Tuesday, October 23, 2012

Ninth Circuit finds "fundamental right of to familial association" made special sex offender SR conditions "substantively unreasonable"

A lengthy opinion from the Ninth Circuit today in US V. Wolf Child, No. 11-30241 (9th Cir. Oct. 23, 2012) (available here), should be of interest to anyone who has ever been concerning about the application of broad supervised release conditions. Here is how the panel opinion gets started:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer.  The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée.  It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.  We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.”  The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary.  Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals.  Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer.  On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child’s contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.

October 23, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Thursday, October 18, 2012

Federal judge finds unconstitutional Nebraska's statute criminalizing all sex offender use of social networking sites

As reported via this post by David Post at The Volokh Conspiracy, yesterday US District Judge Richard Kopf declared unconstitutional a portion of Nebraska's sex offender registry law making it a crime for registered sex offenders to make any use of any social networking web site.  The full, lengthy opinion is available at this link, and here is how it begins:

Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there. By that, I meant that it is not my prerogative to second-guess Nebraska’s policy judgments so long as those judgments are within constitutional parameters.  Accordingly, I upheld many portions of Nebraska’s new sex offender registration laws even though it was my firm personal view that those laws were both wrong-headed and counterproductive. 

However, I had serious constitutional concerns about three sections of Nebraska’s new law.  After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns.  The trial has now been concluded, and I have decided that the remaining portions of Nebraska’s sex offender registry laws are unconstitutional.

In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path.  For three sections of Nebraska’s new sex offender registry law, Nebraska has violently swerved from that path.  I next explain why that is so.

UPDATE: This new local article about this ruling provides some more information concerning the rulign and some reactions.  Here are excerpts:

On Thursday, Omaha attorney Stu Dornan, whose firm represented the men and women challenging the laws as John and Jane Doe, hailed this week's ruling, saying the laws had left people on the Nebraska Sex Offender Registry unsure whether they could text or email family members or even turn on a computer.

He said Kopf's ruling upheld the Constitution as a document that protects even sex offenders, who are viewed by many Nebraskans, as Kopf said in his order, as the lepers of the 21st century. "The Constitution, if it does not protect this group of people, it does not protect any of us," Dornan said....

As scathing as Kopf's 73-page order was at times, the judge did also set out a pathway for Nebraska lawmakers to cure it. "Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary -- use a scalpel rather than a blunderbuss," the judge said. As it was, Kopf said Nebraska lawmakers had gone too far, putting a stake through the heart of the First Amendment and gutting protections against suspicion-less searches....

At trial, the attorney general's office argued that the laws did not keep offenders from using the Internet entirely. But Kopf said the Nebraska Legislature went far beyond its purported purpose when it criminalized the provisions. "These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens," he said. "They are silenced. They are rendered insecure in their homes."

He said lawmakers could draft a statute that required convicted sex offenders to provide Internet addresses that the state could track, rather than requiring sex offenders to constantly update the state about when and where they post, for instance. The state also could narrow social networking and chatroom restrictions to offenders who committed their crimes using the Internet, he said....

Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said his office respectfully disagreed with the court's decision. "We are reviewing the ruling and assessing our options," she said.

October 18, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Thursday, October 11, 2012

Split Sixth Circuit opinion addresses range of child sex offense sentencing issues

The Sixth Circuit has a lengthy split opinion today in US v. Zobel, No. 11-3341 (6th Cir. Oct. 11, 2012) (available here), which covers a lot of sentencing issues that seems to arise a lot in the all-too-common setting of adult men luring girls to engage in illegal sexual activity.  Here is how the majority opinion gets started:

Defendant–appellant David Zobel appeals his sentence for knowingly coercing and enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).  After Zobel pled guilty, the district court imposed a sentence of 150 months of imprisonment, which represented a 15 month upward variance from the upper-end of the Guidelines range. The district court also imposed several special conditions of supervised release for life, which prohibit Zobel, inter alia, from having contact with minors absent prior judicial approval, loitering in areas where children tend to congregate, and possessing or viewing pornography or materials that are “sexually explicit or suggestive.”  Zobel argues that his sentence — both the term of incarceration and several special conditions — was both procedurally and substantively unreasonable.

For the reasons that follow, we vacate the part of the special condition that bans possessing or accessing “sexually suggestive” materials, affirm the remainder of the sentence, and remand for resentencing proceedings consistent with this opinion.

A brief dissent by Judge Moore follows the lengthy majority opinion, and it gets started this way:

A district court must state in open court and in a written statement of reasons the specific reason it is imposing an outside-guidelines sentence on a defendant. 18 U.S.C. § 3553(c)(2).  Because the district court failed to state a specific reason for its fifteen-month upward variance both in open court and in its written statement of reasons, the district court committed plain error.  The majority, however, nonetheless affirms. I respectfully dissent.

October 11, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Tuesday, October 09, 2012

Interesting Third Circuit ruling addresses state-federal and federal-federal sex offense disparity claim

The Third Circuit has an intriguing little federal sentencing decision today in US v. Begin, No. 11-3896 (3d Cir. Oct. 9, 2012) (available here).  Here his how the majority opinion starts:

Michael Eugene Begin appeals from a final judgment of conviction and sentence on charges related to his use of the internet and a cellular phone to send sexual messages and photographs to a minor in order to persuade her to have sex with him.  Begin pled guilty and was sentenced to 240 months' imprisonment, representing a 30-month upward departure from the top of his advisory Sentencing Guidelines range.  On appeal, Begin argues that his sentence is unreasonable because the District Court failed to consider his request for a downward variance based on the asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.  We will vacate Begin‟s sentence and remand for the District Court to consider his request.

And here is how the partial dissent by Judge Roth gets started:

I concur with the majority’s conclusion regarding the issue of federal/state sentencing disparities. I disagree, however, with the majority’s decision to vacate the sentence and remand to the District Court for consideration of the alleged federal/federal sentencing disparity. I would hold, as a matter of law, that the disparity between the two federal statutes raised here is irrelevant to the consideration of sentence disparities under 18 U.S.C. § 3553(a)(6). I would, therefore, affirm the sentence imposed.

October 9, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

"Sandusky sentenced to 30 to 60 years"

The title of this post is the headline from this AP report of today's high-profile child sex abuse state sentencing in Pennsylvania.  Here is how it begins:

Former Pennsylvania State University football coach Jerry Sandusky was sentenced to 30 years to 60 years in prison for charges of child sex abuse that involved 10 boys and spanned a decade and a half.

Legal observers said the sentence ensures that Mr. Sandusky, 68 years old, will almost certainly spend the rest of his life in a state prison. He had faced a minimum of 10 years and a maximum of more than 200 years. Experts said the chances of Mr. Sandusky successfully appealing his conviction is remote.

Mr. Sandusky, wearing a red prison jumpsuit with "Centre County" printed on the back, stood motionless in a crowded but hushed courtroom as Judge John Cleland read a list of individual sentences for 45 counts related to child sex abuse that Mr. Sandusky had been convicted of in June.

"The tragedy of this crime is that it's a story of betrayal," Judge Cleland said before handing down the sentence. "Those who have never encountered a pedophile can hardly begin to understand the anguish of those who have been so expertly deceived….The crime is not only what you did to their bodies but what you did to their psyches and souls."

Judge Cleland said to Mr. Sandusky, "When I say to you that you're sentenced to spend not less than 30 years to 60 years in prison, that has the unmistakable impact of saying clearly 'for the rest of your life.' "

Judge Cleland also addressed Mr. Sandusky's victims, several of whom were in the courtroom and had read statements about being sexually abused. "The fact that you were assaulted is no cause for embarrassment or shame," Judge Cleland said. "It is for your courage and not for your assault that you will be remembered. And it is that on which you must focus if you are going to become whole and healed."

Mr. Sandusky, who chose not to testify during his trial, read a lengthy statement in the courtroom. A weary-looking Mr. Sandusky maintained that he is innocent. "Others can take my life. They can make me out as a monster," Mr. Sandusky said. "They can't take away my heart, and in my heart I know that I didn't commit these alleged disgusting acts."

Mr. Sandusky spoke about the victims who he said had wrongfully accused him, as well as about football, prison life, his dog and missing his family. His wife Dottie looked on, holding the side of her face with one hand. At the end, his voice cracked with emotion as he spoke of being separated from his family.

Three young men read statements in court and said they were still suffering from the abuse they suffered at Mr. Sandusky's hands. "I will never erase the filthy images of his naked body against mine, but he must pay for his crimes which he has now been convicted of," said a young man identified as Victim 5, who testified that he was molested in a Penn State shower by Mr. Sandusky. "He took away my childhood the day he assaulted me. He should be sentenced accordingly."

October 9, 2012 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Guest Post on Jerry Sandusky's expected exercise of his allocution right

Mark Allenbaugh sent me comments about Jerry Sandusky's upcoming sentencing, and I urged him to turn his thoughts into a guest post.  Here it is:

Today, Jerry Sandusky most likely will be sentenced to a term that will guarantee he serves the rest of his life in prison.  Given a life expectancy of around 10 to 15 years, it inevitably will be significantly shortened by years of solitary confinement.  The real question is not what he’ll get, but what, if anything, he says.

Reports indicate he will use his right of allocution to claim his innocence.  In fact, late last night he released an audio file to the press wherein he claimed that “In my heart, I know I did not do these alleged disgusting acts. My wife has been my only sex partner.  That was after marriage.”

Unlike cases built primarily or exclusively on forensic evidence where botched investigations all too often lead to erroneous convictions, Sandusky’s claim of innocence will serve no purpose other than to largely defeat any mitigating evidence that may be introduced, and his statement released yesterday will only serve as impeachment evidence.  Why, for example, did he state that “Maybe (the case) will help others; some vulnerable children who could be abused, might not be because of all the publicity”? Sacrificial lamb or a back-handed admission of guilt?  Neither is helpful to him and persisting in his innocence will likely raise the ire of the Court.

Which raises the point as to when should an offender exercise his right of allocution. Judges have indicated, especially in sex offense cases, that they desire to hear offenders not just admit guilt and take “full responsibility,” but show remorse.  But where, as here, victims also are expected to testify, a client’s moment of catharsis can result in additional years of confinement.  And Sandusky’s sentencing effectively is his court of last resort inasmuch as any appeal, even if successful, may not come earlier enough to win him his freedom.

So, why then did Sandusky essentially allocute in public when his every word in court will be duly recorded?  Perhaps he is thinking over the wisdom of claiming innocence in open court in front of his victims and the judge, or he’s testing the waters of public reaction. More likely this could be the result of years of rationalization that has formed a permanent cognitive dissonance.  It is not uncommon, after all, for sex offenders to suffer from sometimes profound mental illness, which often can speak to mitigation or alternatives to exclusive incarceration.

But whatever the reason why, as the old saying goes, if you want to get out of a hole, stop digging.  Sandusky would be wise let his audio tape continue to do his talking, and waive his right of allocution.

Some prior posts on Sandusky case:

October 9, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Monday, October 08, 2012

Would any prosecutors throw challenge flag for plea deal cut for sexual misconduct with student?

Though the MLB playoff have me in more of a baseball mood this week, I cannot avoid this football-related AP story about a notable plea deal struck by a former NFL cheerleader.  The story is headlined "Ex-Cincinnati Bengals cheerleader pleads guilty to having sex with former high school student," and here are excerpts:

A former Cincinnati Bengals cheerleader pleaded guilty Monday to having sex with her 17-year-old former student while she was a teacher at a northern Kentucky high school, a move that will allow her to avoid jail time.

In a tearful admission in Kenton County Circuit Court in Covington, Ky., 27-year-old Sarah Jones pleaded guilty to sexual misconduct and custodial interference in place of more serious charges as part of a plea agreement with prosecutors. “I began a romantic relationship while he was a student and I was in a position of authority,” Jones said, her voice cracking as her family members wiped their own tears.

Jones said the relationship began in February 2011 when the boy was 17, saying that the two had sex, that she sent him sexually explicit text messages and lied about the relationship to police.  The teen had been in Jones’ freshman English class in 2008, and she was his peer tutor in 2010 and 2011 before he graduated at the age of 17 this year, according to Monday’s plea agreement, signed by Jones.

In accepting the plea agreement, Judge Patricia Summe granted prosecutors’ recommendation to sentence Jones to five years of diversion but no jail time, and she won’t have to register as a sex offender.  The diversion requires Jones to report to a probation officer and undergo drug tests.

Prosecutors said they were willing to make the deal because the teen, now 18, and his family were uncooperative with them and on Jones’ side.  “We feel that it is a just and it is a fair result,” prosecutor Sara Farmer said.  “It’s certainly difficult when a victim and his family don’t cooperate by not providing information, but it makes our case a lot harder when they’re actually proactive for a defendant, and in this case, the family was more than supportive of the Jones (family).  They were proactive for them.”...

Part of the reason defense attorney Eric Deters said Jones was willing to plead guilty was because Summe had denied his request to keep the text messages that she sent to the teen out of the trial. “They’re embarrassing,” Deters told reporters after the hearing. “They were steamy.”

He also said that now that the teen is 18 years old, he and Jones “are free to be together” and pointed out that they left the courtroom together.  Deters declined to discuss details of their current relationship, saying that the pair would discuss it on the “Today” show and “Dateline” on Friday.

He said that Jones will not try out to be a Bengals cheerleader in the future, and that for now, she’s working as a legal assistant in his office.  Jones has expressed interest in becoming a lawyer and is studying to take the Law School Admission Test, he said....

Jones’ mother, former school principal Cheryl Armstrong Jones, also pleaded guilty Monday, to a misdemeanor charge of attempted tampering with evidence.  She admitted to the judge that she sent the teen a text message telling him to get rid of his phone and also avoided jail time.

As the question in the title of this post suggests, I am curious to know if any prosecutors (or others) are troubled by this plea deal.  Because this story gives me little reason to suspect that the defendant here poses any serious threat to the public, I am not especially troubled she was able to cut a sweet plea deal and has appearances now slated for the "Today" show and "Dateline."  But perhaps others have a different take on this matter.

October 8, 2012 in Celebrity sentencings, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Sunday, October 07, 2012

Upcoming Sandusky sentencing generates little suspense, but lots of stories

Jerry Sandusky is scheduled to face sentencing this Tuesday.  At this stage, the case holds has seemingly limited suspense; I cannot imagine this serial child molester now could or would get anything less than a functional (if not an actual) life sentence. Still, the high-profile nature of the defendant and his crimes ensures that there will be plenty of press stories about the sentencing.  For example, here are some stories from the AP and UPI appearing in many papers today:

I doubt I will be eager to blog much about this high-profile state sentencing, in part because we can count on the mainstream press to give it plenty (too much?) attention. But perhaps readers can convince me via comments that there is something especially worthy of special blog attention as the Sandusky sentencing day approaches.

October 7, 2012 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Saturday, October 06, 2012

New California sex offender lawsuit challenges local restrictions on access to public parks and beaches

As reported in this new Los Angeles Times article, it is not just local Halloween ordinances being subject to constitutional attack by sex offenders in California (details on the Halloween suit are here and here). This article, headlined "Four Orange County cities sued over sex offender laws," reports on a new and different federal lawsuit going after another popular restriction on sex offender activities.  Here are the details of this distinct lawsuit:

A registered sex offender has filed suit against four Orange County cities, challenging the constitutionality of a law that bans sex offenders from using public parks, beaches and even some roadways. The suit is aimed at Costa Mesa, Huntington Beach, Seal Beach and Lake Forest, which have all modeled local ordinances on the county's sex offender law, which bans offenders from entering county parks and other public facilities. It is considered one of the most aggressive sex offender laws in California.

The lawsuit, filed in U.S. District Court, claims the local laws that ban the plaintiff, a registered sex offender, from entering city parks or visiting beaches violate the Constitution and his protected rights under the law. The San Francisco law firm representing the man, identified only as "John Doe" in the lawsuit, said the ban violates his 1st, 5th and 14th Amendment rights.

The lawsuit alleges that the plaintiff, by being banned from entering public property, is unable to peaceably assemble, speak freely, travel via some public roads, receive information and petition the government. The ban also deprives him of his liberties without a fair hearing and prevents him from judicial access, the lawsuit said.

Susan Kang Schroeder, chief of staff to the Orange County district attorney, defended the local laws as constitutional. Fourteen cities in Orange County have now adopted sex offender rules at the urging of the district attorney. "Protecting children from sexual predators, I believe, is one of the most important duties of government," Schroeder said....

The lawsuit asks the courts to permanently stop the four cities from enforcing their bans and declare the laws unconstitutional. The plaintiff was convicted more than 15 years ago, the suit said, and has long since served his sentence and been treated and is now employed and married with children.

October 6, 2012 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack

Wednesday, October 03, 2012

More on sex offenders' First Amendment challenge to local halloween challenge in California

In this post a few days ago, I reported on a notable (and groundbreaking?) legal action against a common local law this time of year being brought in California. Thanks to this new local article, headlined "Calif. Sex Offenders Sue to Overturn Halloween Restrictions," I can provide more information about this intriguing litigation:

An attorney representing five sex offenders who sued a southern Californian city over limits to their Halloween activities said the lawsuit will be the first of several she expects to file over such restrictions. Lawyer Janice Bellucci heads the 18-month-old advocacy group California Reform Sex Offender Laws. On Friday, she filed a lawsuit in federal court claiming that Simi Valley's ordinance violates her clients' First Amendment rights.

The suit seeks a judge's order prohibiting enforcement of the ordinance in Simi Valley, which has 119 registered sex offenders, according to a city report. Bellucci is representing five unnamed sex offenders, three of their spouses and two minor children, she said.

The ordinance, adopted Sept. 10, prohibits registered sex offenders in the Ventura County city of about 125,000 from displaying Halloween decorations, answering the door to trick-or-treaters or having outside lighting after dark on Oct. 31. Simi Valley councilman and LAPD officer Mike Judge said the law is modeled after similar Halloween laws enforced in other California cities, and is meant to protect children....

Registered sex offenders are also required to post signs with on their front doors reading, in 1-inch letters, "No candy or treats at this residence." Those offenders visible to the public on the state's Megan's Law website and convicted of a crime against a child are required to post the sign.

Sixty-seven of the city's offenders are listed on the website, according to a city report; the rest are convicted of misdemeanors and don't have their names on the public list.

Bellucci said the sign-posting requirement was "particularly egregious." "We consider that to be a violation of the U.S. Constitution," Bellucci said Tuesday.

The ordinance both imposes "forced speech" – the sign – and restricts speech by prohibiting Halloween celebrations, she said. "It's similar to Jews in Nazi Germany who had to wear the yellow star on their clothing," Bellucci said.... Her organization intends to begin filing lawsuits to challenge other statutes, she said.

The office of Simi Valley City Attorney Marjorie Baxter said the city had not been served with Bellucci's complaint, so it had no comment as of Tuesday afternoon. Baxter was quoted in the Ventura County Star, which first reported on the lawsuit, as saying: "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously."

Those who are convicted of violating the ordinance would be guilty of a misdemeanor and subject to a fine of up to $1,000 and/or up to six months in county jail, according to a city staff report. California residents who have been convicted of or pleaded no contest or guilty to a sex-related offense must register with local public safety authorities. Offenders are listed on the registry for life.

Recent related post:

October 3, 2012 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Monday, October 01, 2012

En banc Fifth Circuit clarifies its standard for restitution in child porn downloading cases

The Fifth Circuit has a huge and potentially hugely consequential en banc ruling today in In re Amy Unknown, No. 09–41238 (Oct. 1, 2012) (available here), concerning the standards for restitution awards in child pornography downloading cases. Here is how the lengthy opinion for the majority begins and ends:

The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.

This en banc court holds that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We VACATE the district courts’ judgments in both of the cases below and REMAND for further proceedings consistent with this opinion....

For the reasons above, we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse. We VACATE the district courts’ judgments below and REMAND for proceedings consistent with this opinion

The bold in the last paragraph above was added by me, in part to highlight why this issue seems now destined for a cert grant in some case before too long.

October 1, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Saturday, September 29, 2012

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

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

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

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

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

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

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

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

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

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

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

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

September 29, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (31) | TrackBack

Monday, September 24, 2012

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

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

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

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

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

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

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

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

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

September 24, 2012 in Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (26) | TrackBack

Thursday, September 20, 2012

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

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

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

September 20, 2012 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, September 18, 2012

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

September 18, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 17, 2012

Jerry Sandusky's sentencing scheduled for October 9, 2012

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

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

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

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

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

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

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

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

September 17, 2012 in Celebrity sentencings, Scope of Imprisonment, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, September 14, 2012

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

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

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

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

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

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

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

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

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

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

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

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

September 14, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Monday, September 10, 2012

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

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

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

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

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

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

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

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

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

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

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

September 10, 2012 in Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Thursday, September 06, 2012

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

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

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

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

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

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

September 6, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Wednesday, September 05, 2012

Third Circuit requires more rigorous approach to supervised release conditions

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

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

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

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

September 5, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Tuesday, September 04, 2012

"Sex Offender Exceptionalism and Preventive Detention"

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

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

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

September 4, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Thursday, August 30, 2012

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

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

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

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

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

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

August 30, 2012 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Tuesday, August 28, 2012

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

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

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

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

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

August 28, 2012 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

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

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

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

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

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

August 28, 2012 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Monday, August 27, 2012

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

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

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

August 27, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Sunday, August 26, 2012

A local iPad innovation in technocorrections for sex offenders

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

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

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

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

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

August 26, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections | Permalink | Comments (8) | TrackBack

Friday, August 24, 2012

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

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

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

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

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

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

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

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

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

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

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

August 24, 2012 in Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Monday, August 20, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

August 20, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Saturday, August 18, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

August 18, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (54) | TrackBack

Wednesday, August 15, 2012

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

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

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

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

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

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

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

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

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

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

August 15, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (25) | TrackBack

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

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

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

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

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

August 15, 2012 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25) | TrackBack

Tuesday, August 07, 2012

"Child Pornography and the Restitution Revolution"

The title of this post is the title of this new paper by Cortney Lollar now available via SSRN.  Here is the abstract:

Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images.  Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution.  This Article offers the first critique of this restitution revolution.

Traditional restitution is grounded in notions of unjust enrichment, and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose.  Instead, child pornography victims are receiving restitution simply for having their images viewed.  This royalty-type approach to restitution amounts to a criminal version of damages for pain and suffering and loss of enjoyment of life.  To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography.  Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography.

Rather than restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm.  Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance.  This Article calls for an end to the restitution revolution, and proposes several alternative approaches that better identify and address the consequences of child pornography.

August 7, 2012 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

Monday, August 06, 2012

Seventh Circuit panel rejects unreasonableness claim from sex offender given 30-year sentence

A Seventh Circuit panel has an intriguing discussion of child sex offense sentencing in the course of affirming a 30-year prison term in US v. Reibel, No. 11-3416 (7th Cir. Aug. 6, 2012) (available here). Here is how the per curiam opinion gets started:

Cory Reibel sexually molested his girlfriend’s three-year-old daughter and took pornographic photos of her.  He pleaded guilty to two counts of producing child pornography in violation of 18 U.S.C. § 2251(a) and received concurrent prison sentences of 360 months, the bottom of the Guidelines range but also the statutory maximum. Reibel argues on appeal that his sentence is unreasonable in two ways: it punishes him as severely as the worst child pornographers, and the judge based it on mere speculation about sex offenders and their victims rather than on evidence.  But we have repeatedly rejected the idea that the maximum sentence for child-pornography offenses must be reserved for the worst offenders, and the district judge had sound reasons for choosing the sentence he imposed. We therefore affirm the district court’s judgment.

Among other notable portions of the Reibel ruling, I found these passages especially interesting:

Reibel next challenges the reasonableness of his sentence by arguing that the district judge based it on mere speculation about sex-offender recidivism rates and the severity of damage suffered by sex-abuse victims rather than on dependable evidence....  In support of this contention he provides quotations from his sentencing hearing and cites several sex-offender studies finding comparatively low recidivism rates for first-time offenders, for perpetrators who were not themselves victims of sexual abuse, and for men who molest female rather than male children.  He also cites a study finding that the psychological repercussions of sexual abuse are influenced by the victim’s age at the time of the abuse (younger children tend to recover faster) and its duration, which in this case was relatively short thanks to the victim’s conscientious mother.

We are unpersuaded that the judge based Reibel’s sentence on speculation and ignored evidence that should have been taken into account....  Besides, to tie sex offenders’ sentences to the statistics Reibel presents in his brief would be repugnant: offenders would be able to secure a shorter sentence by molesting girls rather than boys; offenders who were once victims would receive longer sentences than those who were not; and abusers of young children would receive shorter sentences than those whose victims were older.

August 6, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Saturday, July 28, 2012

"Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration"

The title of this post is the title of this new paper on SSRN by Heather Cucolo and Michael Perlin. Here is the abstract:

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense.  The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the availability of meaningful treatment for this population remains uncertain in its availability and debatable as to its effectiveness.  Yet, society continues to clamor for legislation confining this cohort of offenders for “treatment,” and, ostensibly, protection of the community, and legislatures respond quickly to these calls.  This “reform legislation” often includes strict and demeaning post-release restrictions that track offenders and curb their integration into society.  These “reforms” continue to show no benefit either to the public or to the individual offender.  The absence of meaningful and effective treatment during confinement, combined with inhumane conditions upon release, make it far less likely that this cohort of individuals will ever become productive members of society.  Only through therapeutic jurisprudence, a focus on rehabilitation, and a dedication to authentically treating individuals who have committed sexual offenses with humanity, will it be possible to reduce recidivism and foster successful community reintegration.

This article takes a new approach to these issues.  It examines sex offender laws, past and present, looks at this area of sex offender commitment and containment through a therapeutic jurisprudence lens, and suggests basic policy changes that would optimally and constitutionally minimize re-offense rates, while upholding and protecting human rights of all citizens.  It highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly-committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances.  It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

July 28, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Sunday, July 22, 2012

Do US civil commitment procedures risk a "flagrant denial" of human rights?

The question in the title of this post is my response to this (slightly dated) article from the UK's Independent, which is headlined "Court blocks Shawn Sullivan's US extradition."  (Many thanks to the helpful reader who altered me to a story that developed the same day as the SCOTUS health care ruling).  Here is the basic back story:

US government attempts to extradite from Britain a man accused of child sex crimes were blocked by the High Court.... [as] judges sitting in London allowed an appeal against extradition by fugitive Shawn Sullivan, 43, after the American authorities refused to give an assurance that he would not be placed on a controversial sex offenders treatment programme in Minnesota.

Sullivan has been described as one of the US's most-wanted alleged sex criminals, and has also been convicted of sexually assaulting two 12-year-old girls in Ireland. His lawyers argued he could be declared "sexually dangerous" and placed on the US programme without a trial and with no hope of release.

Lord Justice Moses and Mr Justice Eady ruled on June 20 there was a real risk that, if extradited, Sullivan would be subjected to an order of civil commitment to the treatment programme in a "flagrant denial" of his human rights. The judges then gave the US government a last opportunity to provide an assurance that there would be no commitment order made.

Today Lord Justice Moses announced it had been confirmed by the Americans in a post-judgment note that "the United States will not provide an assurance", and Sullivan's appeal under the 2003 Extradition Act was therefore allowed. "The appellant will be discharged from the proceedings," said the judge.

Sullivan, who has joint Irish-US nationality, is wanted to stand trial for allegedly abusing three American girls in the mid-1990s. He was arrested in London in June 2010 while living with Ministry of Justice policy manager Sarah Smith, 34, in Barnes, south-west London. They married while he was held at Wandsworth Prison, before he was granted bail.

His counsel Ben Brandon said at a one-day hearing in April that no one had been released from the treatment programme, operated by the Department of Human Services in Minnesota, since it began in its current form in 1988. Commitment usually followed a person completing a prison sentence but a criminal conviction was not necessary for it to take place, said Mr Brandon. Aaron Watkins, appearing for the US government, told the court Sullivan did not satisfy the criteria for civil commitment but agreed no assurances had been given.

The judges ruled there was a real risk Sullivan would face commitment and a flagrant denial of his right not to suffer loss of liberty without due process, a right protected by Article 5.1 of the European Convention on Human Rights.

Lord Justice Moses said under the programme "there is no requirement that the offences took place recently nor, indeed, that the misconduct resulted in conviction, provided that the misconduct is substantiated by credible evidence". Mr Justice Eady said the risk of a flagrant denial of human rights was "more than fanciful".

The full ruling referenced in this news account is available at this link, and here are key passage from the ruling:

Civil commitment is unknown to European law, but is a process available in 20 states in the United States. Minnesota's law is said to be more draconian than many others.... [The] Office of the Legislative Auditor (OLA) for the State of Minnesota ... reports that the standard for commitment is relatively low, and many sexual offenders qualify for commitment.......[and] of the 600 committed since 1988, the evidence suggests that not one has been released, even on a conditional, supervised basis....

[T]he essential and justifiable purpose of these proceedings is to ensure that the appellant faces the trial he ought to face in respect of the serious allegations made against him. It is plainly in the interests of justice that he should face such a trial. Extradition is not being sought for the purposes of civil commitment....

[But] I conclude that there is a real risk that if returned Mr Sullivan will be the subject of an order of civil commitment ... [and] that there is a real risk that if extradited the appellant might be subject to an order for civil commitment within Minnesota and that that amounts to a risk that he would suffer a flagrant denial of his rights enshrined in [Art. 5 of the European Convention on Human Rights].

July 22, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Saturday, July 14, 2012

Fascinating Eighth Amendment ruling by Kansas appeals court about (uniquely?) extreme sex offender sentence

I have been slow to note a remarkable Eighth Amendment opinion handed down late last week by a Kansas appellate court in State v. Proctor, No. 104,697 (Kan. Ct. App. July 6, 2012) (available here). (Hat tip to Eugene Volokh.)  The lengthy opinion and its (limited?) import are hard to summarize, so I will quote in full the start of the opinion here:

In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation.  Proctor faces that prospect because he pled guilty to a sex offense — aggravated indecent solicitation of a child — for which he has received a permissible guideline sentence of probation.  For Proctor, a man in his early 20′s, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them.  Given Proctor’s circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.  The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system.  We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.

The governing statutes create the prospect of an exceptionally severe punishment — life in prison without parole is second only to a death sentence in its extremity — for persons convicted of designated sex offenses who then commit property crimes.  For Proctor, the disparity between his criminal conduct and that punishment reflects an imbalance of a magnitude implicating constitutional protections.  The Kansas sentencing statutes permit probation for both his underlying offense in this case and property crimes amounting to felonies.  But the commission of those two offenses in that order may lead to life in prison with no prospect for release.  Controlling authority from the United States Supreme Court and the Kansas Supreme Court construing the federal and state constitutional prohibitions on cruel and unusual punishment cannot be reconciled with that result.  The sentencing scheme exacts a punishment harsher than those for murder, kidnapping, and other crimes the Kansas Legislature has designated as more serious than Proctor’s.  It also appears to be more severe than similar statutes applied to sex offenders in the vast majority of other states.  Those are the ingredients of an unconstitutionally disproportionate punishment.

The analysis by this appellate panel to back up these conclusions is quite interesting and worth a close read by any and everyone interested in the development of modern Eighth Amendment jurisprudence.

July 14, 2012 in Assessing Graham and its aftermath, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, July 12, 2012

Who should prosecute and what is a fitting "sentence" for Penn State officials after Freeh Report?

The question in the title of this post is prompted by this CNN report on the new investigative report just released about Penn State's poor (and surely criminally negligent) behaviors in the Sandusky affair.  Here is how the CNN report starts:

Penn State's most powerful leaders showed "total and consistent disregard" for victims of child sex abuse and failed to protect children, according to the findings of a long-awaited internal review over how the university handled a scandal involving its former defensive coordinator.

In fact, the report says several former officials "empowered" Jerry Sandusky to continue his abuse, and investigators say legendary head football coach Joe Paterno could have stopped the attacks had he done more.

In a statement released along with the 267-page report, Louis Freeh, the former FBI director and federal judge who spearheaded the review, blasted several top former officials at the school, accusing them of forging an agreement to conceal Sandusky's attacks. "There are more red flags here than you can count," said Freeh, who added that the abuse occurred just "steps away" from where Paterno worked in the university's Lasch Building.

"Our most saddening and sobering finding is the total disregard for the safety and welfare of Sandusky's child victims by the most senior leaders at Penn State," Freeh wrote. "The most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized."

He went on to name four former school officials -- former President Graham Spanier, former Vice President Gary Schultz, Paterno, and former athletic director Tim Curley -- saying they "never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky's victims until after Sandusky's arrest." Their failure "to protect against a child sexual predator harming children" lasted "more than a decade," the full report says.

"They exhibited a striking lack of empathy for Sandusky's victims by failing to inquire as to their safety and well-being, especially by not attempting to determine the identity of the child whom Sandusky assaulted in the Lasch Building in 2001. Further, they exposed this child to additional harm by alerting Sandusky, who was the only one who knew the child's identity, of what (Mike) McQueary saw in the shower on the night of February 9, 2001."

The full report, with all its exhibits, can be found at this link.

July 12, 2012 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Wednesday, July 11, 2012

Fourth Circuit panel talks through challenging restitution issues for child porn downloaders

In a long discussion (which includes a concurring opinion), a Fourth Circuit panel today has weighed in on various statutory issues that arise when restitution is sought as part of the punishment for a child porn downloader. Folks following this issue, which has split the circuits in various ways, should read the full opinion in US v. Burgess, No. 09-4587 (4th Cir. July 11, 2012) (available here); here is the start and a notably snippet from the main opinion:

A jury convicted Albert C. Burgess, Jr., of two felonies involving the receipt and possession of materials depicting minors engaged in sexually explicit conduct. The district court sentenced Burgess to a term of 292 months’ imprisonment, and to supervised release for life.  The district court also ordered that Burgess pay, among other things, restitution of $305,219.86 under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259 (the restitution statute), for losses suffered by "Vicky," a child victim portrayed in pornographic material in Burgess’ possession.

Burgess challenges both his convictions and sentences on appeal.  We affirm his convictions and all aspects of his sentences, except the district court’s award of restitution to the victim.  Because the district court did not make specific findings regarding the elements of restitution, we vacate the restitution award and remand the case to the district court for a calculation of the loss Burgess proximately caused the victim....

We are confident in the skill of the district judges throughout this circuit to ascertain the appropriate amount of restitution in a given case.  Nevertheless, we are mindful of the challenges posed in the determination of damages under the restitution statute. Accordingly, we add our voice to that of the Ninth Circuit in Kennedy in requesting that Congress reevaluate the structure of the restitution statute in light of the challenges presented by the calculations of loss to victims in the internet age.  643 F.3d at 1266.

July 11, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Tuesday, July 10, 2012

"Are Our Sex Crime Laws So Radical They Deter Reporting?"

The provocative question in the title of this post comes from Professor Dan Filler via this post at The Faculty Lounge, which in turn links to this extended op-ed also by Dan Filler appearing in today's Philadelphia Inquirer.  The op-ed carries the headline "Penn State scandal shows sex-abuse laws can backfire," and here are excerpts:

[T]here is another lesson to be learned from this horrible [Sandusky] story, and it's time we acknowledged it.  Penn State's administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it.  Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime....

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse.  The resulting panic has had serious consequences.  It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses.  In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification.  Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders.  Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

There is little evidence that all these measures reduce the incidence of sex crimes one whit.  They have, however, dramatically raised the stakes of reporting and charging such crimes.

There's no doubt that Penn State administrators were trying to protect the university and its football program.  But they were also trying to protect Sandusky and themselves from the tsunami that would follow.  I take [former Former Penn State president Graham] Spanier at his alleged word that he feared an inhumane result.  He isn't alone: Some recent research suggests that some prosecutors shape their charging and plea-bargaining decisions to moderate the effects of current laws.

And then there are the victims. If administrators and prosecutors are concerned about inhumane responses to sex offenses, think about the most common kind of victims: those who are abused by relatives.  There is already plenty of pressure on children to keep quiet about abuse within families; public shaming and residential restrictions compound the consequences, which in many ways may end up hurting victims by dissuading them from reporting abuse and excluding them from communities when an offending family member is released.

There is no question that society needs strong laws prohibiting and punishing sexual abuse.  But those laws must be well-reasoned and tailored to be both just and effective.

Over the past 20 years, society has approached sex crimes with unbridled passion and anger.  This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing.  But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws.

The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes.  When laws become so radical that they work against the protection of victims, they are inherently inhumane.

July 10, 2012 in Celebrity sentencings, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (49) | TrackBack

Monday, July 09, 2012

Appeal waiver prompts federal judge to reject child porn plea deal

The Denver Post has this effective article on a notable recent ruling by a federal district judge to reject a plea agreement in order to preserve appellate review. The piece is headlined "Rejected Colorado child porn plea deal puts light on appellate waivers," and here are excerpts:

When Timothy Vanderwerff, who is accused of possessing child pornography, went to the federal courthouse in Denver this year to plead guilty to the crime, the deal he struck with prosecutors looked like many others.

Vanderwerff, who faces up to 20 years in prison for the most serious of the three charges against him, would plead guilty to one of those charges and face no more than 10 years in prison.  He could receive as little as probation, though Vanderwerff agreed in the deal not to ask for a sentence of less than five years.   Lastly, Vanderwerff agreed to waive his right to appeal, so long as the judge didn't sentence him to more than the negotiated range.

It was that final detail that gave Senior U.S. District Judge John Kane pause. Writing in an unusually candid order rejecting the plea deal — a rare occurrence itself — Kane said such waivers can hurt the justice system.  "Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions," Kane wrote.

Vanderwerff's case has been set for trial in early August....

Kane's refusal of the deal has thrown a light on the practice of negotiating appellate waivers into plea agreements. According to a 2005 study in the Duke Law Journal, appellate waivers are common across the country, occurring in as many as 90 percent of plea deals in some jurisdictions.

They began appearing in federal criminal cases in Colorado after the state's current U.S. attorney, John Walsh, took office in 2010, said Jeff Dorschner, a spokesman for the office.  Walsh, Dorschner said, was concerned about wasting the court's and the government's resources when defendants appeal the sentences they received after initially agreeing to those sentences in plea deals. Such appeals are almost always denied....

In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.

Vanderwerff's attorney also urged Kane to accept the deal. "Both sides benefit from it," Assistant Federal Public Defender Edward Harris wrote.

Kane, though, viewed the waiver dimly. "[S]acrificing constitutional rights at the altar of efficiency," he wrote, "is of dubious legality."

I have long thought appeals waivers (and related collateral review waivers) are among the most important and least examined aspects of post-Booker modern federal sentencing practices, with huge disparities based on different federal prosecutorial policies and practices and different judicial attitudes and approaches to accepting deals with such waivers.  Right after Booker, as revealed by some posts linked below, I blogged a lot about such waivers and about my view that they are void as against the public policy reflected in Booker's embrace of reasonableness review.  It seems as though Judge Kane's opinion (which I will link if/when I can find it on-line) reflects some of these sentiments.

Some older and more recent appeal waiver posts:

UPDATE:  A helpful reader sent me a copy of Judge Kane's opinion in Vanderwerff, and I have provided the document for downloading below.  The opinion runs a to-the-point 11-pages, and it is today's must read.  Here is one of many notable passages:

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers.  Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment.  See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012).  Ethical and moral values inevitably infuse the decisionmaking process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e., the fundamental values widely accepted by society and identifiable as such.

The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline.  That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly.  Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.

Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.  Indeed, appellate waivers would have insulated from review the underlying convictions in some of the most notable criminal decisions in the Supreme Court’s recent history.  See Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 249 (2005) (noting that waivers would have precluded appellate review in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v. Booker, 543 U.S. 220 (2005)).  Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.

Download USA_v_Vanderwerff opinion

July 9, 2012 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Friday, June 29, 2012

"Jerry Sandusky Could Get Pension in Prison Unless Bill Passes"

The title of this post is the headline of this ABC News story, which gets started this way:

Former Penn State football coach Jerry Sandusky will likely receive his $58,898-a-year state pension while in prison, unless a bill stalled in Pennsylvania's senate finance committee is quickly passed by the legislature and signed by the governor.

The bill would prevent employees convicted of sexual offenses related to their jobs from receiving their state pensions, said Cameron Kline, a spokesperson for State Sen. Larry Farnese, D-Philadelphia, who introduced the bill before Sandusky was charged with sexually abusing boys in his Second Mile program.

"This was introduced on Oct. 18, 2011, well before Sandusky's crimes came to light," Kline said. "It's something we think would be very appropriate for a case such as this. Now that it's over, we're a little concerned, confused and angry it's still stuck there. Apparently it's not a priority so the legislation still stays in committee."

Under current law, the pensions of public employees can be seized when a member is convicted of an Act 140 crime. That act includes crimes such as extortion, perjury and bribery but does not include sexual abuse, according to the Pennsylvania State Employees Retirement System website.

Pam Phile, spokesperson for the Pennsylvania State Employees Retirement System, said she could not speculate on whether Sandusky will have to forfeit his pension under the existing law, which was passed in 1978. "SERS reviews the sentencing documents in reaching a forfeiture determination and there has been no sentencing yet in this particular case," Phile said.

Kline said there are potentially other ways Sandusky could be stripped of his pension, but said passing a law at the state level would probably be the most logical. "There could be things at the Penn State level," he said. "[But] I really think it has to be a state law issue. This is the only thing that is at the ready to move. To my knowledge this is the best option."

June 29, 2012 in Celebrity sentencings, Collateral consequences, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Monday, June 25, 2012

Federal judge upholds Indiana's ban on sex offender use of Facebook and other social media sites

As reported in this AP article, late last week US District Judge Tanya Walton Pratt rejected a challenge to an Indiana law banning registered sex offenders from accessing Facebook and other social networking sites used by children. Here are the basics of the ruling and its context:

"Social networking, chat rooms, and instant messaging programs have effectively created a 'virtual playground' for sexual predators to lurk," Pratt wrote in the ruling, citing a 2006 report by the National Center for Missing and Exploited Children that found that one in seven youths had received online sexual solicitations and one in three had been exposed to unwanted sexual material online.

The American Civil Liberties Union of Indiana filed the class-action suit on behalf of a man who served three years for child exploitation, along with other sex offenders who are restricted by the ban even though they are no longer on probation....  "We will be appealing," ACLU legal director Ken Falk said in an email Sunday to The Associated Press. Appeals from federal courts in Indiana go to the 7th U.S. Circuit Court of Appeals in Chicago.

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many live and work and requiring them to register with police.  But the ACLU claimed that that Indiana's social networking ban was far broader, restricting a wide swath of constitutionally protected activities....

Though the law doesn't list which websites are banned, court filings have indicated the law covers Facebook, MySpace, Twitter, Google Plus, chat rooms and instant messaging services.  Earlier filings indicated LinkedIn was also covered by the ban, but Pratt's ruling said it wasn't because children under 18 can't sign up for it.

"It is a very well-reasoned opinion and the Indiana statute has certainly attempted to be specific," said Ruthann Robson, a professor of constitutional law at the City University of New York.  But she faulted the judge and the law for treating all sex offenders as if they were likely to commit another offense.  "A better statute might provide for some sort of individualized determination rather than a blanket prohibition," she said.

Social networking bans have been struck down in two other states. In February, U.S. District Judge Brian Jackson found that Louisiana's prohibition was too broad and "unreasonably restricts many ordinary activities that have become important to everyday life." Pratt said Indiana's ban wasn't as broad the overturned Louisiana ban.

Louisiana lawmakers passed a new law last month that more narrowly defines which sites are prohibited.  News and government sites, email services and online shopping are excluded from the new rules, as are photo-sharing and instant messaging systems.  The measure takes effect Aug. 1.

In Nebraska, a federal judge in 2009 blocked part of a law that included a social networking ban. A second legal challenge by an Omaha-area sex offender is set for trial in July.

Judge Pratt's full opinion in Doe v. Prosecutor, Marion County, Indiana, No. 1:12-cv-00062-TWP-MJD (S.D. Ind. June 22, 2012), is available at this link.  Here is how it starts:

In an effort to prevent the sexual exploitation of Hoosier children and protect the public at large, the State of Indiana prohibits certain registered sex offenders from using social networking sites, instant messaging programs, and chat room programs that allow access by persons under the age of 18.  See Indiana Code § 35-42-4-12(e).  The statute, enacted in 2008, makes the knowing or intentional use of these sites a Class A misdemeanor.  Id. Plaintiff John Doe (“Mr. Doe”), on his own behalf and on behalf of those similarly situated, contends that this statute runs afoul of the targeted sex offenders’ First Amendment rights.  Initially, Mr. Doe filed a motion for a preliminary injunction asking the Court to temporarily enjoin enforcement of the statute by Defendant, Prosecutor of Marion County, Indiana (“State”). (Dkt. #34.)  Since then, the parties have agreed that it would be appropriate for the Court to merge the preliminary injunction motion with a bench trial (Dkt. #40); see also Fed. R. Civ. P. 65(a)(2).  Accordingly, Mr. Doe now asks the Court to issue a declaratory judgment declaring Indiana Code § 35-42-4-12 unconstitutional on its face and to permanently enjoin the State’s enforcement of the statute.  The Court presided over oral arguments on May 31, 2012, and the Court thanks counsel for their excellent and thoughtful advocacy.

As discussed below, the Court finds that this content-neutral statute is narrowly tailored, leaves open ample alternative channels of communication, and is not overly broad.  It follows, then, that the statute does not violate Mr. Doe’s First Amendment rights. Accordingly, Mr. Doe’s requests to enjoin enforcement of the statute (Dkts. #34 and #42) are DENIED and final judgment is entered in favor of the State.

June 25, 2012 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (18) | TrackBack

Friday, June 22, 2012

Jerry Sandusky found guilty on 45 counts

and now seems all but certain to get a functional life sentence. My understanding is that he faces a 60-year minimum prison term based on certain counts of conviction, and he was taken immediately into custody following the reading of the verdict.

UPDATE: This AP article, headlined "What's next for Jerry Sandusky after the trial?," provides a road map concerning the legal process still to come. Here are how the piece begins:

The jury took less than two days to find Jerry Sandusky guilty of 45 of 48 counts of child sexual abuse, but the judge will need substantially more time to decide his punishment.

Judge John Cleland ordered a pre-sentencing report, which will take anywhere from one to two months to complete. During that time, Sandusky will be examined by the state Sexual Offenders Assessment Board to decide if he should be treated as a sexually violent predator, and prosecutors could ask the judge for a hearing.

The judge determines whether someone is a sexually violent predator — it carries stiffer reporting and treatment requirements once someone is out of prison — and can use information from the board's investigation in a sentencing decision.

If he's sentenced to state prison — which appears to be certain in this case — then Sandusky will be transferred to Camp Hill, in south-central Pennsylvania, which has 3,000 to 4,000 inmates, about 1,000 of whom are held temporarily for classification.

June 22, 2012 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack

Saturday, June 09, 2012

"Should Sex Offenders Be Buried With Military Honors?"

The question in the title of this post is the headline of this piece at BuzzFeed. Here are excerpts:

On Halloween night of 2001, James Allen Selby broke into the home of a recent college graduate named Jenny, hid in a closet until she returned, then dragged her into the shower and raped her.  He was convicted of this and at least 10 other rapes and sexual assaults, including one of a nine-year-old girl. But after he committed suicide in prison, he was buried with full military honors at Fort Sill National Cemetery in Oklahoma.  Now victims, and some military advocates, want a ban on sex offenders in military cemeteries so criminals like Selby can never be honored like that again.

At a House hearing Wednesday, Rep. Vicky Hartzler (R-MO) told the story of a constituent who was sexually abused as a child by her father, a veteran who was later buried in a military cemetery.  Said Hartzler, "She asked that I help ensure no other child has to endure this injustice."  Hartzler has introduced the Hallowed Grounds Act, which would bar Tier III sex offenders — those who have committed crimes against children — from being buried in veterans' or national cemeteries.  She argued, "These offenders have surrendered their right to be honored by victimizing and oppressing others."

The bill has the support of a variety of military and veterans' groups.  Raymond Kelley, legislative director of the Veterans of Foreign Wars, said in the hearing that the Hallowed Grounds Act would be an appropriate extension of existing laws that bar those convicted of capital crimes (those punishable by death, such as murder) from military burial.  Thomas Murphy of the Veterans Benefits Administration also voiced support for the substance of the bill, though he had some logistical concerns about his implementation.

The Army is actually against the bill, but only because it doesn't go far enough. Kathryn Condon, Executive Director of Army National Cemeteries Program, said at the hearing that the Army couldn't support the bill as drafted because it failed to ban "the interment or memorialization of a person found by an appropriate federal authority to have committed a tier III sex offense, but not yet convicted."

But Richard Wright, a professor of criminal justice and author of the book Sex Offender Laws: Failed Policies, New Directions, says the bill is wrongheaded.  He says it's part of a trend in the last 20 to 25 years of "post-conviction laws" targeted specifically at Tier III offenders, but says these laws don't actually accomplish much.  Our criminal justice system, he says, now operates under the belief that "in order for the victim to get justice, something extra has to be done to the offender."  But in fact, offering extra help to the victim — counseling, for instance — is more beneficial to victims' healing processes than additional punishments for the criminal.

June 9, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack

Thursday, June 07, 2012

Sex offender barred from schools running for local Utah school board

As reported in this local article, headlined "Registered child sex offender runs for school board," a candidate for a school board in Utah is garnering a lot of extra attention for something he did two decades ago. Here are the details:

A convicted sex offender is hoping to be elected for a seat at the Granite School Board. Dick Wagner Jones, 67, of Holladay, committed his crime more than two decades ago and served five years in prison for it, with 10 years of parole.  And since his offense involved a minor, Jones will be on the Utah sex offender registry until 2015.

It would make for an unusual problem for the school district if he is elected since Jones’ criminal history bars him from being around schools. Granite Board of Education President Gayleen Gandy says there is not much she can say about the candidacy of Jones.  “To be honest, I don’t expect it will deflect a whole lot of attention. Anyone who’d like to run, can register as a candidate,” says Gandy....

If Jones is elected to the Granite School Board this fall, there are stipulations in the law that would allow him to visit schools for business.  However, Jones would need to have his visits approved beforehand and they would have to happen when no students are present. Granite School District officials say they are unable to comment on the candidacy of any individual regardless of the situation.

June 7, 2012 in Sex Offender Sentencing | Permalink | Comments (18) | TrackBack

Wednesday, June 06, 2012

"The Evolution of Unconstitutionality in Sex Offender Registration Laws"

The title of this post is the title of this new article authored by Catherine L. Carpenter and Amy E. Beverlin appearing in the May 2012 issue of the Hastings Law Journal. Here is the abstract:

More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.

This Article does not challenge the state’s legislative power to enact sex offender registration laws.  Instead, this Article posits that, even if sex offender registration schemes initially were constitutional, serially amended sex offender registration schemes — what this Article dubs super-registration schemes — are not.  Their emergence demands reexamination of the traditionally held assumptions that defined original registration laws as civil regulations.

Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear.  When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose.  Ultimately, this Article is a cautionary tale of legislation that has become unmoored from its constitutional grounding because of its punitive effect and excessive reach.

June 6, 2012 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Thursday, May 31, 2012

Federal district judge hears constitutional attack on Indiana sex offender Facebook ban

As reported in this new AP article, headlined "Judge hears fight to sex offenders' Facebook ban," one notable legal challenge to one of many bans on sex offender access to social media got a court hearing today in Indianapolis.  Here are the details:

A federal judge said Thursday she plans to rule within a month on the constitutionality of an Indiana law that bans registered sex offenders from using social networking websites where they could prey on children.

The American Civil Liberties Union of Indiana is heading the class-action suit on behalf of a man who served three years for child exploitation, along with other sex offenders who are restricted by the ban even though they are no longer on probation.  Federal judges have barred similar bans in Nebraska and Louisiana.  Similar restrictions remain in effect in New York, Illinois and North Carolina.

In a one-hour hearing at U.S. District Court in Indianapolis, Judge Tanya Walton Pratt questioned attorneys about convicted sex offenders' civil rights and whether the state law is outdated in the age of Facebook, LinkedIn and dozens of other social networking sites.

ACLU attorney Ken Falk argued that even though the 2008 law is only intended to protect children from online sexual predators, it also prevents sex offenders from using social media for political, business and religious activity such as using Facebook to follow the pope or comment on newspaper websites, posting a profile on LinkedIn or following presidential candidates on Twitter.

Falk said the law violates the rights of communication, receiving information and association, all of which the U.S. Supreme Court has ruled are guaranteed by the First Amendment.  He also argued that the ban was unnecessary because Indiana already has a law that makes it a crime to use the Internet to contact a child for the purposes of sexual gratification.

Indiana Deputy Attorney General David Arthur argued that the 2008 ban is limited only to social networking sites that allow access by children, and that Facebook, Twitter and similar sites aren't the only forms of communication. "We still have television. We still have radios. And believe it or not, people still talk face-to-face," he said. Arthur also said the ban doesn't apply to email or Internet message boards....

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many of them live and work and requiring them to register with police.  But Falk told Pratt that the social networking ban was far broader, restricting a wide swatch of constitutionally protected activities.

Arthur compared the social networking ban to laws barring sex offenders from school property and other places frequented by kids. Only in this case, he said, the place is virtual.

Similar social networking bans have been struck down in two other states. In February, U.S. District Judge Brian Jackson found that Louisiana's prohibition was too broad and "unreasonably restricts many ordinary activities that have become important to everyday life."

Louisiana lawmakers passed a new law this month that more narrowly defines which sites are prohibited. News and government sites, email services and online shopping are excluded from the new rules, as are photo-sharing and instant-messaging systems. The measure takes effect Aug. 1.

In Nebraska, a federal judge in 2009 blocked part of a law that included a social networking ban. A second legal challenge by an Omaha-area sex offender is set for trial in July.

May 31, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Local restrictions on sex offenders continue to grow and expand

This New York Times article, headlined "Public-Place Laws Tighten Rein on Sex Offenders," documents that we have still not yet reached a tipping point when it comes to post-sentencing restrictions on sex offenders. Here are excerpts:

Convicted sex offenders are barred from surfing at the famous pier in this Orange County city. In nearby Dana Point, they are prohibited from casting a fishing line in the harbor.

And if they wander into a public park in Mission Viejo, they could be shipped back to jail for six months, following the City Council’s vote this year to ban them from a host of places where children congregate. “We need to protect our kids,” the Orange County district attorney, Tony Rackauckas, had told the Mission Viejo City Council. “The danger is very real.”

Orange County finds itself at the enter of a new wave of laws restricting the movement of sex offenders. The county government and a dozen cities here have banned sex offenders from even setting foot in public parks, on beaches and at harbors, rendering almost half the parks in Orange County closed to them. Ten more cities are considering similar legislation.

And Orange County is far from alone. In recent years, communities around the country have gone beyond regulating where sex offenders can live and begun banning them outright from a growing list of public places.

From North Carolina to Washington State, communities have designated swimming pools, parks and school bus stops as “child safety zones,” off limits to some sex offenders. They are barred from libraries in half a dozen Massachusetts cities, and from all public facilities in tiny Huachuca City, Ariz. “Child safety zones are being passed more and more at the city and county level,” said Elizabeth Jeglic, a professor at John Jay College of Criminal Justice. “It’s becoming more and more restrictive. They’re not only limiting where sex offenders can live, but they’re limiting their movement as well.”

The proliferation of such restrictions reflects the continued concerns of parents and lawmakers about potential recidivism among sex offenders. But it has also increasingly raised questions about their effectiveness, as well as their fairness.

Opponents have dismissed “child safety zones” as unenforceable, saying they are designed to make politicians look tough on crime and drive sex offenders from the area, not make children safer. “These are cheap laws that can be passed to make people feel good,” said Charles P. Ewing, author of “Justice Perverted: Sex Offense Law, Psychology, and Public Policy.”...

Greg Bird was convicted of indecent exposure in 2001. Since then, Mr. Bird said, he has gotten married and turned his life around. But he now pauses at the idea of having children of his own, because he knows he could not even take them to the park to play catch. “Sometimes I wonder, is there any compassion?” Mr. Bird said. “I know I don’t deserve compassion. I broke the law. I get that. But these laws set people up to fail more.”

In some cities, law enforcement has done very little to enforce child safety zones. In Albuquerque, where some sex offenders have been banned from libraries since 2008, with some exceptions, the police have never even issued a trespass notice, a prerequisite to an arrest. Thus far, the parks bans here have led to just three convictions across the entire county.

Still, Mr. Rackauckas said he was satisfied that the laws were serving as a deterrent. “We’re not going to know how many kids were not molested or groomed for later sexual contact as a result of this law,” he said....

[O]nce one community has enacted “child safety zones,” they often spread quickly to nearby towns, as municipal governments fear becoming local havens for sex offenders. In Lake County, Fla., this year, county commissioners — surrounded by communities with tough laws on sex offenders — responded with some of the most restrictive measures anywhere, including a law prohibiting sex offenders from going within 300 feet of a park, school or playground.

Joe Carchio, a city councilman in Huntington Beach, where a park ban went into effect in December, said he felt bad for lower-level offenders whose convictions many years ago prevent them from taking their children to Little League games. Still, he wishes he could have made the restrictions even broader. “In a lot of ways, it is a feel-good law; it makes people feel safe,” Mr. Carchio said. “You make choices in this world, and I guess the choice that individual made is one that is going to follow him for the rest of his life.”

May 31, 2012 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Monday, May 21, 2012

Federal judge rules Texas officials can be liable for sex offender conditions

This new article from the Austin American-Stateman, which is headlined "Judge: Parole officials can be held liable over sex offender restrictions," reports on a notable ruling from a federal judge concerning suits against how Texas has managed its sex offender registry.  Here are the details:

In the latest rebuke of state policies for classifying parolees as sex offenders, an Austin federal judge has ruled that top state parole officials can be held personally liable for continuing missteps.

U.S. District Judge Lee Yeakel of Austin, in an order issued late Friday, blasted the state's continuing refusal to provide due process hearings before imposing restrictive sex-offender conditions on felons never convicted of a sex crime.  Yeakel for the first time ruled that the seven-member state Board of Pardons and Paroles, 12 parole commissioners, state parole director Stuart Jenkins and other parole officials can face monetary damages for their actions.

It's a significant determination that, if not reversed on appeal, could prove costly for both the officials and taxpayers, if several pending inmate lawsuits are successful.  A jury verdict in another case two years ago cost the state approximately $80,000, officials involved in that case said earlier....

The order was the latest setback for the Texas Board of Pardons and Paroles and state corrections officials, who have insisted for years that, to ensure public safety, they could impose the stringent conditions on parolees without a due process hearing.

Although previous court rulings have required the hearings, the state has not routinely offered them until recently — and only then under certain circumstances.  Yeakel's order — the latest ruling to indicate that federal courts have lost their patience with the state — came in a suit filed by parolee Buddy Jene Yeary.

Last fall, the judge blocked the state from enforcing the sex offender restrictions — officially known as Special Condition X — on Yeary, an unusual step for a judge to take. According to state records, Yeary pleaded guilty to drug charges in 2003 in Johnson County, south of Fort Worth, and was sentenced to 25 years in prison. Though he was initially indicted on charges of aggravated sexual assault of a child, his sentence order states that "the sex offender registration requirements (in state law) do not apply to the defendant," according to the suit.

Despite that, state records show that when Yeary was paroled in the summer of 2007, parole officials required him to register as a sex offender, placed him under the restrictive sex-offender conditions of release and ordered him to participate in a sex offender treatment program.

In his order Friday, Yeakel ruled that the state has for six years been aware that it must provide hearings to parolees in such cases and that officials' continuing failure to do so leaves them open to liability.  "In light of the resistance of the state of Texas to providing parolees with the procedural due process guaranteed them by the Constitution, even after receiving repeated mandates from federal and state courts, the court is unconvinced that Texas will not return to its unconstitutional policies and practices," the 31-page order states. "Any stigmatic injury suffered by Yeary due to the imposition and continued enforcement of Special Condition X may entitle Yeary to compensatory damages."

Yeakel refused to dismiss Yeary's lawsuit, as state officials had asked.  Instead, he said it would head to a trial....

The ruling comes after years of legal decisions requiring state parole officials to provide hearings before they impose sex offender restrictions on felons never convicted of a sex crime. In addition to federal courts, the state Court of Criminal Appeals last fall ordered the restrictions removed from the parole conditions for a Houston kidnapper because he was not afforded a due process hearing before they were imposed and because he had not been convicted of a sex crime.

May 21, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Sunday, May 20, 2012

Federal civil commitment of sex offenders subject to new legal challenges

This lengthy article, headlined "Prisoners challenge extended confinement for sex crimes," provides an effective report on the nature and status of the legal issues surrounding sex offenders that the feds have civilly committed after they have completed their prison terms. Here are excerpts:

The high walls surrounding the Federal Correctional Complex at Butner leave no doubt that it’s a prison.  But for dozens of men held behind those walls, there is a growing question of whether they should be prisoners.

They have served their time and now are being imprisoned not for what they did, but what they might do.  They are sex offenders being held -- sometimes for years -- under a recent federal law that allows the detention of those deemed so dangerous the government will not risk their release even when their sentence is complete.  Now, with the bulk of the detainees being held at Butner, federal courts in North Carolina are trying to sort out who should remain in and who should be released from this legal limbo.

Lawyers for the detainees say the extended captivity reflects a law that applies a different and unfair standard to sex offenders.  They also say many detainees do not meet the level of threat the 6-year-old law requires for indefinite detention.  “The law doesn’t seem fair to me,” said Raleigh attorney John Keating Wiles, who has represented several of the men.  “Traditionally, we don’t take away people’s liberty because they might commit a crime.”

The U.S. Department of Justice has sought to extend the confinement of at least 136 sex offenders since 2006, but almost half the attempts have been rejected by the courts or dropped by the government.  Of the men being held for hearings, some, indeed, have criminal histories and behavioral offenses inside prison that raise questions about their release into the community.

In some cases, though, it is unclear whether the problems are deviant sexual compulsions or broader mental impairments and illness compounded by drug and alcohol abuse.  By law, a federal judge must rule on whether a detainee is too dangerous to be released.  In the Eastern District of North Carolina, a visiting judge from Michigan has been brought in, and several district judges have been assigned to help clear a backlog of cases that stacked up in the first four years after the law was passed.

Many cases were stalled by the lawsuit brought on behalf of Graydon Comstock, one of the first to be detained as sexually dangerous after serving time for receiving child pornography.  In 2011, a year after the U.S. Supreme Court ruled the government had that authority, a federal court ruled on the merits of classifying Comstock as sexually dangerous and found he did not qualify for commitment.

Eric J. Brignac, a federal public defender who has been involved with many of the cases in the state’s Eastern District, said the commitment procedure has highlighted a societal challenge. “It’s that tension between liberty and security,” Brignac said....

Each case essentially becomes a battle of the experts, with the government presenting doctors, psychologists and mental health analysts to bolster its claims. The defense brings in experts who offer their own assessments. It is up to a judge to sort through the opinions and evidence....

Thomas Shane Matherly, 36, who was scheduled for release in November 2006 but awaits a hearing on whether he’s sexually dangerous, was in New Bern in March in a federal courthouse making an argument similar to that made by the so-called “enemy combatants” detained at Guantanamo Bay. He argued that he is being wrongly held and is seeking damages of more than $50 million for emotional pain and suffering.

Court filings in his case offer a picture of life inside Butner for sex offenders caught in the legal limbo.  His life is like that of a prisoner. He wears an inmate uniform and eats in the prison mess hall. Matherly contends that he and others in a similar circumstance often are called “baby rapers” and “child molesters,” taunts that “very likely could lead to a physical confrontation at some point.”

In some ways, Matherly contends, his detention under the civil procedure has been more restrictive than when he was serving his sentence for possessing child pornography. Prisoners can take classes in blueprint reading, carpentry, car care and electrician skills, he contends, but detainees may not.  Narcotics Anonymous and Alcoholics Anonymous sessions are not available to the detainees, he says.  The detainees are not given as much access to the recreation yard, he complains, or the recreation center with TVs, pool tables, basketball courts, exercise equipment, a band room and hobby-craft rooms.

“The government cannot have it both ways,” Matherly stated in court documents seeking damages. If the confinement is part of a civil process, he further stated, he should not be confined like a criminal. “Civil means civil,” Matherly stated, “with all the rights that accompany it.” Matherly argues that he has “the right to be free from harm.”...

The men branded by the government as sexually dangerous ostensibly are being held because they are mentally ill and need treatment, but few have enrolled in the sexual offender treatment program.  Lawyers and mental health workers advise them to be careful what they say in therapy, acknowledging that it could be used against them at trial....

Some question whether the underlying notion behind the new commitment procedure is about treating the sickest and most dangerous or more about issuing life sentences in cases where criminal law would not otherwise allow. Though prison statistics show low recidivism rates among sex offenders, high-profile cases of repeat offenders have left a lingering belief to the contrary.  “In general, sex offenders are seen as different,” said Brignac, the public defender.  “I think, in part, it is because we see them as incurable.”

May 20, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack