kyun.  “The first step we need to take is to study and research the real reality of pedophiles and sex offenders against children in our society, then we may have specific and substantive measures against pedophiles,” said Kim. “But the problem is no one knows yet how many pedophiles there are in our society and (how) serious the problem of pedophiles is now at the moment in our society.”

While it is unclear how many pedophiles exist in Korea ― U.S. estimates put the figure there at around 4 percent of the population ― recorded sex crimes against the young have risen in recent years.  The number of cases of sexual assault and rape against minors soared from 857 in 2007 to 2,054 last year.  Even more strikingly, the offender in 43 percent of cases from January to June 2011 involving victims under 13 received a suspended sentence.  Where prison sentences have been applied, they have often been seen by the public as excessively lenient. Cho Doo-soon’s attack on the 8-year-old known only as Na-young led to a 12-year prison sentence, a punishment widely denounced as too light for a crime that left a school girl with permanent, life-changing injuries.

“The statutory punishment on sex offenders and sex offenders against children is severe enough but the problem is the sentencing,” said Kim.  “Although South Korean legislators have made very strict and severe punishment, the judges have given soft sentences.  I think the sentencing guidelines for sex offenses against child should be amended for more harsh and strict sanctions on such offenders.”  A conservative, male-dominated judiciary is likely part of the reason for soft sentencing, added Park....

While pedophilia has long been termed a mental disorder, an increasing body of opinion in recent years has defined it as an unalterable sexual orientation, calling into question the effectiveness of treatment. In the U.S., about 50 percent of convicted pedophiles reoffend, though programs to treat the predilection have shown mixed success.

Explanations for the root causes also differ, ranging from childhood abuse to less white matter in the brain. “Pedophilia is related to low self-esteem, poor social skills and impaired self-concept, psychologically,” said Park. “The patients tend to be very shy and passive-aggressive when it comes to personality. Some doctors say this disorder is related to inappropriate attachment with the primary care-giver in childhood. Personally, I reckon poor cognitive inhibition of deviated sexual fantasy is the main cause of actual child sexual molestation.”

Fourth Circuit finds clearly erronoues district court findings on federal sex offender civil commitment

The Fourth Circuit has a lengthy and intricate opinion concerning a sex offender federal civil commitment proceeding today in US v. Wooden, No. 11-7226 (4th Cir. Sept. 6, 2012) (available here). Here is how it begins and ends:

Approximately three months before Walter Wooden was to be released from federal prison, the government sought to commit him as a "sexually dangerous person," 18 U.S.C.A. § 4248(a) (West Supp. 2012), under the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the "Act"), Pub. L. No. 109–248, 120 Stat. 587 (codified as amended in scattered sections of 18 and 42 U.S.C.A.). After an evidentiary hearing, the district court held that the government failed to prove Wooden suffered from pedophilia and failed to prove he would have serious difficulty refraining from re-offending. The court therefore dismissed the government’s petition and ordered Wooden released. The government appeals. For the reasons set forth below, we reverse the district court’s order and remand for reconsideration of the government’s petition on the existing record.....

To summarize, we hold that the district court erred in its conclusion that the application of the Act to Wooden violated the Due Process and Equal Protection Clauses of the United States Constitution. We also conclude that the record does not support the district court’s determination that Wooden does not "suffer[ ] from a serious mental illness, abnormality, or disorder" because he no longer suffers from pedophilia, 18 U.S.C.A. § 4247(a)(6), nor does the record support the district court’s determination that Wooden would not have "serious difficulty refraining from sexually violent conduct or child molestation if released," id., and we hereby reverse those factual findings as clearly erroneous.

Accordingly, we reverse the district court’s judgment dismissing the government’s petition seeking to commit Wooden, and we remand the matter to the district court for reconsideration.  On remand, the district court shall reconsider, on the basis of the existing record and in light of the questions about the district court’s original analysis and the concerns about the existing evidence raised in this opinion, whether Wooden is a sexually dangerous person within the meaning of the Act.

It is pretty rare to see a district court's detailed factual finding reversed as "clearly erroneous," but sex offender cases seem to have a way of bring out some legally rare events.

Third Circuit requires more rigorous approach to supervised release conditions

The Third Circuit handed down a notable opinion today in US v. Murray, No. 11-3196 (3d Cir. Sept. 5, 2012) (available here), which effectively reviews a good bit of doctrine and procedure concerning the imposition of supervised release conditions. Here is how the opinion gets started:

In 2004 in the District of New Jersey, Charles Murray pleaded guilty to traveling interstate to engage in illicit sexual conduct with a minor.  Later that same year, in a separate case in the Eastern District of Pennsylvania, he pleaded guilty to possession of child pornography.  For these offenses, he was sentenced to an aggregate term of 95 months' imprisonment, to be followed by concurrent three-year terms of supervised release. Both of Murray's sentencing judges imposed upon him various special conditions of supervised release that, for example, require him to register as a sex offender and to submit to unannounced searches of his computer.

After Murray was released from prison in July 2010, he moved to the Western District of Pennsylvania.  That District thus assumed jurisdiction over him for the remainder of his term of supervised release.  Though Murray had not violated his existing supervised release conditions, the Probation Office sought to modify them to bring them in line with the conditions of release that are typically used in the Western District.  Some of the Probation Office's proposed conditions were duplicative of those already mandated by the Eastern District of Pennsylvania and District of New Jersey, but others were new.  The District Court granted the Probation Office's request and imposed several new, more stringent conditions on Murray.  Murray now appeals.  For the reasons that follow, we will remand this case to the District Court.

This opinion struck me as blog-worthy because litigation over supervised release conditions for sex offenders is sure to keep increasing in the years ahead, and because the Third Circuit panel was forced to remand largely because the district court was so ready to impose additional onerous conditions on the defendant without even bothering to make the necessary findings.  For these reasons, I cannot help but wonder if this Murray ruling represents only the tip of a problematic supervised release iceberg.

"Sex Offender Exceptionalism and Preventive Detention"

The title of this post is the title of this notable symposium paper by Professor Corey Rayburn Yung, which is now available via SSRN. Here is the abstract:

The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law.  Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny.  While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb.  With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.

Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties.  The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed.  We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril.  Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future).  The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes.  To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly.  In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad.  Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence.  Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society.

California Supreme Court upholds 25-to-life term for sex offender's failure to register as third strike

The California Supreme Court issued a lengthy and nuanced Eighth Amendment ruling today rejecting an offender's appeal of his three-strikes sentence following his conviction for failing to update his sex offender registration.   These paragraphs from the start of the majority opinion in In re Cooley, No. S185303 (Cal. Aug. 30, 2012) (available here), reveal the essentials (and the nuances) of the ruling:

[I]n People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II), a panel of the California Court of Appeal, Third Appellate District, concluded in a two-to-one decision that a 25-year-to-life sentence under the Three Strikes law constituted cruel and/or unusual punishment, in violation of the federal and state Constitutions, as applied to a defendant whose triggering offense was the failure to annually update his sex offender registration within five working days of his birthday.  The defendant in Carmony II had properly registered as a sex offender at his current address one month before his birthday, had continued to reside at the same address throughout the relevant period, had remained in contact with his parole agent, and was arrested at that same address by his parole agent one month after his birthday.  Observing that "because defendant did not evade or intend to evade law enforcement officers, his offense was the most technical and harmless violation of the registration law we have seen" (127 Cal.App.4th at p. 1078), the majority opinion in Carmony II concluded that, notwithstanding the defendant‘s record of serious prior offenses, the imposition of a 25-year-to-life sentence was grossly disproportionate to the gravity of the defendant‘s offenses and violated the constitutional prohibition of cruel and/or unusual punishment.  Thereafter, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, addressing a cruel and unusual punishment claim in a factual setting very similar to that presented in Carmony II, reached the same conclusion as the California appellate court in Carmony II. (Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875.)

In the present habeas corpus proceeding, a panel of the Court of Appeal, Second Appellate District, Division Five, considering the constitutionality of a 25-year-to-life sentence imposed upon a defendant who also was convicted of failing to update his sex offender registration within five working days of his birthday, expressly disagreed with the analysis and conclusion of the appellate court in Carmony II and held that the punishment was constitutionally permissible.  In light of the conflict in the two Court of Appeal decisions, we granted review.

We agree with the Court of Appeal in the present case that imposition of a 25-year-to-life sentence upon petitioner in this matter does not constitute cruel and unusual punishment in violation of the federal Constitution, but, for the reason discussed more fully hereafter, we conclude that we need not and should not rest our holding upon a determination that the Court of Appeal opinion in Carmony II was wrongly decided.  The conduct of petitioner in this case, as found by the trial court, is clearly distinguishable in a significant respect from the conduct of the defendant in Carmony II.  Unlike the defendant in Carmony II, who had very recently registered at his current address and who the Court of Appeal found "did not evade or intend to evade law enforcement officers" (Carmony II, supra, 127 Cal.App.4th at p. 1078), the trial court in this case, in refusing to strike any of petitioner‘s prior convictions and in imposing a 25-year-to-life sentence under the Three Strikes law, found that petitioner‘s triggering offense was not simply a minor or technical oversight by a defendant who had made a good faith effort to comply with the sex offender registration law.  Rather, the court found that petitioner had never registered as a sex offender at his current address and had knowingly and intentionally refused to comply with his obligations under the sex offender registration law.

Petitioner‘s conduct, as found by the trial court, demonstrated that, despite the significant punishment petitioner had incurred as a result of his prior serious offenses, he was still intentionally unwilling to comply with an important legal obligation, and thus his triggering criminal conduct bore both a rational and substantial relationship to the antirecidivist purposes of the Three Strikes law.  Given that relationship and the extremely serious and heinous nature of petitioner‘s prior criminal history, we conclude that, under Ewing, supra, 538 U.S. 11, the imposition of a 25-year-to-life sentence does not constitute cruel and unusual punishment under the circumstances of this case. In light of the facts underlying the offense in this case as found by the trial court, we need not decide whether the Eighth Amendment prohibits the imposition of a 25-year-to-life sentence under the Three Strikes law in a factual situation like that in Carmony II, in which a defendant had properly registered his current residential address and demonstrated a good faith attempt to comply with the sex offender registration law but due to a negligent oversight had failed to update his registration within five working days of his birthday.

What should a registered sex offender do when running from a hurricane?

For anyone who ever wondered what registered sex offenders are supposed to do when a hurricane is headed toward them, the Attorney General of Louisiana has released this helpful notice for those in the path of Isaac:

Under Louisiana law, you are required to notify law enforcement of any changes in residence, including any temporary situation that may cause an absence from your usual place of residence for more than seven days.

If you are traveling to another state, you should check-in with the law enforcement agency in that location to determine the reporting requirements in that state.  If you decide you need to evacuate to a shelter, contact your local parish sheriff or Office of Emergency Preparedness and inform them that you are a registered sex offender/child predator who is seeking shelter as a result of Hurricane Isaac.  They will advise you of the shelter to which you must report.

The easiest and quickest way to comply with these reporting requirements is to log onto the Internet-based law enforcement notification service provided by the Louisiana Sheriffs’ Association at www.offenderwatchexpress.com.  If you are unable to access the Internet for any reason, you are required to directly notify the appropriate law enforcement agencies of the change in your geographic location.

Split Second Circuit upholds reasonableness of 30-year prison term for child porn convictions

A number of helpful readers have help make sure I did not miss today's must-read opinion from a split Second Circuit panel in US v. Broxmeyer, No. 10-5283 (2d Cir. Aug. 27, 2012) (available here).  Because I expect I will have subsequent posts commenting on this Broxmeyer ruling (in which the majority opinion runs 63 pages and the dissent another 20), I will start here by just posting the start of the majority opinion:

In 2008, former high school athletic coach Todd J. Broxmeyer was found guilty after a jury trial in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) of two counts of producing child pornography, see 18 U.S.C. § 2251(a) (Counts One and Two); one count of attempting to produce child pornography, see id. § 2251(a), (e) (Count Three); one count of transporting a minor across state lines with the intent to engage in criminal sexual activity, see id. § 2423(a) (Count Four); and one count of possessing child pornography, see id. § 2252A(a)(5)(B) (Count Five).  The victims of all these crimes were teenage girls under Broxmeyer’s purported tutelage and care.

On Broxmeyer’s first appeal, this court reversed his convictions on Counts One, Two, and Four.  See United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010).  As to the first two counts, the court concluded that the evidence was insufficient as a matter of law to permit the jury to find that Broxmeyer had solicited the production of — rather than simply received — the two images of child pornography at issue.  See id. at 124–27. As to Count Four, the court, by a divided vote, concluded that Broxmeyer’s interstate transportation of a 15-year-old girl after compelling her to engage in sodomy could not support a conviction for interstate transportation of a minor with intent to engage in criminal sexual activity, that object already having been achieved before the defendant crossed any state border. See id. at 128–30; see also id. at 130 (Wesley, J., dissenting in part). Vacating Broxmeyer’s original 40-year prison sentence, this court remanded for resentencing on the remaining two counts of conviction for possession and attempted production of child pornography.  See id. at 130.

Broxmeyer now appeals from so much of the amended judgment entered on December 29, 2010, as sentenced him to concurrent prison terms of 30 years on Count Three’s attempted production charge and 10 years on Count Five’s possession charge.  He argues that the sentence is infected by various procedural errors and, in any event, that 30 years’ incarceration is substantively unreasonable in his case.  Indeed, Broxmeyer maintains — and our dissenting colleague agrees — that any sentence higher than the minimum 15-year prison term mandated for Count Three, see 18 U.S.C. § 2251(e), would be substantively unreasonable.  We reject both arguments as without merit.

Second Circuit limits predicates triggerring 15-year child porn mandatory minimums

The Second Circuit has released today a lengthy and significant ruling concerning the application of mandatory minimum terms for those convicted of child pornography offenses. The panel opinion in US v. Beardsley, No. 11-2206 (2d Cir. Aug. 27, 2012) (available here) begins this way:

Defendant-appellant Wayne Beardsley appeals from a judgment of conviction entered in the Northern District of New York (Glenn T. Suddaby, Judge) following his plea of guilty to knowingly receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).  The district court sentenced Beardsley to fifteen years in prison, the mandatory minimum sentence established by 18 U.S.C. § 2252A(b)(1), which applies to defendants convicted of certain federal child pornography offenses who have a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”  On appeal, Beardsley argues that the district court erred in employing the “modified categorical approach” to analyze the facts underlying his prior state conviction for endangering the welfare of a child, and that under the proper standard -- the “categorical approach” -- his prior state conviction does not qualify as a § 2252A(b)(1) predicate offense.  We agree, and therefore vacate his sentence and remand to the district court for resentencing.

A local iPad innovation in technocorrections for sex offenders

Though surely not as big a deal as a big patent win in court, Apple shareholders should be pleased by this local article from Georgia reporting on a new corrections use for one of its signature products.  The article is headlined "Sheriff deputies use iPads to make sex offender checks," and here are excerpts:

The Muscogee County Sheriff's office is stepping into the 21st century. Deputies working in the sex offender squad are getting new tools to make checks on sex offenders easier. It's out with the old and in with new technology. Muscogee County Sheriff Deputies with the Sex Offender Squad are using iPads to check up on sex offenders. Sheriff John Darr says the iPads will save time and eliminate an excessive paper trail.

"You've got some of these sex offenders that has files of fifty or more pages," Sheriff Darr said. "Now you are going to be able to put it all in one little area."

The new iPad fleet cost a little more than $2,000, which came from the U.S. Marshal's Department. For now, only two deputies will have access to the new technology. They will run checks on the 387 registered sex offenders in Muscogee County. "It makes it more persuasive in this day of technology juries expect us to be able to show them pictures of things, videos of things they want to see that," District Attorney Julia Slater said.

Each sex offender's information is logged into the iPad. Now all a deputy has to do is scroll through the pages of documents in each offender's file. If they break the law, District Attorney Julia Slater says they will be prosecuted.

Did elderly child porn downloader seek to "retire" in federal prison?

This local federal sentencing story, headlined "Nevadan Returns to Prison for Possessing Child Pornography," caught my eye because the specifics led me to wonder if an elderly offender repeated his child porn crimes because he wanted to return to prison for his twilight years.  Here are the details of the story that prompts the question in the title of this post:

A Nevadan who served time behind bars for possessing and trading child pornography over the Internet is returning to prison for committing a similar crime, Nevada's U.S. Attorney Daniel Bogden said Thursday.  William Greenfield, 70, of Cal-Nev-Ari was sentenced Wednesday to nearly 22 years in prison by U.S. District Judge Kent Dawson. Greenfield pleaded guilty May 23 to one count of transporting child pornography.

"Each time a person receives, views and downloads child pornography they re-victimize the children depicted in the images," Bogden said. "Despite a previous federal prison sentence, this defendant continued his victimization of children undeterred. For the sake of his many victims, the lengthy prison sentence is both warranted and justified."...

Greenfield was released from federal prison on Nov. 8 after serving a 37-month prison sentence for possession of child pornography over the Internet.  But on Dec. 13 a Metro Police detective determined that an individual using email addresses traced to Greenfield's residence was receiving child pornography images and videos through two Yahoo email accounts.  Law enforcement officials executed a search warrant at Greenfield's residence a week later and recovered computers and digital devices.  A subsequent forensic analysis revealed that his computer contained more than 600 images and videos of child pornography, which had been received over the Internet....

Greenfield met with his federal probation officer in Las Vegas on March 14 and admitted he recently viewed child pornography.  Greenfield said that child pornography is his "thing," and that he was sexually aroused by talking to pedophiles.  He told his probation officer that he used the website Yahoo for his child pornography activities, and provided the officer his user name and password.  Greenfield also said he had a computer at his hotel room in Las Vegas.

The probation officer retrieved the computer and found a pornographic image of an approximately 5-year-old child, and notified the FBI.  Greenfield gave the FBI permission to operate his Yahoo account. The investigating agent found more child pornography in the Yahoo messaging account and determined that Greenfield transmitted images and videos of child pornography to other people over the Internet in February and March.

Perhaps the defendant in this case is so addicted to child porn that he can never not stop himself from downloading illegal dirty pictures.  But the basic timelines and investigatory details lead me to suspect that the offender he was eager to get sent back to federal prison for a very long time. 

To begin, it appears that within weeks (and perhaps days) of getting out of prison for downloading child porn, the defendant here was at it again.  No matter the level of one's addiction to dirty pictures, I would think an offender eager to remain free after spending three years in prison for a crime would not right away commit the same crime again.  Moreover, even after police searched his house in December, Geeenfield was up to his old illegal activities over the next few months even as he prepared to meet with his federal probation officer.  Then he admits all his illegal computer activity to his probation officer and apparently makes it pretty easy for the FBI to gather still more evidence about his illegal computer usage.

Further, if it is true that Greenfield is "sexually aroused by talking to pedophiles," then federal prison might just be a relatively happy place for him.  I suspect that during his stint in the federal pen, Greenfield may have received "treatment" in the form of group sessions with other incarcerated pedophiles.  Combine that form of perverted "entertainment" with free room, board and medical care provided by the Bureau of Prisons, and I cannot help but speculate that Greenfield decided following his release from federal prison last year that he was eager to go back and thus did what he needed to ensure a lengthy "retirement" in the federal penitentiary system.

Please know, all the above "analysis" is pure speculation after a long week of teaching.  It is quite possible (perhaps probable) that I have this case all wrong.  But I do not think I am wrong to be a least a bit concerned that the offender here was able (and perhaps eager) to find a way to get federal taxpayers to pay for all his care for what seems likely to be the rest of his life.

Federal magistrate orders(!?) Minnesota to convene Task Force to reform state's sex offender civil commitment

I just came across this interesting local story coming out of Minnesota last week, headlined "Minnesota must change sex offender program, judge orders." The story's report on a recent judicial order concerning Minnesota's civil commitment program strikes me as notable both as a matter of substance and procedure. Here are the details:

A federal judge has ordered Minnesota to reform its system for civilly committing and confining paroled sex offenders to indefinite treatment, a controversial practice that has drawn international criticism because almost no one has gotten out.

Chief U.S. Magistrate Judge Arthur Boylan on Wednesday ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program.  The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional.

Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.

The program was created to treat small numbers of the state's worst sex criminals who had completed their prison sentences but were deemed too dangerous to release. But the 2003 killing of college student Dru Sjodin by a rapist newly released from prison prompted a surge of commitments of all types of sex criminals, from rapists to nonviolent molesters. The state went from committing an average of 15 per year before 2003 to 50 per year after that pivotal year.

The program's population has soared to more than 600 -- the most sex-offender civil commitments per capita in the country. Only two have won provisional discharge. One of those, Ray Hubbard, was pulled back into a treatment lockup because a psychiatrist thought he might reoffend. He died shortly thereafter....

Former state Sen. Don Betzold, chief author of the 1994 Sexually Dangerous Persons Act that created the current civil commitment system and MSOP, said the courts have repeatedly upheld the law as constitutional because judges believed the confinement was for treatment and that the public has been reassured that a subset of dangerous sex offenders are not free to strike again. However, even Betzold, a lawyer, said the lack of releases is a problem because it invites the conclusion that the program's only purpose is confinement....

The lead attorney for the patients, Dan Gustafson, called Boylan's order "a significant step" toward making the MSOP more effective and fair. "If you're going to commit these folks, you have to give them legitimate treatment and the legitimate opportunity to get out," said Gustafson, adding that unless the state reforms the system, it risks that the courts will declare the program unconstitutional and order releases, or mandate program improvements more expensive than the state can afford....

Boylan ordered that the state try to pack the task force with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders....

[S]tate Rep. Tony Cornish, R-Good Thunder, who has studied the MSOP and civil commitment system as chair of the House committee on Public Safety and Crime Prevention Policy and Finance, ... said that when he and other legislators examined issues with the program this year, they found "there was no appetite in the Legislature for letting anyone out. They'd rather spend millions of dollars keeping people locked up than take the chance of something bad happening."

Now that a federal judge has ordered the state to look at other alternatives, policymakers may have to make decisions they find difficult to stomach, Cornish said, although the court mandate also may give them more of the political cover they need to make changes. "The die has been cast," Cornish said. "Now we have to find a blend that will satisfy the court but still protect the public."

Based on this press account, it is hard to tell if the order in this case from Chief U.S. Magistrate Judge Arthur Boylan is part of a consent agreement or some other negotiated settlement of the on-going lawsuit.  Whatever the formalities, I think it is unusual (and perhaps even inappropriate) for a federal magistrate judge to "order" a state official "convene a task force of experts to recommend" changes to a program which may be constitutional and to further demand that this task force be packed "with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders." 

I am all for expert task forces to examine and address seemingly problematic areas of a state's criminal justice system.  (Indeed, as noted here, I am a member of just such a task force in Ohio.)  That said, I have never heard of a federal judge ordering the creation and staffing of such a task force as part of the adjudication of a constitutional challenge to a state criminal justice practice.  Perhaps this kind of order is not unusual or inappropriate for this kind of litigation, but it sure seems noteworthy all the same.

Intriguing jury sentence in Texas for female teacher having group sex with (adult) students

There are so many intriguing elements to this local sentencing story out of Texas, I am not sure which part most merits commentary.  Here are the basics:

A former Kennedale High School teacher was sentenced to five years in prison Friday evening after Tarrant County prosecutors asked jurors to show moral outrage that she treated students like a "buffet of possible sexual partners."

Earlier Friday, the jury of seven men and five women deliberated less than an hour before convicting Brittni Colleps, 28, of 16 felony counts of improper relationship between an educator and student.   According to testimony, Colleps, a married mother of three, had sex with five male students, four of them 18 and one 19, several times at her Arlington home in spring 2011.  The jury was shown sexually explicit text messages and watched a cellphone video of Colleps having group sex with four of the students.

In the sentencing phase, her family, her attorneys and one of the students asked for the minimum sentence of probation, saying Colleps has been punished enough.  She needed to be home with her children -- girls ages 8 and 6 and a boy age 5 -- all of whom have acute asthma and allergies, they said....

Prosecutors asked for the maximum of 20 years on each count and a $10,000 fine.  "You don't have a crime captured on videotape very often, and that is what you have here," prosecutor Elizabeth Beach said.

She was graphic in reminding jurors of the sexual encounters.  The students did not wear condoms on the night the video was made, Beach said.  She described the amount of body fluids and possible diseases exchanged during the night as "staggering and it is disgusting. It's completely disgusting."...

The jury deliberated the sentence for a little less than three hours.  Although Colleps was technically given five years on each of 16 counts, the sentences will run concurrently.

Defense attorney Lex Johnston said Colleps must serve a year to 2.5 years before she is eligible for parole. Johnston, who worked with Cynthia Fitch, said:  "I think the jury will probably regret what they did. Nothing we can do about it.  The jury spoke.  We have some legal issues to work on later on down the road and we'll see what happens." He said the sentence sends the message that Texas is "too conservative for our own good." The Supreme Court will eventually tell Texas to back out of people's lives and bedrooms, he said.

"These were not boys. These were not children. These were grown men who connived, conspired, worked with each other to be with this woman whose husband was away serving the military," Johnston said.

Beach and co-prosecutor Tim Rodgers called the verdict "very fair." Prosecutors never offered Colleps a plea bargain because, Beach said, "we wanted a Tarrant County jury to evaluate and as the moral conscience of the community say this is what we think of this kind of behavior and we got a very clear message from the jury."...

Christopher Colleps was serving in the military outside the area when the crimes occurred. Frequently breaking into tears, he acknowledged that he and his wife, who have been married for nine years, had engaged in group sex with another adult couple while living in Louisiana.

The last year has been "pretty rough," he said, but he will stand by his wife. "I feel like what she did was morally and ethically wrong. I feel like she has hurt me and my children, but I feel that's between me and her and God."...

According to a news release from the Tarrant County district attorney's office, at least five cases of improper relationship between an educator and a student have been prosecuted in Tarrant County since the law was enacted in 2003.

I find two aspects of prosecutorial discretion especially notable here:  (1) though it appears no offense facts were really in dispute, prosecutors apparently did not want to pursue any plea deal because they wanted a jury to send a message via sentencing; and (2) the prosecutors asked the jury to send a message through the most severe possible prison term of 20 years imprisonment.

I am generally supportive of decision (1) by the prosecutors here, especially because it seems hard to predict ex ante just what community sentiment might be on whether and how much to punish this teacher for group sex with her (adult) students.  But I am generally critical of decision (2) by the prosecutors here, especially because a 20-year term would likely mean this offender would be in prison for much of the prime of her life (and her kids' entire childhoods) despite posing little or no real risk to the community. 

I suspect prosecutors in this case requested a 20-year term not because they considered such a long term necessary, but rather because they wanted to push the jury to impose some significant prison time.  But I always find very troublesome such an inflationary approach to sentencing advocacy coming from prosecutors, especially in a case like this in which we are dealing with consentual sexual encounters among adults.

Alabama judge gives rapist 624-year sentence, consecutive to prior 100-year term!

It is hard to resist blogging about sentencing rulings that involve prison terms so silly and extreme that they seem to undermine, rather than ensure, respect for the law.  This local story from Alabama, headlined "Dothan man gets 624 years in rape, sodomy case," seems to be an example of such a ruling. Here are the basics:

A Dothan man told the court he believed he didn’t receive a fair trial just before he received a 624-year prison sentence Tuesday for the repeated rape and sodomy of a woman during a kidnapping.

Mark Anthony Beecham, 25, testified on his behalf at his sentencing hearing held before Circuit Court Judge Kevin Moulton. Moments before Moulton announced the sentence, Beecham said he and his attorney, Thomas Smith, were not given enough time, two months, to prepare for trial on his eight felony charges.... “I believe I was denied a fair proceeding,” Beecham said.

Moulton then sentenced Beecham to the prison term. Beecham received a 99-year prison sentence for the following six felony convictions: first-degree kidnapping, two counts of first-degree rape and three counts of first-degree sodomy.  He also received a 20-year sentence for a felony first-degree theft of property offense and a 10-year sentence for felony first-degree bail jumping....

Assistant Houston County District Attorney Banks Smith asked the court for the maximum sentence. “This is one of the rare cases where we get to see the face of evil,” Smith said. “He’s a serial rapist.”

Attorney Thomas Smith asked the court to consider his client’s young age at the time of the offenses -- he was 19 years old -- and how he had no prior felony convictions before the offenses.

James Thornton, an associate pastor at Northview Christian Church, testified on behalf of Beecham. “I consider him to be a believer as most of us are, but we all have flaws,” Thornton said.  “I believe redemption is available to all of us should we choose it.”...

Houston County Circuit Court Judge Jerry White has already sentenced Beecham to a 100-year prison term for the rape and sodomy of another woman during the burglary of her home.  Moulton ordered the 624-year prison term to run consecutive with any other sentence he was already serving for a total of 724 years in prison.

Beecham has also already been convicted of sexual battery and kidnapping in Florida, where he received a 20-year prison sentence.

Divided Fourth Circuit decides sex offender restrictions are not "custody" for habeas purposes

A Fourth Circuit panel has a fascinating set of opinions concerning a fascinting habeas issue in Wilson v. Flaherty, No. 11-6919 (4th Cir. Aug. 15, 2012) (available here).  Here are the players and their roles in this ruling: "Judge Niemeyer wrote the opinion, in which Judge Davis joined. Judge Davis wrote a separate concurring opinion. Judge Wynn wrote a dissenting opinion."  And here is how the majority opinion starts:

Five years after Eric Wilson fully served his sentence for a Virginia state rape conviction, he filed this habeas corpus petition under 28 U.S.C. § 2254, challenging his conviction. To satisfy § 2254’s jurisdictional requirement that he be "in custody" at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.

The district court dismissed Wilson’s petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer "in custody," as required by § 2254(a).

We affirm.  While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence.  We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson’s liberty so as to justify a finding that he is in the custody of state officials.