Wednesday, November 20, 2013
"Sex offender offers to castrate himself for lighter sentence"
The title of this post is the headline of this new Boston Herald article, which gets started this way:
A convicted child-sex offender facing more than 40 life sentences in a rash of alleged rapes and assaults at a Wakefield child-care center is offering to undergo a “physical castration” to reduce his sex drive in return for a “massive” reduction in his sentence, his lawyer said.
John Burbine, 49, a Wakefield resident before he was arrested in September 2012, is asking prosecutors or the judge in his case if they would be willing to cap his sentence at the legal minimum of 15 years in prison if he agrees to voluntarily undergo a castration “preventing production of testosterone,” his lawyer William J. Barabino said. “We would do it only if it results in a massive reduction in sentence,” Barabino told the Herald last night.
He told the judge in a court motion the procedure is effective in producing “a drastic reduction or complete discontinuation in sexual urges and sexual function, due to the inability to produce testosterone,” and is “an accepted method of treating certain types of abnormal sexual behavior, such as pedophilia.”
Barabino will make his pitch this morning in Middlesex Superior Court. He said prosecutors have already indicated informally they are not interested in the deal.
The Wakefield defense lawyer said he expects a formal reply in court and still hopes the judge might consider authorizing the proposal. His actual motion calls for a therapist to ensure Burbine can make an informed decision on the medical procedure.
Tuesday, November 19, 2013
"Sex Trafficking Court Holds Hope for the Oft-Blamed"
The title of this post is the title of this notable short essay by Mary Leary now available via SSRN. Here is the abstract:
This opinion piece which appeared in the National Law Journal explores the State of New York’s Human Trafficking Initiative. This Initiative creates nine Human Trafficking Courts which seek to identify arrestees who may, in fact, be victims of human trafficking and provide them with necessary services. The column discusses the benefits of this approach to sex trafficking and encourages other jurisdictions to pursue similar models. Of particular note is the multi-disciplinary approach to this complex issue as well as the initiative’s recognition that each case must be reviewed on its own merits. The piece concludes with a word of caution regarding the need to work out important details of the scope of the program.
November 19, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack
Tuesday, November 12, 2013
Sixth Circuit upholds dismissal of indictment with new mandatory minimum charge based on on prosecutorial vindictivenessLast week, in a decision I have been meaning to blog about given recent blog debate over federal prosecutorial discretion, the Sixth Circuit upheld a district court's decision to dismiss an indictment in a child pornography downloading case based on prosecutorial vindictiveness. The ruling in US v. LaDeau, No. 12-6611 (6th Cir. Nov. 4, 2013) (available here), highlights my concern about the potential misuse of federal prosecutorial charging discretion, while also revealing that judges are not without some mechanisms to try to check prosecutoral abuses of power. Here is how the unanimous panel ruling in LaDeau starts:
Defendant Daniel Bruce LaDeau was indicted on a single count of possessing child pornog raphy, in violation of 18 U.S.C. § 2252A(a)(5)(A). This charge prescribed a sentencing range of zero to ten years’ imprisonment. Subsequently, LaDeau moved to suppress the evidence that he had any such materials in his possession. After the district court granted LaDeau’s motion to suppress, the government sought and obtained a superseding one-count indictment charging LaDeau with a conspiracy offense based on evidence that had been in the government’s possession since before the initial indictment. But rather than charging LaDeau in the superseding indictment with conspiring to possess child pornography, the government chose to charge him with conspiring to receive child pornography — a charging decision that subjected LaDeau to a five-to-twenty-year prison term instead of the previously applicable statutory range of zero to ten years. Defendant LaDeau then moved to dismiss the superseding indictment. The district court agreed with LaDeau that the government’s decision to change to a receipt theory warranted a presumption of prosecutorial vindictiveness, inasmuch as there was a realistic likelihood that LaDeau was being charged with a more serious offense in retaliation for his successful suppression motion. Concluding that the government had not rebutted the presumption of vindictiveness, the district court dismissed the superseding indictment. The government filed this appeal. Because the district court did not abuse its discretion in dismissing the superseding indictment, we affirm.
Thursday, November 07, 2013
State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional
As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders." Here is more:
Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.
Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.
The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.
Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.
In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."
"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."
County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.
Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."
November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack
New Michigan law adds to number of states requiring registered sex offenders to pay yearly feeThis local article report on yet another notable extra bit of punishment now for sex offenders in Michigan. The piece is headlined "Sex Offenders Will Have To Pay To Live In Michigan Under Bill Signed By Gov. Snyder," and here are the details:
Gov. Rick Snyder has signed legislation requiring registered sex offenders living in Michigan to pay an annual $50 fee. The bill, sponsored by Republican Sen. Rick Jones, replaces the system under which sex offenders paid a one-time $50 fee. Snyder signed the bill into law on Tuesday.
The measure only applies to registered sex offenders who are out of prison. Officials say $20 of each fee would go to local law enforcement and $30 would go to the state. If offenders don’t pay the annual fee, they face misdemeanor charges.
Offenders who can’t afford the fee would have the chance to make their case and receive a 90-day waiver. To do that, offenders would either have to prove in court that they are indigent, are receiving food assistance from the state, or are living under the federal poverty level.
Snyder said the law brings Michigan in line with neighboring states that require sex offenders to pay for the operating cost of sex offender websites. He said Indiana charges $50 per year, while Illinois and Ohio charge offenders $100 per year. The state said the move could bring in about $540,000 more in revenue each year.
But not everybody is on board with the new law. Opponents, which include the American Civil Liberties Union, say it’s merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.
“They have paid their dues … this is a burden that we just keep piling on,” said Shelli Weisberg, legislative liaison for ACLU of Michigan. She argues that the state is not asking offenders to pay for something that benefits them, but something that is intended to protect citizens. Therefore, the state should pay for it.
Sunday, November 03, 2013
Should we worry early parole might cut 750 years off sex offender's prison term?The question in the title of this post is my tongue-in-check response to this local West Virginia sentencing story sent my way by a helpful reader. The piece is headlined "County man sentenced to 250 -- 1,000 years," and here are the details:
A Marion County man was sentenced to 250 -- 1,000 years in prison Friday for 10 counts of sexual abuse and 10 counts of sexual assault, all involving a minor. Matthew Monroe Cottingham, 28, of Fairmont, was sentenced by Marion Circuit Judge David R. Janes.
Cottingham was sentenced to 25 to 100 years for each of 10 counts of sexual assault on a minor and 10 to 25 years for each of 10 counts of sexual assault by a parent, guardian or custodian. He will serve the sentences for sexual assault consecutively and the sentences for sexual abuse concurrently, said Marion County Prosecuting Attorney Patrick Wilson....
“The sentences of 25-100 years are indeterminate,” Wilson said. “He would have to do 25 years on each count before he’d be eligible for parole.”
Cottingham had been first arrested in late July 2012 by Fairmont police. According to criminal complaints, he forcibly had sexual relations with a 13-year-old girl. The girl allegedly told her mother the next day, and statements by the victim and physical evidence observed at Fairmont General Hospital were reportedly consistent with the allegations....
Child Protective Services continued to investigate the incident since the initial arrest. A second child, a 9-year-old girl, alleged that Cottingham had perpetrated “several sexual assaults ... dating back years prior to his arrest to CPS officials.”
Wednesday, October 23, 2013
Should Congress tell all states and localities they many never employ certain ex-offenders in their public schools?The question in the title of this post is prompted by this new AP story headlined "House Votes for School Checks for Sex Offenders." Here are is the backstory:
Public schools would be barred from employing teachers and other workers convicted of sexual offenses against children or other violent crimes under a bill the House approved Tuesday.
The measure would require school systems to check state and federal criminal records for employees with unsupervised access to elementary and secondary school students, and for people seeking those jobs. Workers refusing to submit to the checks would not be allowed to have school positions.
A 2010 report by the Government Accountability Office, the auditing arm of Congress, cited one estimate that there are 620,000 convicted sex offenders in the U.S. It also found that state laws on the employment of sex offenders in schools vary. Some require less stringent background checks than others, and they differ on how people with past convictions are treated, such as whether they are fired or lose their teaching license.
The bill has run into objections from major teachers' unions like the National Education Association and the American Federation of Teachers. In letters to lawmakers, their criticisms included concerns that the measure might jeopardize workers' protections under union contracts. In addition, the NEA wrote that criminal background checks "often have a huge, racially disparate impact" — a reference to critics' complaints that minorities make up a disproportionately high proportion of people convicted of crimes.
Despite those concerns, the House approved the measure by voice vote. "Keeping children safe is not a partisan issue," said the chief sponsor, Rep. George Miller, D-Calif. "It's a moral obligation."
"Every school employee, from the cafeteria workers to the administrators, to janitors to the teachers, principals and librarians, that every one" is subject to background checks including the FBI fingerprint indentification system to the national sex offender registry, said Rep. Todd Rokita, R-Ind.
No one said they opposed the bill. But Rep. Keith Ellison, D-Minn., said that by imposing lifetime bans and ignoring the ability of people to overcome criminal backgrounds, "We do run the risk of doing a good thing, but doing too much of a thing." He said he'd continue seeking changes in the measure as it moves through Congress....
The bill would forbid public schools to employ people convicted of crimes against children including pornography, or of felonies including murder, rape, spousal abuse or kidnapping. It would bar school districts and state education agencies from transferring workers who have engaged in sexual misconduct with minors to another location. The measure would also apply to contractors who work at schools.
Especially as this bill moves to the Senate, I wonder how tea party conservatives like Senators Cruz and Lee and Paul are likely to look at this seemingly significant intrusion by the federal government into state and local education and employment authority. If applied broadly, it sounds as though this bill would preclude someone convicted decades earlier of public indecency or child abuse from serving as a janitor or construction worker in any public school in any state. Whatever one might think about a state adopting such a rule for its own schools, but it seems like quite an intrusion into state authority for the feds to require this rule for all states and localities nationwide.
Tuesday, October 22, 2013
Lamenting sex offender fear-mongering around HalloweenWriting over at Huffington Post, Emily Horowitz has this notable new commentary headlined "Manufacturing Fear: Halloween Laws for Sex Offenders." Here is how the piece starts and ends:
In North Carolina, a sheriff tells parents to check the online sex offender registry before allowing children to trick-or-treat. In Montana, a town offers a "trunk-or-treat" event where kids can get Halloween candy from trunks of cars in a parking lot to avoid potential danger. In New York, "Operation Halloween: Zero Tolerance" prohibits sex offenders from wearing masks or costumes or answering their doors on Halloween, and, as a parole source says, "There is certainly nothing more frightening than the thought of one of these men opening their door to innocent children." In Oklahoma, a city council is considering an ordinance forbidding sex offenders from decorating their homes or passing out candy on Halloween. In Orange, California, sex offenders can't answer their door or have outside lighting on Halloween, but an additional ordinance requiring window signs saying, "No candy or treats at this residence" was recently revoked after attorneys argued it was a form of cruel and unusual punishment.
Why worry about sex offenders on Halloween? Research shows no evidence of increased child sex abuse on Halloween and no evidence that a child was ever a victim of sexual abuse by a stranger while out trick-or-treating. This makes perfect sense, because government data shows the vast majority (about 93%) of sex crimes against children are not committed by strangers but by family members or acquaintances....
The false dichotomy of evil adults and innocent children and families prevents children from meeting their neighbors and becoming part of a community. Sex offenders are subject to more post-punishment restrictions than any other ex-offenders, and have lower recidivism rates. Halloween sex offender laws, and rampant media coverage of the threat of sex offenders on Halloween and throughout the year, is creating a neurotic and fearful generation of kids who grow up thinking they are helpless prey facing threats from real monsters. Children are safest when they know their neighbors, and Halloween is a good opportunity to meet others in the community. There are some actual threats to child safety on Halloween -- like an increase in pedestrian car accidents -- but sex offenders and poisoned candy aren't among them.
Monday, October 21, 2013
Alabama legislators proposing adult day-care "clusters" for sex offendersAs reported in this local article, headlined "Bill Proposes Licensed Residential Sex Offender Clusters," legislators in Alabama are considering a new innovation in the monitoring of sex offenders. Here are the details:
Some Alabama State Representatives are hoping a proposed bill will change the laws surrounding where convicted sexual predators are able to live together. Representatives Kurt Wallace and Paul Beckman are sponsoring the proposal that would make it against the law for sexual predators to live together unless it’s in what they’re calling a licensed, regulated residential sex offender cluster.
The proposed bill is similar to a bill passed into law earlier this year by the Alabama State Legislature. Alabama State Senator Arthur Orr is the sponsor of that bill. It encompasses Morgan County, while the proposed bill will cover the entire state.
In part Senator Orr’s bill made it against the law for convicted sex offenders to live in the same house. ”Studies show that if that is the situation there is much more proclivity for them to sexually offend others in the surrounding area,” Senator Orr says. He says his bill was met with agreement from the Alabama Legislature and Morgan County residents. “Certainly the constituents who had small children who were living near this group sexual offender home, and they certainly wanted something done.”
The proposed bill by Representatives Wallace and Beckman would create what lawmakers call residential sex offenders clusters. The bill spells out what that means. A residential sex offender cluster would be a tract of land where registered sex offenders could live together. An on-site monitor would also be required to live there to supervise the offenders. The clusters would have to be licensed and it would authorize the Department of Mental Health to make rules regulating the clusters.
If passed this proposed bill would require any sex offenders who wanted to live together to live in one of the clusters. It’s proposed if they violated that, it would be punishable by a felony charge. Already Alabama has laws preventing convicted sex offenders from living near a school or their victims. Some officials argue it’s already hard enough for them to find a place to live and this proposed bill would make it even harder....
Lawmakers say the proposed bill would promote public safety, health and confidence. They are expected to take this proposed bill up in the 2014 regular session.
Wednesday, October 09, 2013
District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals
I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)
For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands. The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:
This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines. Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.
There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair. In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice. See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.
Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence. As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable. Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case. The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.
It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.
October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, October 08, 2013
How should the law — federal or state — deal with a 10-year-old serious sex offender?The question in the title of this post is prompted by this new article from the Wall Street Journal about a remarkable federal juvenile prosecution. The article is headlined "Federal Youth Case on Trial: Prosecution of 10-Year-Old on Sex Charges Stokes Debate Over Juvenile Justice." Here is how it starts:
Two years ago federal prosecutors won a delinquency finding against a boy accused of engaging in sex acts when he was 10 years old with other young boys on an Army base in Arizona—one of the youngest defendants ever pursued by the U.S. Justice Department.
The case, now being reviewed by the Ninth Circuit U.S. Court of Appeals, could open a new front in a long-running debate about how to handle juvenile sex offenders, whose cases generally have been tried in state, not federal, courts. The records are sealed because the defendant was tried as a juvenile, but the case came to light in September at an appellate hearing in San Francisco that was open to the public.
The boy's appeal involves a thorny legal question: Should children be prosecuted for sex acts with other children under a federal law that the boy's lawyers say was designed to target adult predators? The fight also highlights a broader debate over tagging juveniles as criminal sex offenders, a label that can land them a spot on registries that track offenders and limit where they can live.
The boy was found delinquent — guilty in juvenile-court parlance — on charges of aggravated sexual abuse against five boys between the ages of 5 and 7, under a statute that makes it illegal to engage in a sexual act with a person younger than 12 regardless of whether physical force is involved. The boy was sentenced to five years' probation, including mandatory psychological treatment, lawyers on the case said. He must also register as a sex offender in certain states, according to his lawyer.
"I think this is really overreaching on the part of the government," Keith Hilzendeger, a federal public defender representing the boy, said in an interview. He added that he had "never heard of a federal case where a person is 10."
Assistant U.S. Attorney Bruce Ferg said outside the courtroom that federal prosecutors took the case because of "the severity of the conduct" and because it took place on Fort Huachuca, the Army base where the boys lived with their families. "My opinion is this is the best thing that could've happened to the kid," said Mr. Ferg, adding that the case included allegations of anal penetration, repetitive behavior and threats. He said that prosecutors considered, "What can we do with this child to make sure this doesn't happen again?"
Monday, October 07, 2013
Fifth Circuit panel declares substantively unreasonable (and plainly erroneous) an above-guideline child porn sentenceI am always pleased to see examples of post-Booker reasonableness review being given some more teeth in the circuits, and a panel ruling released today by the Fifth Circuit in US v. Chandler, No. 12-30410 (5th Cir. Oct. 4, 2013) (available here), shows that even defendants convicted of child porn offenses can sometimes benefit from appellate judges taking reasonableness review seriously. Here are excerpts from the start and heart of the of the panel opinion in Chandler:
Richard Chandler pleaded guilty to engaging in a child exploitation enterprise. At sentencing, the district court varied upward by 127 months over the recommended Guidelines range to impose 420 months of imprisonment. We find that the district court erred by increasing Chandler’s sentence based on the fact that he was a police officer. We remand for re-sentencing....
The parties agree that the district court correctly calculated Chandler’s Guidelines range as 240-293 months. In the PSR, the probation officer stated that he had not identified any factors warranting a departure or variance from the Guidelines range. Chandler did not file objections to the PSR, but he filed a Motion for Deviation from Sentencing Guidelines, arguing that a significant downward departure from the Guidelines was justified in his case because the sentencing scheme for possession of child pornography is unfair and the circumstances of his offense warranted leniency. The district court rejected Chandler’s motion, noting that Chandler was not a “mere possessor” because he had repeatedly posted child pornography. The district court ultimately imposed a sentence of 420 months of imprisonment, an upward variance of 127 months from the top of the Guidelines range. The district court found that the non-Guidelines sentence was justified by the nature and circumstances of the offense, particularly Chandler’s abuse of his public office as a law enforcement officer, his use of other people’s internet connections to attempt to hide his participation in the scheme, and the fact that he posted child pornography 117 times, mostly with children 8 to 14 years of age. Chandler did not object to the sentence. Chandler filed a timely notice of appeal....
Some of the comments made by the district court here, such as those stating that by being a police officer Chandler has placed himself in a different category and should be held to a higher standard, are similar to those in Stout and could be interpreted to cross the line into impermissible reliance on Chandler’s socioeconomic status as a police officer.
To the extent that the district court’s comments regarding Chandler’s position are findings that Chandler abused his position of trust or that the offense was more serious because of Chandler’s position, the district court likewise erred. Though we are mindful that our review in this case is only for plain error, our circuit precedent is clear that a defendant’s status as a police officer, standing alone, is not a justifiable reason to increase a sentence....
[T]hough the district court stated multiple times that it was varying upwards because Chandler abused his position, the district court did not rely on any facts showing that Chandler acted in his capacity as a police officer in posting child pornography on the internet. There is no evidence in the record that he used or exploited his position as a police officer, or used any knowledge or skills he gained from that position, to commit the offense or attempt to hide it.
The district court’s error was compounded by its mischaracterization of the conduct involved in Chandler “stealing” other people’s “identities” or “internet addresses.” The only description of this conduct in the record is in a sentencing memorandum filed by the government, which states that Chandler used other people’s unsecured wireless connections. Though the government refers to this as “stealing,” it essentially amounts to logging onto an open wireless network. While we agree with the government that such activity could have caused innocent people to be subject to investigation, it clearly is not equivalent to identity theft or any sort of skilled hacking activity, though the district court discussed it as if it required highly technical knowledge that Chandler acquired as a police officer.
Thursday, October 03, 2013
Second Circuit finds substantive due process problems (and others) with penile plethysmography testing for convicted sex offenderThanks to a number of helpful readers, I have not missed the news of a notable sentencing ruling by a Second Circuit paenl today in US v. McLaurin, No. 12-3514 (2d Cir. Oct. 3, 2013) (available here). Here is how the opinion starts:
David McLaurin, a convicted sex offender, was required by federal law to register any change in his address. He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months’ imprisonment and five years of supervised release. As a condition of his release, McLaurin was required to “participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.
This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.
McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release. See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin. McLaurin now appeals.
We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin’s right to substantive due process. We therefore vacate the condition.
October 3, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack
Should downloading a few pics of child porn result in attorney's disbarment?The question in the title of this post concerning a notable collateral consequence of some convictions is prompted by this fascinating cover story from the October 2013 issue of the California Lawyer magazine. (Hat tip: How Appealing.) The story is headlined "Unfit to Practice? The state Supreme Court must decide whether a lawyer's possession of child pornography requires summary disbarment," and here is how the piece begins:
Gary Douglass Grant is a lawyer with a big problem. In 2007 the civil litigator and former captain in the Army Reserves, now 56, was a JAG lawyer assigned to Los Alamitos Army Airfield when an Immigration and Customs Enforcement (ICE) operation in Virginia tracked hits on approximately 18 commercial child pornography websites. ICE agents in Project Flicker, as it was known, located a number of active and retired military members, civilians, and contractor employees - several of whom had Top Secret or higher clearances - who allegedly used their military email addresses to register for PayPal accounts to access the images.
One of the 16 individuals identified that summer was Gary Grant. A search of computers at his Aliso Viejo home revealed that he had sent over the Internet an image depicting minors engaged in sexually explicit conduct; Orange County sheriff's deputies arrested him a year later. Investigators had found that between 2001 and 2007 Grant accumulated more than 100,000 digital pornographic images, much of it legal adult material. But mingled among those images were pornographic pictures of children. An analyst who examined the seized files found 19 photos and a videotape of youths who appeared to be between 14 and 16 years old - "possibly minors."
The Orange County District Attorney charged Grant with three counts of California Penal Code section 311.11(a), possession of obscene matter of a minor in a sexual act. Prosecutors gave Grant and his lawyer a CD with at least 100 sexual images of children retrieved from Grant's computers.
From the outset, Grant gave specific orders to his criminal defense attorney: "Defend this to the nth degree, because no way, no how, did I knowingly possess child pornography."
Ultimately, though, Grant conceded there were sexual images of underage girls on his computer. He said he had found the photos repugnant and deleted them. But even deleted images may remain on a hard drive, and that's where forensic computer analysts in this case located them. In April 2009 Grant admitted he had temporarily possessed two "unsolicited electronic images" of children, received by email while he was downloading other pornography. He pleaded guilty to one count of felony possession; prosecutors agreed to drop the other two charges. The judge sentenced Grant to 90 days in jail and three years of probation, and ordered him to register as a sex offender for the rest of his life. He did not appeal his conviction or sentence.
Grant joined a twelve-step fellowship known as Sex and Love Addicts Anonymous. But by autumn he had violated the terms of his probation by downloading adult pornography to his computer and by "sex-texting" two former girlfriends. The violations brought Grant an additional 183 days of jail time - more than twice his original sentence.
Based on the felony conviction, the State Bar of California automatically placed Grant on interim suspension pending further disciplinary proceedings. A State Bar Court trial judge later recommended that Grant be disbarred because his felony involved moral turpitude. His lawyer challenged that characterization, and the severity of the discipline. When the Review Department recommended only a suspension, the prosecutors appealed. Now Grant's case is pending before the state Supreme Court, where it has been fully briefed and awaits oral argument. (In re Grant, No. S197503 (Cal. Sup. Ct).)
At issue is the State Bar's ability to exact the ultimate sanction - disbarment - pursuant to a summary procedure that permits neither consideration of mitigating factors nor whether that sanction is appropriate. What began as one man's compulsion to accumulate pornography has become a challenge to the moral-turpitude-per-se standard, and the State Bar's procedures associated with it. Ultimately the Grant case could result in changes to disciplinary proceedings that affect hundreds of matters.
Thursday, September 26, 2013
Second Circuit reverses below-mandatory-minimum sentence for distributing child pornographyThe Second Circuit via a lengthy panel decision today in US v. Reingold, No. 11-2826 (2d Cir. Sept. 26, 2013) (available here), reverses a decision by Judge Jack Weinstein to sentence a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Here is how the majority opinion gets started:
Corey Reingold pleaded guilty in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) to one count of distributing child pornography. See 18 U.S.C. § 2252(a)(2). The United States now appeals from that part of the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months’ incarceration. The government contends that the district court erred in refusing to impose the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual Punishment Clause. See U.S. Const. amend. VIII. The government further disputes the district court’s Sentencing Guidelines calculations. The district court explained its sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages of appendices. See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011). Having carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude that the district court erred in both respects identified by the government. We therefore remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion.
I will not have a chance to review closely the 56 pages of Reingold until late tonight, though a quick skim suggests this ruling is a must-read for any and everyone working on sentencing issues in child pornography cases in the federal courts.
Monday, September 23, 2013
Litigation prompting California city to give up Halloween sex offender posting lawAs reported in this Los Angeles Times piece, headlined "O.C. city likely to drop Halloween law aimed at sex offenders: A lawsuit challenges a city of Orange law requiring sex offenders to post signs to discourage trick-or-treaters," it appears that just the filing of a constitutional lawsuit is prompting reform of a local ordinance. Here are the basics:
An Orange County city will probably toss out a law requiring registered sex offenders to post a sign in front of their homes on Halloween to discourage trick-or-treaters after it was hit with a federal lawsuit alleging the practice is unconstitutional.
Registered sex offenders in the city of Orange are legally required to post a sign on Halloween, no smaller than 12 by 24 inches, that reads, "No candy or treats at this residence." Violators face a $1,000 fine or up to a year in jail. The lawsuit, filed Wednesday on behalf of an individual identified only as "John Doe," alleges the law violates the 1st Amendment rights of registered sex offenders and puts them, and anyone living with them, at risk of physical and emotional harm.
"If you think about it, a lot of older kids go out to trick rather than treat," said Janice Bellucci, an attorney and president of the California Reform Sex Offender Laws group. "All you have to do is look for the house with the sign."...
Bellucci filed a similar lawsuit last year to strike down a Simi Valley ordinance that also required people convicted of sex crimes to post a sign. That law also banned them from putting up Halloween displays and outside lighting on Oct. 31. But the day before the Simi Valley law went into effect, federal court Judge Perry Anderson issued a temporary restraining order barring the city from enforcing the sign provision.
The judge let stand provisions of the ordinance that keep sex offenders from turning on outside lights, decorating their homes and answering their doors to trick-or-treaters....
In Orange, no registered sex offenders have been cited since the ordinance was adopted, said City Atty. Wayne Winthers. When the city passed the law in February 2010 officials counted 81 registered sex offenders, with 81% of them having convictions involving minors, according to city records.
There was no need for the group to file the lawsuit, he said, since the city had been in contact with Bellucci and the City Council was expected to discuss the issue next week in closed session. "I read the district court's [Simi Valley] ruling and I don't see any reason why the court would look at ours any differently," said Winthers, who said he intended to ask the council to remove the sign requirement from the Halloween ordinance. "Our intent wasn't to bring any unnecessary harm or scrutiny to any particular individual," Winthers said. "We just wanted to protect children."
Saturday, September 07, 2013
Legal twists and turns continue in controversial rape sentencing case from MontanaAs reported in this local article, there were a number of notable court developments on Friday in the Montana child rape sentencing case that has garnered national attention. Here are the basics:
Recent related posts:
The Billings judge who drew local and national condemnation for sentencing a former Senior High teacher to 30 days in prison for raping a 14-year-old student canceled a second sentencing hearing on Friday after the Montana Supreme Court intervened in the case.
But District Judge G. Todd Baugh did address an audience of mostly media representatives for about 10 minutes, explaining the legal and procedural history of the Stacey Rambold rape case that has grabbed headlines across the country for the past two weeks.
Less than an hour before Baugh stepped into the courtroom, the Montana Supreme Court issued an order canceling the hearing, telling Baugh that he could not legally change Rambold's sentence as he intended. "We conclude that the stated intent of the District Court to alter the initially imposed oral sentence in today's scheduled hearing is unlawful and that proceeding should be arrested," the order stated.....
The hearing Baugh wanted to hold in order to change Rambold's sentence was opposed by both the Yellowstone County Attorney's Office and Rambold's defense attorney, who argued that Baugh did not have the authority to change the sentence after announcing it in court last week. In its order, the Supreme Court also said it "takes no position on the legality of the imposed sentence, and will address the parties' arguments in that regard on appeal."
Attorney General Tim Fox released a statement later Friday that his office would proceed with the appeal, which was filed on Tuesday. "While it's good that Judge Baugh recognizes that his August 26 sentence of Stacey Rambold is contrary to the law, today the state Supreme Court affirmed that Judge Baugh has no authority to amend the sentence unless ordered to do so by the Supreme Court," Fox said.
Though he did not impose a new sentence, Baugh went ahead with the unusual hearing. The hearing began 1:40 p.m., and Baugh announced that he had decided on Thursday, before the Supreme Court intervened, to cancel the hearing he intended to hold aimed at re-sentencing Rambold....
A reporter from the New York Times and a crew from CNN were among the media representatives at the hearing, which was held on the record with a court reporter and court clerk present. Baugh told the gathering that he had also on Thursday signed a written judgment altering the sentence he imposed orally against Rambold on Aug. 26. The judge said the new sentence was 15 years in prison, with all but two years suspended, which he said is the minimum legal sentence in the case.
Less than two weeks ago, Baugh sentenced the 54-year-old Rambold to 15 years in prison, with all but 31 days suspended and credit for one day served. After reviewing the Supreme Court order, Baugh said, he put a note in the file withdrawing that written judgment and signed a new judgment reflecting his original sentence.
Baugh said the confusion over the mandatory minimum sentence in the case "shouldn't have had to be addressed at all." The confusion could have been avoided if "I had been more alert" or if prosecutors had addressed the issue at Rambold's Aug. 26 sentencing hearing. At that hearing, the prosecution argued that Rambold should receive a sentence of 20 years in prison, with 10 years suspended.
Baugh instead imposed the sentence requested by Rambold's defense attorney, Jay Lansing. The sentence caused a national outrage, not only for the prison term imposed on the former teacher, but for the words the judge used to explain the sentence. Baugh said the victim, Cherice Moralez, who committed suicide in 2010, was "older than her chronological age" and was in some control of the relationship with Rambold.
The judge apologized for the statements two days later, but critics have continued to call for his resignation. Baugh explained on Friday that the case began with the charges filed in 2008, but resulted in an unusual deferred prosecution agreement in July 2010 after Moralez's death.... Baugh said the sentencing hearing on Aug. 26 happened almost six years after the crimes. Rambold was found to be treatable in the community, and had committed no new crimes, he said.
"It seemed to me a suspended sentence was the most appropriate," Baugh said. The case will now proceed to the appeal process, the judge said.
- "Protesters Demand Montana Judge Resign Over Rape Sentencing"
- New hearing ordered by Montana judge in case involving controversial 30-day child rape sentence
Tuesday, September 03, 2013
New hearing ordered by Montana judge in case involving controversial 30-day child rape sentenceAs reported in this local article, headlined "Judge orders new hearing on controversial rape sentencing," a high-profile state sentencing case from Montana took another notable twist this afternoon. Here are the details:
Saying the sentence he imposed on a former Billings teacher for the rape of a student may be illegal, Yellowstone County District Court Judge G. Todd Baugh has ordered a new hearing.
In an order filed Tuesday, Baugh set a hearing for Friday at 1:30 p.m. to determine whether the sentence he imposed last week on Stacey Dean Rambold should be revised. Baugh said in the order that the mandatory minimum sentence Rambold should have received appears to be two years, not the 30-day sentence that Baugh ordered on Aug. 26.
Yellowstone County Attorney Scott Twito called Baugh’s order an "unusual occurrence." Twito has been consulting with the Montana Attorney General’s Office to determine whether to appeal the case to the state Supreme Court. "The state will review the issue and we will be prepared to be in court on Friday," Twito said in response to the judge’s new order.
Rambold, a former Senior High teacher who admitted to raping a 14-year-old female student who later committed suicide, received a sentence of 15 years in prison, with all but 31 days suspended. He was given credit for one day previously served.
The sentence, and statements made by Baugh at the hearing last week, drew international attention and calls for Baugh’s resignation.
Recent related post:
Utah (re)considering its approaches to sex offender sentencingThe Salt Lake Tribune has this notable new article about its prison population and sex offender sentencnig under the headline "Utah sex offender policy in spotlight as numbers soar: More prisoners, longer sentences but funding for treatment stays flat, triggering concerns." Here are excerpts:
A dramatic increase in the number of sex offenders incarcerated in Utah over nearly two decades is raising questions about how the state deals with such crimes and concerns about whether all inmates are able to get needed treatment before they return to their communities.
The number of sex offenders in state custody has more than doubled — to 2,194 or 31 percent of the prison population — since 1996, the last year Utah lawmakers approved an increase in treatment funding. Although Utah’s incarceration rate is significantly lower than that of other Western states and the U.S., it leads surrounding states when it comes to the percentage of prison inmates who are sex offenders.
One reason for that: Lawmakers have taken a tough stance on sex offenses, setting stiff penalties, such as a law passed in 2008 that set a 25-years-to-life penalty for child rape. “Our culture has a very strict credo, a moral sense, of what is appropriate sexually and what is not appropriate sexually,” said Rep. Eric Hutchings, R-Kearns and a member of the Criminal Justice Appropriations subcommittee. “That may be why we incarcerate a little bit more.”
The state’s approach also has historically been shaded by the view that “once a predator, always a predator” — a misconception that may finally be poised to shift with the accumulation of evidence that shows treatment works, Hutchings said. “The discussion is not over, but it’s happening in earnest,” Hutchings said. “The mind-set for a long time has been what are we going to get by putting this money into treatment. Why not focus instead on mandatory minimum sentences and keeping these people locked away.”...
The numbers reflect that philosophy of warehousing inmates. Today, more sex offenders in Utah are sent to prison rather than placed on probation, and they serve longer sentences. In 2012, for example, 92 percent of first-degree felony sex offenders went to prison, up from 72 percent in 1988. During that period, the length of time served has doubled....
Still, “The reality is we are talking about a very large group of people at the prison who are some day going to get released,” said Jonathan Ririe, a Utah psychologist who works with sex offenders in the community. And that makes investing in treatment, as well as supervision outside of prison, critical, he added....
Utah inmates convicted of first-degree felony sex offenses who were released from prison during the past five years had, on average, served 7½ years. But some serve far longer....
One Utah analysis of inmates who completed treatment showed about 20 percent returned to prison within a year, compared with 42 percent of those who did not complete treatment. In both groups, most offenders returned because of parole violations rather than because they committed new crimes.
A 2003 Bureau of Justice Statistics report found that sex offenders were less likely than non-sex offenders to be rearrested for any crime. That report also found that 5.3 percent of all sex offenders were rearrested for a sex crime within three years of being released. The percentage was even lower — 3.3 percent — for child molesters.
Ririe said it is “frustrating” that Utah’s approach has been to continually adopt more stringent sentencing guidelines that lump sex offenders together rather than adopting a system that appropriately categorizes offenders by risk factors and allows judges and the parole board a greater role in assessing them individually.
Second Circuit panel hints that SORNA might be subject to some Commerce Clause challengesA helpful reader alerted me to a notable Second Circuit panel opinion today in US v. Robbins, No. 12-3148 (2d Cir. Sept. 3, 2013) (available here), in which the court hints that federal sex offender registration laws might at some point be subject to new Commerce Clause challenges in the wake of the Supreme Court's work in the "Obamacare" cases. Here is how the opinion in Robbins gets started:
In August 2011, after traveling from New York to Nevada, defendant-appellant Nathan Robbins knowingly failed to update his registration as a sex offender, as he was required to do under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16913. He subsequently pled guilty to violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required to register under SORNA to travel in interstate commerce and knowingly fail to update his registration. Despite his plea, Robbins retained the right to challenge the constitutionality of the statutes he admitted violating, and he brings just such a challenge here.
This Court has previously held that Congress acted within its powers under the Constitution’s Commerce Clause when it enacted SORNA. See United States v. Guzman, 591 F.3d 83 (2d Cir. 2010). Since then, however, the Supreme Court has revisited and further clarified — if that is the appropriate word — the reach of Congress’s power “[t]o regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8, cl. 3; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”). Robbins invites us to revisit our holding in Guzman in light of the Supreme Court’s decision in NFIB.
We decline Robbins’ invitation not because his arguments all lack force, nor because the constitutionality of SORNA — particularly when applied within the states — is beyond question, see United States v. Kebodeaux, 570 U.S. ___, No. 12-418, slip op. at 5 (U.S. June 24, 2013) (Roberts, C.J., concurring in the judgment) (“The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.”), but because the constitutionality of SORNA as applied to Robbins remains unaffected by any limitations on Congress’s Commerce Clause power that may be found in NFIB. Still bound by the precedent set in Guzman, we therefore AFFIRM Robbins’ conviction.