Monday, December 09, 2013

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 02, 2013

Another preview of Paroline via the New York Times

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

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

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

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

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

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

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

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

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

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

A few prior posts on Paroline:

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

Tuesday, November 26, 2013

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

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

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

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

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

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

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

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

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

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

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

Friday, November 22, 2013

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

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

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

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

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

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.

November 20, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

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 vindictiveness

Last 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.

November 12, 2013 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

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."

The full 40+ page ruling reference here is available at this link, which I found via this helpful page from the helpful folks at the Juvenile Law Center.

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 fee

This 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.

November 7, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (82) | TrackBack

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.”

November 3, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

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.

October 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, October 22, 2013

Lamenting sex offender fear-mongering around Halloween

Writing 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.

October 22, 2013 in Collateral consequences, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Monday, October 21, 2013

Alabama legislators proposing adult day-care "clusters" for sex offenders

As 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.

October 21, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (32) | TrackBack

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.

Download Childs Sentencing Opinion and Order

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?"

October 8, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Monday, October 07, 2013

Fifth Circuit panel declares substantively unreasonable (and plainly erroneous) an above-guideline child porn sentence

I 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.

October 7, 2013 in Booker in district courts, Booker in the Circuits, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Thursday, October 03, 2013

Second Circuit finds substantive due process problems (and others) with penile plethysmography testing for convicted sex offender

Thanks 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.

October 3, 2013 in Collateral consequences, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, September 26, 2013

Second Circuit reverses below-mandatory-minimum sentence for distributing child pornography

The 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. 

September 26, 2013 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

Monday, September 23, 2013

Litigation prompting California city to give up Halloween sex offender posting law

As 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."

September 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack