Sunday, March 17, 2013

Comments on Steubenville outcomes: "Juvenile Court is supposed to be better than this"

Steubenville-rape-case-wide-landovMy Ohio State College of Law colleague Kimberly Jordan, who helps runs OSU's Justice for Children Project, sent me the following interesting (sentencing-related) comments following today's verdicts and sentences in the (surprisingly?) high-profile juvenile sex offense case in Steubenville, Ohio:

The intersection of social media, teen drinking, small town football, and sex led to two young men, Trent Mays and Ma’lik Richmond, being adjudicated delinquent in juvenile court this weekend -- the equivalent of a guilty finding if the boys had been adults at the time of the incident.  Their being found guilty is not a huge surprise; the prosecution did a tremendous job pulling thousands of text messages and social media posts to make their case.  The surprise is that the court failed to adequately address their disposition, or imposition of the sentence.  From all appearances, no investigative work was done by the court post-adjudication.  That means no pre-sentence investigation, social history, or risk assessment tool was utilized to determine what punishment was appropriate for these boys.  Their attorneys, in prior hearings, had presented letters and documents to the court to argue for their pre-trial release, but did not have the opportunity today to present any witness testimony or other information before Judge Lipps ordered them remanded to juvenile prison.

This is one unique function of juvenile court; judges are given wide latitude in fashioning a disposition that serves to meet the needs of the child and hold him accountable for his offense.  As an attorney, though, I am shocked at the serious deprivation Trent and Ma’lik are now facing, without any attention paid to their mental health, possible intervening life circumstances, prior participation (or not) in rehabilitative services, and individual strengths and weaknesses.  Yes, they did the crime, but juveniles are not subject to mandatory sentences.  Trent and Ma’Lik were not tried as adults.  They could have been, having been charged with the serious crime of rape.  The prosecutor handling the case for the State of Ohio has the discretion whether to ask the juvenile court to bind over, or transfer the juvenile’s case to adult court.  Certain categories of offense are automatically transferred, but rape is not one of them (the legislature could certainly include it, but has wisely left transfer for the murder categories of crime).  In order for the juvenile court to exercise discretion to transfer a case to the adult criminal court, it must make a finding that the particular juvenile is not amenable to juvenile court treatment.  Given that Trent and Ma’lik had never been in trouble with the juvenile court before, this likely would have been an uphill battle for the prosecution.

Since the case stayed in juvenile court, only juvenile court sentences -- called dispositions -- were available if the boys were found guilty.  Here, Judge Lipps utilized the most severe punishment possible for Trent and Malik -- commitment to The Department of Youth Services (DYS), or juvenile prison.  Both boys will be assessed for their treatment needs once at the facility, including undergoing assessments to determine their level of risk for re-offending in a sexual manner.  They will be treated like inmates, but they will also go to school and receive counseling, likely both in groups and as individuals.  Their stay at DYS will be determined by the amount of progress they make in meeting their treatment goals. Trent, however, will serve a minimum of two years in DYS, while Ma’lik will serve a minimum of one year.  They can both be held until they are 21 years old.

Some might wonder whether a 4-5 year juvenile sentence is enough punishment for these boys’ actions.  In Ohio, juveniles can be sentenced to both juvenile and adult time if they are deemed “Serious Youthful Offenders.”  Again, the individual prosecutor handling the case has the decision making power; the ultimate determination is made by the juvenile court.  The court has to decide that, “given the nature and circumstances of the violation and the history of the child, the length of time, level of security, and types of programming and resources available in the juvenile system alone are not adequate to provide the juvenile court with a reasonable expectation” that the purposes of the juvenile court will not be met. O.R.C. 2152.13(D)(2)(a)(i).  This boils down to a judge believing that the juvenile court’s punishment will not be enough to either rehabilitate the child, or is not adequate to hold the child accountable for his actions, or both.

Regardless of whether the boys serve anywhere close to the maximum sentence, there will be a determination, at the end of their prison stay, about whether they will have to register as sex offenders.  That determination is rightly made after the provision of rehabilitative services at DYS.  At the time of their release, the court will hold a hearing to determine the effectiveness of their treatment, and determine whether registration is necessary to protect the public.

Juvenile court was the right place for Trent and Ma’lik.  Regardless of the circumstances surrounding them in Steubenville football and politics, their actions were ones of teenagers.  Criminal, hurtful, and horrid acts, but ones that they can learn from.  They are not hardened criminals and their lives are not over.  Hopefully, their future interactions with the court, in addressing their treatment and possible registration issues, will be more focused on their individual rehabilitative efforts, so that all is not lost for these young men.

March 17, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Saturday, March 16, 2013

"Sentencing Policy Adjudication and Empiricism" with a focus on federal child porn sentencing

The title of this post is drawn from the basic title of this notable new and timely article by Melissa Hamilton now on SSRN and just titled "Sentencing Policy Adjudication and Empiricism."  Here is the abstract, which highlights why this piece is especially a must-read for anyone working on federal child porn cases:

Federal sentencing is in disarray with a raging debate pitting Congress, the United States Sentencing Commission, and the federal judiciary against each other.  Ever since the Supreme Court rendered the federal guidelines as merely advisory in United States v. Booker, the rate of variances from guidelines’ recommendations has increased.  After the Supreme Court in Kimbrough v. United States ruled that a sentencing judge could reject the crack cocaine guideline for a policy dispute with a Commission guideline, the variance rate has risen further still.  While Booker/Kimbrough permits the judiciary some discretionary authority, it is threatening to the Commission and the legitimacy of its guidelines.

The downward variance rate is at its most extreme with a very controversial crime: child pornography offending.  The courts are in disagreement as to whether, as a matter of law, a sentencing judge has the authority to use a Kimbrough-type categorical rejection of the child pornography guideline. Through a comprehensive review of federal sentencing opinions, common policy objections to the child pornography guideline are identified. The guideline is viewed as not representing empirical study, being influenced by Congressional directives, recommending overly severe sentences, and resulting in both unwarranted similarities and unwarranted disparities. The issue has resulted in a circuit split. This article posits a three-way split with four circuit courts of appeal expressly approving a policy rejection to the child pornography guideline, four circuits explicitly repudiating a policy rejection, and three circuits opting for a more neutral position.  A comprehensive review of case law indicates that the circuit split is related to unwarranted disparities in sentencing child pornography offenders nationwide. This assessment was then corroborated by empirical study.

The Sentencing Commission’s dataset of fiscal year 2011 child pornography sentences were analyzed to explore what impacts policy rejections and the circuit split may have on actual sentences issued.  Bivariate measures showed statistically significant correlations among relevant measures.  The average mean sentence in pro-policy rejection circuits, for example, was significantly lower than in anti-policy rejection circuits.  A multivariate logistic regression analysis was employed using downward variances as the dependent variable.  Results showed that that several circuit differences existed after controlling for other relevant factors, and they were relatively consistent with the direction the circuit split might suggest.

The article concludes that the child pornography guideline suffers from a multitude of substantial flaws and deserves no deference.  It also concludes that there are no constitutional impediments to preventing a district judge from categorically rejecting the child pornography guideline.  Booker and its progeny stand for the proposition that there are no mandatory guidelines, even if a guideline is the result of Congressional directive.

Some recent related posts:

March 16, 2013 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, March 14, 2013

Third Circuit panel discusses at length all the problems with SORNA

The start of the Third Circuit panel's lengthy opinion today in US v. Reynolds, No. 08-4747 (3d Cir. Mar. 14, 2013) (available here), explains the current mess that is certain federal sex offender registration laws better than I could. Here goes (with footnotes removed):

This case returns to us after the Supreme Court’s review in Reynolds v. United States, 132 S. Ct. 975 (2012). Remand requires that we reach the merits of Reynolds’s claim that the regulatory rule upon which his indictment was based was promulgated in violation of the Administrative Procedure Act (“APA”).  This claim gives rise to three questions: (1) What is the appropriate standard of review of an agency’s assertion of good cause in waiving the APA’s notice and comment requirements?  (2) Did the Attorney General have good cause to waive these requirements in promulgating a rule governing the retroactivity of the Sex Offender and Registration Notification Act’s (“SORNA”) registration requirements?  (3) If the Attorney General lacked good cause to waive the requirements, was Reynolds prejudiced by the failure to comply with the APA’s notice and comment requirements?

The courts of appeals are divided on each of these questions.  On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General’s actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question.  On the second question, the Fourth and Eleventh Circuits have held that the Attorney General had good cause to waive notice and comment, while the Fifth, Sixth, and Ninth Circuits have held that he did not.  On the final question, the Fifth Circuit has held that the Attorney General’s lack of good cause does not prejudice defendants, while the Sixth Circuit has held that it is prejudicial.

We conclude that we need not decide the appropriate standard of review today because the Attorney General’s assertion of good cause cannot withstand review even under the most deferential standard available.  We also conclude that the Attorney General’s lack of good cause is prejudicial to Reynolds.  Accordingly, we will vacate Reynolds’ conviction.

March 14, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Tuesday, March 12, 2013

Notable debate in Wisconsin over new state child porn sentencing law

Regular readers are quite familiar with (and perhaps even tired of) the long-running debates over federal child pornography sentencing laws. But, as detailed in this local article from Wisconsin, headlined "New law limits judges' power in child pornography cases," similar issues and debates arise in states sentencing systems, too.  Here are excerpts from the article, which strikes all the usual themes concerning the impact of mandatory minimum sentencing provisions:

A new law intended to toughen punishment for those convicted of viewing child pornography is drawing criticism from court officials. 

In April 2012, state lawmakers passed into law a mandatory, minimum three-year prison sentence for the felony offense.  Under a clause in the old law, judges had the discretion to order lesser penalties depending on the circumstances of the case.

Rep. Mark Honadel, R-South Milwaukee, who sponsored the mandatory penalty, testified that judges were letting too many offenders stay out of prison. “Sentences of less than 3 years were meant to be issued sparingly but became the standard,” Honadel said.

State Rep. Jeremy Thiesfeldt, R-Fond du Lac, said the law was conceived as a way to provide consistent sentences for all offenders who commit the same crime.  “Prior to this, sentences were all over the map. In a judicial sense, this probably wasn’t the best way to operate,” Thiesfeldt said. “Anytime you can establish standards of fairness, that’s a good thing.”...

Fond du Lac County Circuit Court Judge Peter Grimm, who has worn the hat of a public defender and district attorney before his election to the bench 22 years ago, says judges need discretion in sentencing to ensure the punishment fits the circumstances of the crime and the criminal.  “These mandatory minimum sentences fly in the face of current judicial training in which judges are trained to use evidence-based sentences designed to let judges make the best decision based on the facts of the case,” said Grimm. “Judges should not be locked into a minimum sentence because the legislature wants to be tough on crime.”

Dodge County District Attorney Kurt Klomberg has mixed feelings concerning the new law. “The law does take discretion away from the judges.  The judge is no longer able to go below the minimum (sentence) even in the face of strong mitigating evidence,” Klomberg said.  “The prosecutor now has greater power in the sentencing process as the decision on the charge will be a decision on the minimum allowable sentence after conviction.”

Klomberg also recognizes that the new law could impact settlement in cases involving child pornography.   “The defendants in these cases are often willing to plead to the charges in hopes of convincing the judge to go below the minimum,” Klomberg said.  “Under the new law, there is no possibility, and it may result in more trials.”

Defense attorney and former Fond du Lac County District Attorney Michael O’Rourke disagrees with a one-size-fits-all approach.   “Each case and each defendant are different and judges should have the ability to fashion a sentence that is good for both the community and aids defendants in rehabilitation,” O’Rourke said

The former prosecutor says judges need discretion in sentencing to ensure the penalty doesn’t outweigh the crime.   “The retired 63-year-old with no previous record who went to an adult porn site and was browsing and clicked onto a site that includes child pornography and then looks at a couple of pictures is different than the person who may already have a record, or who is actively seeking child porn,” O’Rourke said.  “Some peer-to-peer sites will download thousands of images in seconds onto a computer and the individual has seen none of them.  A judge should have the discretion to consider that.”

Wisconsin’s new child pornography law offers one exception to the minimum sentence, Thiesfeldt said.  Several cases involving teens trading inappropriate pictures by cell phone prompted lawmakers to include a clause in which a judge can issue lesser penalties if the offender is no more than four years older than the child depicted.

March 12, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Monday, March 11, 2013

Split Eighth Circuit panel weighs in on child porn restitutution issues

A few weeks ago, as reported in this post, the Sixth Circuit in US v. Gamble ended any betting on how that court was going to sort through the circuit-splitting issues concerning awards of restitution in child porn downloading cases.  Today, the majority of an Eighth Circuit panel in US v. Fast, No. 12-2752 (8th Cir. Mar. 11, 2103) (available here), was quick to adopt the majority approach to these issues (hat tip to How Appealing), via an opinion that gets started this way:

Robert M. Fast pled guilty to one count of receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court ordered him to pay $3,333 restitution to Vicky — the pseudonym for the child-pornography victim whose images were on Fast’s computer — under 18 U.S.C. § 2259. Vicky challenges the restitution award by direct appeal and in a petition for mandamus.  She argues that Fast need not proximately cause the losses defined in subsections 2259(b)(3)(A) through (E) to be liable for them, and that the district court misinterpreted the “full amount of [her] losses” under section 2259(b)(1).  Because she lacks standing as a nonparty to bring a direct appeal, this court grants the motions to dismiss by Fast and the government.  Having jurisdiction over her mandamus petition under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), this court denies her petition.  

Judge Shepherd authors an extended dissent, which gets started this way:

I concur with respect to sections I, II, and III of the majority’s opinion. I dissent with respect to sections IV and V, and with respect to the judgment, because I would follow the Fifth Circuit’s approach and hold that only damages awarded under 18 U.S.C. § 2259(b)(3)(F) are subject to a proximate cause requirement. See In re Amy Unknown, 701 F.3d 749, 752 (5th Cir. 2012) (en banc).  Consequently, I would grant Vicky’s petition for mandamus relief and remand for the district court to recalculate her losses.

As I have noted before (and likely will have an opportunity to mention again in the future), it seems only a matter of time before the Supreme Court will feel it has to take up these issues in some manner.

A few more recent and some older related federal child porn restitution posts:

March 11, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 10, 2013

"Neighborhoods Seek to Banish Sex Offenders by Building Parks"

The title of this post is the headline of this notable new article in today's New York Times.  Here are snippets:

Parents who pick up their children at the bus stop in this city’s Harbor Gateway neighborhood say they often see men wearing GPS ankle bracelets and tell their children to stay away.  Just up the street, 30 paroled sex offenders live in a single apartment building, including rapists and child molesters. More than 100 registered sex offenders live within a few miles.

So local residents and city officials developed a plan to force convicted sex offenders to leave their neighborhood: open a tiny park.

Parents here, where state law prohibits registered sex offenders from living within 2,000 feet of a school or a public park, are not the only ones seizing on this approach. From the metropolis of Miami to the small town of Sapulpa, Okla., communities are building pocket parks, sometimes so small that they have barely enough room for a swing set, to drive out sex offenders.  One playground installation company in Houston has even advertised its services to homeowners associations as an option for keeping sex offenders away.

Within the next several months, one of Los Angeles’s smallest parks will open here in Harbor Gateway, on a patch of grass less than 1,000 square feet at the corner of a busy intersection.  But even if no child ever uses its jungle gym, the park will serve its intended purpose.  “Regardless of whether it’s the largest park or the smallest, we’re putting in a park to send a message that we don’t want a high concentration of sex offenders in this community,” said Joe Buscaino, a former Los Angeles police officer who now represents the area on the City Council.

While the pocket parks springing up around the country offer a sense of security to residents, they will probably leave more convicted sex offenders homeless. And research shows that once sex offenders lose stable housing, they become not only harder to track but also more likely to commit another crime, according to state officials involved with managing such offenders.

“Putting in parks doesn’t just break up clusters — it makes it impossible for sex offenders to find housing in the whole city,” said Janet Neeley, a member of the California Sex Offender Management Board.  “It’s counterproductive to public safety, because when you have nothing to lose, you are much more likely to commit a crime than when you are rebuilding your life.”

Restrictions on where sex offenders can live, which have been passed in most states, have already rendered most residential areas in many cities off limits.   The number of homeless sex offenders in California has increased threefold since 2006, when the latest residency restrictions were passed, and a third of sex offenders on parole are now homeless, according to reports from the Sex Offender Management Board....

Mr. Buscaino said he supported housing for sex offenders, but said the pocket park would improve the quality of life in Harbor Gateway. “Let’s house them, absolutely, but not in a high-population area like this one,” he said.

Many of the sex offenders who live near Harbor Gateway have been placed there with the help of parole officers, precisely so they would not end up on the street.  The landlord of some nearby apartments where dozens of sex offenders on parole live, who spoke on the condition of anonymity for fear of retaliation, said that keeping paroled sex offenders together in transitional housing actually kept the community safer because it places controls on them even after they leave prison....

In some urban areas, however, there is already nowhere left for sex offenders to legally live.  In Miami, dozens of convicted sex offenders camped under a bridge, unable to find any other shelter, until the encampment was broken up several years ago.  Another camp in Miami, where a dozen offenders slept on the sidewalk, was dispersed last year when Marc Sarnoff, a city commissioner, had three pocket parks built in the neighborhood.

Mr. Sarnoff said he did not know where the offenders ended up.  “There has to be a strategy in place so they don’t just live on the sidewalk,” Mr. Sarnoff said.  “We need more resources in place so these guys don’t reoffend. But that’s beyond the city’s resources.  It has to be at the state level.”

March 10, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Thursday, March 07, 2013

DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken

Thanks to a helpful reader, I have learned that earlier this week a representative of the US Department of Justice sent a lengthy and detailed letter to the US Sentencing Commission concerning its recent huge child pornography federal sentencing report (basics here and here).  Disappointingly, as of this writing, I cannot seem to find a copy of this important and interesting letter on the website of either the DOJ or the USSC.   ButI have a pdf copy of the letter, which is dated March 5, 2013, and I have posted the full 7-page letter below.

The lengthy letter needs to be read in full by any and everyone concerning with federal child porn sentencing dynamics.  And these sentences from the first page highlights that DOJ agrees with the USSC's basic conclusion that the current child porn federal sentencing guidelines are badly broken:

[T]he Department agrees with the Commission's conclusion that advancements in technologies and the evolution of the child pornography "market" have led to a significantly changed landscape -- one that is no longer adequately represented by the existing sentencing guidelines.  Specifically, we agree with the Report's conclusion that the existing Specific Offense Characteristics ("SOCs") in USSG § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness.  The current guidelines can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses.

Download DOJ letter to USSC on CP report

As I suggested in this recent post, now that the US Sentencing Commission has said that the current federal guidelines for child pornography are broken, it not longer seems proper for these guidelines to be given much weight and it seems plainly improper for within-guideline CP sentences to still carry a presumption of reasonableness on appeal. Now that the Justice Department has officially stated that it agrees with the USSC's position on these guidelines, I wonder if federal prosecutors will not be not merely authorized, but actually required, to agree with the common defense arguments in CP cases that the current guidelines should be afforded little or no weight in the broader 3553(a) analysis.

Indeed, in light of this DOJ letter, which details the many ways ways in which the current CP guidelines are broken, perhaps circuit courts should begin to adopt a blanket presumption of unreasonableness for any and every within-guideline child porn sentence. (Of course, that presumption could be rebutted if and when a district judge were to explain how other 3553(a) factors justified a within-guideline sentence in a child porn case. But, in light of what the USSC and DOJ are saying about the flaws of the current CP guideline, it would seem only logical now to view any within-guideline child porn sentence as presumptively flawed rather than presumptively sound.)

Recent related posts:

March 7, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, March 05, 2013

The many (impossible?) challenges of federal child pornography sentencing

The title of this post is inspired in part by the US Sentencing Commission's recent report, which highlights many of the flaws with the current child porn sentencing guidelines and set forth a number of ideas and needs for effective reform (basics here and here).  But what is really driving it is this new local article reporting on a federal sentencing in Maine, headlined "‘There will be no more victims,’ judge tells man at child pornography sentencing."  First, here are the basics of the sentencing story:

“There will be no more victims of Walter Mosher,” a federal judge told the 65-year-old convicted sex offender Monday in sentencing him to more than a dozen years in prison for possessing child pornography.

U.S. District Judge John Woodcock sentenced Walter A. Mosher Jr. of Hampden to 12 years and seven months behind bars. The judge also ordered him to remain on supervised release for life when he is released.

Mosher is scheduled to be sentenced Wednesday at the Penobscot Judicial Center on one count of gross sexual assault. Mosher reported to police through his attorney that he molested a boy under the age of 14 between Feb. 1, 2011 and March 1, 2012, according to the sentencing memorandum filed in federal court by his attorney, Jeffrey Silverstein of Bangor. Mosher pleaded guilty to the Class A crime Nov. 21 at the Penobscot Judicial Center.

Under the federal sentencing guidelines, Woodcock was allowed to consider Mosher’s recent guilty plea as “relevant conduct” in connection with the possession of child pornography charge, even though the victim was not depicted in the images found on Mosher’s computer. The federal judge focused on the sexual abuse of the child as he directed his comments at Mosher.

“There are some cases in this court that cry out for justice and yours is one of them,” Woodcock told Mosher shortly before sentencing him. “This was an inexplicable and hideous violation of trust. What we’ve seen today is just the tip of the iceberg of pain you have caused.” A parent of the victim told the judge that Mosher needed “to go away, and go away for a very long time.”

Mosher was required to register as a sex offender because he was convicted in 1986 in Aroostook County Superior Court in Houlton in connection with the molestation or abuse of 15 minors, according to the sentencing memorandum. Since serving 11 years on the 1986 charges, Mosher was not charged with another crime until he was indicted by a federal grand jury on March 15, 2012, according to court documents.

In an emotional statement, Mosher described in graphic detail how he was sexually abused as a child by a female relative. He said that when he committed his earlier crimes, he was going through a divorce and drinking heavily. “I am deeply ashamed and sorry for what I have done,” he told Woodcock. “I don’t know why I have done these things. I have no idea how I got to a place to do these horrible things.”

Mosher has been held without bail since his arrest the day after he was indicted. Mosher pleaded guilty to possession of child pornography in June in federal court. According to court documents, Mosher’s computer contained images of child pornography, specifically digital images and videos that were produced using minors engaged in sexually explicit conduct....

Because of his 1986 convictions, Mosher faced a minimum of 10 years in federal prison and a maximum of 20 years and a fine of up to $250,000. On the gross sexual assault charge, Mosher faces up to 30 years in state prison and a fine of up to $50,000.

Even without knowing any more that these most basic details about the defendant in this case or the particulars of his crime, it is easy to see all the tough questions facing Chief Judge Woodcock: e.g., should the defendant's federal child porn sentence here be longer (or shorter) given that he is surely soon to get a lengthy state sentence for gross sexual assault? should the defendant's recidivism at such an advanced age mean that a federal sentence now should try to ensure Mosher dies in prison, or should the sentence at least offer the defendant a glimmer of hope that he might be able to be free again in his 80s? With the facts of the criminal and the defendants criminal history so troublesome, should the defendant get much (if any) credit for pleading guilty and accepting responsibility?

I could go on and on highlighting all these challenges in this one case, but what really caught my attention when reviewing this article was these notably disparate headlines below the piece noting "similar articles":

In turn, a quick search for headlines from the same local Maine paper (the Bangor Daily News) revealed these additional sentencing headlines concerning the disposition of child porn charges over just the last 24 months:

A quick click through to a number of these article reveals that there are a number of striking parallels as well as a number of striking differences in the offenses and offenders in these cases.  Nevertheless, I still find notable and telling that even in a small and seemingly homogeous federal district like Maine, here is an accounting of the number of months in prison given to 10 child pornography offenders (going from lowest to highest sentence):

6 months; 12 months; 60 months; 84 months; 151 months; 192 months; 192 months; 240 months; 300 months; 340 months

The point of my post here is not to assert or even suggest that any of these referenced sentences is right or wrong or should be higher or lower.  Without spending a lot more time looking through the facts of all these cases, I think it is extremely hard to reach even a tentative conclusion about this pattern of sentencing result.  But that is my main broader point: there is, of course, a pressing interest and enduring goal for everyone involved to try to determine the "right" sentence in federal child pornography cases not only in each individual case, but also across a range of cases.  But, these cases all necessarily raise so many important and challenging issues, I wonder and worry if the goal to get federal child pornography sentencing "just right" is a kind of "fool's gold" that many will pursue at a great cost but ultimately with little of value to show from the pusuit.

Recent related posts:

March 5, 2013 in Booker in district courts, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

Sunday, March 03, 2013

"Should defendants’ age, health issues be sentencing factors?"

The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:

Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.

“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.

Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010.  The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient.  The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”

In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago.  He questioned whether Bistline would get adequate medical care in prison.

Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.

Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not.  Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”

In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems.   Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.

Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease.  Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.

Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”

According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010.  That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.

Prior related posts:

March 3, 2013 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, February 27, 2013

Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?

Regular readers know that I have never been a fan of the so-called "presumption of reasonableness" for within-guideline sentences adopted by some circuit courts after Booker .  This is because, despite its repeated reference and application in the circuits which have adopted it, there has yet to be any appellate rulings which explores — or, for that matter, even expressly discusses — when and how this “presumption” can be rebutted on appeal of a within-guideline sentence and what might be the legal consequences of any such (phantom) rebuttal. In actuality, this purported "presumption" is really just the means some circuits use to declare that any and every within-guideline sentence is functionally immune from substantive reasonableness review: notably, in the eight+ years since Booker, not a single within-guideline sentence has ever been found substantively unreasonable in the circuits that have embraced this so-called “presumption.”

That I said, I remain ever hopeful that those circuits which embrace the so-called "presumption of reasonableness" for within-guideline sentences will try to give some sensible and functional meaning to this appellate review standard. And, as the question in the title of this post suggest, I think the US Sentencing Commission's new report on federal child pornography sentencing (basics here), provides a unique opportunity to give the review standard some real meaning. I come to this conclusion after seeing this key passage (from p. xviii) in the executive summary of the new report:

The current sentencing scheme in §2G2.2 places a disproportionate emphasis on outdated measures of culpability regarding offenders’ collecting behavior and insufficient emphases on offenders’ community involvement and sexual dangerousness.  As a result, penalty ranges are too severe for some offenders and too lenient for other offenders. The guideline thus should be revised to more fully account for these three factors and thereby provide for more proportionate punishments.

In short, the US Sentencing Commission is saying that the current federal guidelines for child pornography are broken because they give too much significance to some offense factors and too little to others, and thus guideline-calculated ranges for child porn offenses are "too severe for some offenders and too lenient for other offenders." Put even more directly, the USSC is here declaring that the existing child porn guidelines are not a reasonable means to ensure just, effective and proportionate punishment.

This basic reality in turn prompts my query, which is designed to promote circuits which generally apply the "presumption of reasonableness" for within-guideline sentences to now recognize (and expressly hold) that this appellate presumption does not apply in any case involving the child porn guidelines. In saying this, I am not asserting that this new USSC report necessarily connoted that any and all within-guideline child porn sentence must be declared (or even presumed) substantively reasonable. But I am asserting that, because the USSC has now clearly declared that the existing guidelines now set forth "penalty ranges [that] are too severe for some offenders and too lenient for other offenders," it would be both unjust and obtuse for a circuit court to now presume any within-guideline child porn sentence is substantively reasonable.

Recent related post:

February 27, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Sixth Circuit weighs in with instructions on restitution sentencing in child porn cases

A helpful reader alerted me to a notable ruling by a Sixth Circuit panel today in US v. Gamble, No. 11-5394 (6th Cir. Feb 27, 2013) (available here).  Here is how the majority opinion gets started:

In unrelated child pornography convictions, both James Gamble and Shawn Crawford were ordered by their respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received.  Restitution was ordered jointly and severally under 18 U.S.C. § 2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases.  Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers.  Finally, while Gamble additionally appeals his within-Guidelines prison sentence, it is substantively reasonable.

Judge Kethledge adds a brief and very interesting sepearate opinion which starts and ends this way:

I join all but part II.B of the Court’s thought ful opinion.  I do not join that part because I would direct the district court to make a more flexible and open-ended determination of each defendant’s share of responsibility for Vicky’s losses....

In determining the amount of a restitution award under § 2259, the courts can only do their best.  It seems to me that a more flexible inquiry, focused on moral fault, and using all the evidentiary tools at the c ourt’s disposal, is the way to accomplish that end.

As I have stressed before, it is only a matter of time before the Supreme Court has to take up these issues, and this Sixth Circuit opinion provides the Justices with additional thoughtful reading for when they do.

February 27, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

US Sentencing Commission releases big new report on federal child porn sentencing

As reported in this official press release, this morning "the United States Sentencing Commission submitted to Congress its comprehensive report examining federal sentencing policy in child pornography cases." Here is more from the press release, which serves as a partial summary of the 468-page(!) report (which is available in full here):

Although still only a small percentage of the overall federal caseload, child pornography prosecutions have grown significantly during the past decade and now account for nearly 2,000 federal cases each year.  That growth reflects the increasing role of the Internet in child pornography offenses.  Before the Internet, law enforcement officers had significantly curtailed the child pornography market in the United States.

Significant technological changes in offenders’ conduct have occurred since the federal penal statutes and sentencing guidelines for child pornography offenses were last amended comprehensively a decade ago.  Child pornography offenders today typically use Internet technologies such as peer-to-peer file-sharing programs that enable offenders to distribute, receive, and collect child pornography images more easily and in greater quantities than when the current penalty structure was established.  Several penalty enhancements in the guidelines for child pornography offenses,such as use of a computer, now apply to typical offenders.  As a result, prison sentences for efendants convicted of federal child pornography offenses have almost doubled in the last decade to approximately five years for possession and 11 years for receipt and distribution.

Judge Saris concluded, “Because of changes in the use of Internet-based technologies, the existing penalty structure is in need of revision.  Child pornography offenders engage in a variety of behaviors reflecting different degrees of culpability and sexual dangerousness that are not currently accounted for in the guidelines.”

The Commission’s study found that approximately one in three federal child pornography offenders had a known history of engaging in illegal sexual misconduct prior to or in conjunction with their federal child pornography offenses.  Such illegal behavior ranged from sexual assaults against children to “non-contact” sex offenses such as soliciting self-produced sexual images from minors in on- line communication. The Commission’s recidivism study also concluded that approximately 7 percent engaged in illegal sexual misconduct after serving their sentences for federal child pornography offenses.  Both figures should be considered conservative because such offenses are underreported....

Judge Saris stated, “The Commission will continue to study child pornography sentencing practices, and looks forward to working with Congress on developing a sentencing scheme that serves to better distinguish offenders, thereby reducing unwarranted sentencing disparities in these serious crimes.”

All the pieces of this important new report are available via this link. The press release summary alone suggests there is considerable food for sentencing thought in this important new USSC report, and I am going to start my view by reading closely the 26-page executive summary available here.

I expect a lot more posts on this topic will following the days ahead. And in addition to digging into the substance of this report, I also will be keeping on eye on how federal officials in other branches and the media respond to what the USSC has to say.

February 27, 2013 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Monday, February 25, 2013

California unable to keep up with sex offender who disable GPS tracking devices

The Los Angeles Times has this new article highlighting yet another dysfunction in California's operation of its criminal justice system.  The full headline provides an effective summary of the lengthy piece: "Paroled sex offenders disarming tracking devices: Thousands of high-risk parolees are removing GPS monitors, often with little risk of serving time, because jails are too full to hold them.  Some have been charged with new crimes."  Here is how the article gets started:

Thousands of paroled child molesters, rapists and other high-risk sex offenders in California are removing or disarming their court-ordered GPS tracking devices — and some have been charged with new crimes including sexual battery, kidnapping and attempted manslaughter.

The offenders have discovered that they can disable the monitors, often with little risk of serving time for it, a Times investigation has found.  The jails are too full to hold them. "It's a huge problem," said Fresno parole agent Matt Hill. "If the public knew, they'd be shocked."

More than 3,400 arrest warrants for GPS tamperers have been issued since October 2011, when the state began referring parole violators to county jails instead of returning them to its packed prisons.  Warrants increased 28% in 2012 compared to the 12 months before the change in custody began.  Nearly all of the warrants were for sex offenders, who are the vast majority of convicts with monitors, and many were for repeat violations.

The custody shift is part of Gov. Jerry Brown and the legislature's "realignment" program, to comply with court orders to reduce overcrowding in state prisons.  But many counties have been under their own court orders to ease crowding in their jails.   Some have freed parole violators within days, or even hours, of arrest rather than keep them in custody. Some have refused to accept them at all.

Before prison realignment took effect, sex offenders who breached parole remained behind bars, awaiting hearings that could send them back to prison for up to a year.  Now, the maximum penalty is 180 days in jail, but many never serve that time.  With so little deterrent, parolees "certainly are feeling more bold," said Jack Wallace, an executive at the California Sex Offender Management Board.

Rithy Mam, a convicted child stalker, was arrested three times in two months after skipping parole and was freed almost immediately each time.  After his third release, his GPS alarm went off and he vanished, law enforcement records show.  The next day, he turned up in a Stockton living room where a 15-year-old girl was asleep on the couch, police said.  The girl told police she awoke to find the stranger staring at her and that he asked "Wanna date?" before leaving the home.

Police say Mam went back twice more that week and menaced the girl and her 13-year-old sister, getting in by giving candy to a toddler, before authorities recaptured him in a local park.  He is in custody on new charges of child molestation.

Californians voted in 2006 to require that high-risk sex offenders be tracked for life with GPS monitors strapped to their bodies.   The devices are programmed to record offenders' movements and are intended, at least in part, to deter them from committing crimes. The devices, attached to rubber ankle straps embedded with fiber-optic cable, transmit signals monitored by a private contractor.

They are easy to cut off, but an alarm is triggered when that happens, as it is when they are interfered with in other ways or go dead, or when an offender enters a forbidden area such as a school zone or playground.  The monitoring company alerts parole agents by text message or email.

Arrest warrants for GPS tamperers are automatically published online.  The Times reviewed that data as well as thousands of jail logs, court documents and criminal histories provided by confidential sources.  The records show that the way authorities handle violators can vary significantly by county.

I am pleased that the LA Times is looking into how GPS tracking of sex offenders is working (or not working) in California these days.  But I am disappointed that this article, which is quick to present a few ugly examples of bad criminals committing more crimes because of the failings of GPS, does not even try to explore whether overall sex offender recidivism rates are down since GPS tracking got started in California.

Whether it is the innocent person wrongly convicted or the guilty pedophile wrongly freed, it is always going to be easy for reporters to find anecdotes to document a singular failing of any part of a massive criminal justice system.  It is much harder to determine — and yet ultimately much more important for making sound reforms — whether and how any particular part of a massive criminal justice system is doing more harm than good and thus needs to be drastically reformed or just tweaked.

February 25, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, February 04, 2013

Guest post: "Victims of Human Trafficking Can Vacate Convictions in NY"

As regular readers know, I welcome guest posts from all quarters, and I was pleased when prominent New York criminal practitioner Arkady Bukh (firm website here) sent me this extended discussion of an important legal issue:

It has long been a fact that the victims of human trafficking, especially sexual trafficking, suffer not just from their abusers, but also from a criminal record that they carry with them the rest of their lives. This record can keep them from turning their lives around by keeping them from regular employment, good credit and in general ruining their overall reputation in the community. How sad is it that someone coerced or sold into sexual slavery at the age of 13 cannot obtain a normal life even when their abuser has been caught or they have escaped from them. At the present time there are seven states that have enacted legislation to clear the criminal records of the victims of human trafficking and they are: New York, Illinois, Maryland, Nevada, Vermont, Washington and Hawaii. This is a brief overview of the law as it presently stands in New York State.

a) The New York Vacating Convictions law at this time can only be applied to persons that have been convicted of two crimes: 1) New York Penal Law §230.00 – Prostitution; 2) New York Penal Law §240.37 Loitering for the Purpose of Engaging in a Prostitution Offense.

b) This statute states that there is not official documentation of trafficking required for a victim to qualify, however, if they do have official documentation such as a letter from the Dept. of Health stating that they were a victim of human trafficking then there is a presumption created that their convictions were from trafficking. There is no evidence such as this required in the New York Law and personal affidavit is accepted.

c) Importantly the New York law does NOT MANDATE that victims bringing their motions for vacatur to have to prove that they have exited prostitution or have entered some sort of "rehab" type of program in order to gain this remedy. However, in order to insure that victims can come forward even years after their victimization has ended to clear their conviction history, the legislation has included the following paragraph for their benefit, not as a mandate:

A motion under this paragraph shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or has sought services for victims of such trafficking, subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of such trafficking that may be jeopardized by the bringing of such a motion, or for other reasons consistent with the purpose of this paragraph. N.Y. CRIM. PROC. LAW §440.10(1)(i)

d) A major aspect of the victimization of these people is that they have often been threatened with death or injury to themselves or family members by their abusers. For this reason, the NY law allows a victim's motion to be made with privacy allowed to the petitioner. Legal Services and other advocacy groups have made these petitions using only the victim's initials, much the way a minor is often protected in the family courts.

e) The New York creates actual vacatur for the victim which is stronger than an expungement which may be offered by other states. A vacatur is actually the closest thing to erasing the convictions of the victim where in some states that after an expungement the petitioner must then ask the records to be sealed. New York State does not have an expungement remedy for any crime which is why this is done as a vacatur actually vacating the convictions and creating a clean record.

f) If the victim has met all the requirements of this law and is a victim of human trafficking, the Judge has no discretion not to vacate the convictions and dismiss the accusatory instruments. The elements needed to be met are: 1) was a victim of human trafficking, 2) was charged with the crimes and 3) these crimes that they have been charged with were due to the fact of human trafficking.

g) However, a Judge may have discretion to take any additional action they deem reasonable such as possibly vacating other offenses that they consider part of the whole trafficking life of the victim.

h) This law is retroactive and can cover any convictions the victim incurred prior to the law being enacted.

It is a positive thing that New York passed this legislation in 2010 and a good thing that six other states have similar laws on their books. However, it is very sad that 43 states have yet to take this action to protect the victims of human trafficking, especially at a time when this crime has become more and more prevalent. Many victims of trafficking are brought to this country illegally by their abusers and this law makes it possible for them to obtain legal status. "The Board of Immigration Appeals has rules that when a state court vacates a judgment of conviction based on a procedural or legal deficit,..…the conviction is eliminated for immigration purposes".

New Jersey along with other states such as Florida are looking at legislation strengthening their laws against human trafficking, it can just be hoped that at the same they will add legislation that will vacate the convictions of those victims of this crime.

February 4, 2013 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, January 28, 2013

"Rethinking Restitution in Cases of Child Pornography Possession"

The title of this post is the title of this article newly posted on SSRN and authored by Jennifer A.L. Sheldon-Sherman. (The piece is especially timely in light of yesterday's New York Times magazine cover story discussed here). Here is the abstract:

Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth.

In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm.

To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.

January 28, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (39) | TrackBack

Sunday, January 27, 2013

Fascinating NY Times magazine cover story on child porn victims and restitution

27cover-sfSpanToday's New York Times magazine has this remarkable cover story headlined "The Price of a Stolen Childhood," which provides a fascinating profile of the two young women now at the center of legal disputes in federal courts nationwide over restitution sentences imposed upon defendants who download child pornography. The lengthy article has too many interesting facets to effectively summarize, but here is one snippet telling early parts of the legal aspects of the story:

Six months after [the first] sentencing [which included a restitution award in October 2008], [Amy's lawyer James] Marsh went after another child-pornography defendant, Arthur Staples, a 65-year-old sheriff’s deputy in Virginia, who had chatted online with an undercover detective and expressed an interest in young children. Staples sent one image of a young girl (not Amy), and he was caught with more than 600 pictures on his computer, including hers. Staples agreed not to appeal any sentence or restitution judgment. The judge sentenced him to 17½ years, and made the unusual move of ordering him to pay all of Amy’s claim. To Marsh’s surprise, Staples turned out to have $2 million in assets. He has since paid $1.2 million to Amy.  (Marsh says the government let Staples’s wife keep part of the estate.) While Amy has been turned down for restitution by some courts, which have stated that there was not enough proof that any one man who viewed her pictures was responsible for the harm she has suffered, she has won more than 150 cases, totaling $1.6 million. Most of the amounts aren’t large: $1,000 or even $100, paid out in checks as small as $7.33.

Nicole has also been pursuing restitution.  Her lawyer, Carol Hepburn, did her own research and got in touch with Marsh when she learned about the claims he was bringing for Amy. The two lawyers now collaborate on ideas and strategy, though they represent their clients separately. Since receiving her first check for $10,000, Nicole has collected more than $550,000, mostly in small amounts from 204 different men. So far only a few other child-pornography victims have gone to court for restitution. Many may not know there is a legal remedy; others don’t know their images have circulated....

Study after study links child sexual abuse to psychological trauma, addiction and violent relationships in adulthood. There is almost no research, however, that deals with the specifics of Amy and Nicole’s experiences: What additional harm comes from knowing that pictures of your childhood exploitation are circulating widely?

The Supreme Court actually addressed this question in its 1982 decision upholding child-pornography bans. “‘Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution,’” Justice Byron White wrote, quoting from a book about abused children. “‘Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place.’”

David Finkelhor, a sociologist who directs the Crimes Against Children Research Center at the University of New Hampshire, sees the moral weight of the Supreme Court’s proclamation, but not the empirical proof.  “The evidence doesn’t yet tell us to what extent the experience of being a pornography victim aggravates the experience of the sexual abuse itself,” he told me. “How do you separate it out?”

Courts have disagreed on this question.  In at least a dozen cases, defendants have appealed restitution decisions and mostly won.  In five of those cases, federal appeals courts have expressed skepticism that Amy and Nicole should receive more than nominal restitution.  Two other appeals courts have allowed the young women to recover from individual defendants as members of the group of viewers but, so far, only for amounts of $10,000 or less. (Amy collected a far greater sum from Arthur Staples because he waived his right to appeal.)

January 27, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (35) | TrackBack

Wednesday, January 23, 2013

Seventh Circuit finds unconstitutional Indiana statute prohibiting sex offenders from social media

The Seventh Circuit today handed down a significant new media and sex offender First Amendment ruling in Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (7th Cir. Jan 23, 2013) (available here).  Here is how the 20-page unanimous panel ruling gets started:
A recent Indiana statute prohibits most registered sex offenders from using social networking websites,instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.

I am pretty sure this is the first significant circuit court constitutional ruling on this kind of state sex offender internet prohibition, and a quick skim suggests that this Doe ruling is a fairly thorough and thoughtful review of the challenging legal and policy issues raised in this setting. I would guess that Indiana will seriously consider seeking en banc review and/or a cert petition in an effort to preserve its statute, but I would also predict that the Justice may think these issues ought to percolate more before granting review.

UPDATE This Politco piece about the Doe ruling provides some information about similar rulings and a statement from the Indiana AG in reaction to the decision:

A similar law in Louisiana was thrown out in February of last year, though the state then passed a revised law requiring sex offenders to disclose their status on social networks, and a Nebraska judge in 2009 blocked parts of a sex offender law that restricted Internet access.

Indiana officials did not know Wednesday whether they would appeal the decision.  “The Indiana Legislature made a policy decision in 2008 that the state’s reasonable interests in protecting children from predators outweighed the interest of allowing convicted sex offenders to troll social media for information.  We have worked with county sheriffs and prosecutors in our defense of the legal challenges to these protections of our children, and we will need to review this 7th circuit ruling to determine the state’s next steps,” Indiana Attorney General Greg Zoeller said in a statement.

January 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, January 18, 2013

Seventh Circuit panel affirms 70-year sentence for "self-described 'kingpin' of child pornography"

Though not clearly breaking any new ground, a Seventh Circuit panel has a notable discussion of reasonableness review today in US v. Boroczk, No. 12-1022 (7th Cir. Jan. 18, 2012) (available here).  The unanimous panel ruling in Boroczk gets started this way:

Darrick C. Boroczk (“Boroczk”),a self-described “kingpin”of child pornography on the internet, created hundreds of sexually explicit images and videos involving two of his own children.  Boroczk pled guilty to four counts of manufacturing and one count of possessing child pornography.  After a day long sentencing hearing, the district court imposed four 15-year sentences on the manufacturing counts and a 10-year sentence on the possession count, to be served consecutively, for a total of 70 years’ imprisonment.  On appeal, Boroczk argues that the district court committed procedural error and imposed a substantively unreasonable sentence. Finding no merit in Boroczk’s arguments, we affirm the 70-year sentence.

January 18, 2013 in Booker in the Circuits, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Wednesday, January 16, 2013

How do puppy rapists get treated in prison?

It is often reported that child rapists are often treated as pariahs even among the most hardened criminal is prison.   Consequently, this stunning local sentencing story prompted the (serious?) question in the title of this post. The article — which has an ending that led me to double-check it wasn't from The Onion — is headlined "N.Y. super who had sex with dog gets prison."  Here are the details:

An apartment building superintendent who was caught on tape entering a unit and having sex with the tenant's puppy was sentenced to prison Tuesday.

Kujtim Nicaj, 44, was sentenced Tuesday by Westchester County Judge Barry Warhit to 6.5 years in prison and 7 years' probation after pleading guilty in October 2012 to burglary and sexual misconduct charges.  "This case was unusual to say the least," Warhit said.  "You exhibited cruelty to the animal.  Your behavior was inexcusable."

Alan Kachalsky thought something in his apartment was amiss for months — blinds drawn that had not been, a window left open that he had left shut.  But nothing ever went missing, and, fearing he may come off as paranoid, Kachalsky never went to the police. Instead, he set up three cameras and waited.  Kachalsky shared his apartment at the Rye Colony Cooperative Apartments with a male Labrador puppy, Gunner, who, unbeknownst to Kachalsky, was the real target of the burglar.

The burglar, it turned out, wasn't there to steal anything, Kachalsky said Tuesday, but for something far more unimaginable.  Kachalsky, an attorney, said it never occurred to him that someone was returning to have sex with his dog.  Kachalsky turned over the video to police, who questioned and arrested Nicaj on Feb. 9, 2012, for sex acts against the 1-year-old dog committed the day before.

Nicaj, who wore a blue-striped gray sweater and blue jeans Tuesday in Westchester County Court, spoke little in court before his sentence, only telling Warhit that he had nothing to say.  Steven Davidson, a lawyer for Nicaj, indicated after the proceedings that he might appeal the sentence, calling it unfair.  "We'll do everything we can to protect his interests," Davidson said, adding that Nicaj was doing well under the circumstances, "other than what his family is going through."...

Nicaj, a 15-year resident of Rye, worked at the apartment complex for six years before his arrest, and Kachalsky said that the super seemed like a normal guy until one day, a few weeks before Kachalsky had set up the cameras, when the two had an odd run-in outside Kachalsky's apartment.   "He said he had stopped by to check the gas," Kachalsky said, even though the gas had been on for some time.

Finally, Kachalsky set up three cameras, which provided indisputable evidence — "a naked man, in your apartment, having sex with your dog," Kachalsky said.  "I was wondering why someone would keep coming in here," Kachalsky said. "I never noticed anything to make me think."

A subsequent examination of Gunner by a veterinarian revealed no permanent physical damage, Kachalsky said, and the vet even expressed surprise that the soon-to-be 2-year-old pup could still interact normally with men.  The dog had always eagerly greeted visitors at the door, Kachalsky said, and still does, but on the video, with Nicaj, Gunner was abnormally passive.  "Gunner just sat on the couch," Kachalsky said.  "He did not get up."

Now, Kachalsky said, Gunner is mostly back to his old self.  He turns 2 years old Jan. 25. "Anytime anyone comes in, he's all over 'em," Kachalsky said.  "He's a terrific dog."

Given the apparent happy ending for the victims of this crime, I am not sure whether to encourage off-color jokes about this case or to engage in serious analysis of the prosecution of this peculiar puppy rapist.  Thus, I pose this dilemma to readers:

January 16, 2013 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Friday, January 11, 2013

Lots of new and notable for criminal justice fans in latest SCOTUS cert grants

This time of year, working late on a Friday can sometimes get rewarded with Supreme Court news after its usual Friday conferences: this week brings a Friday afternoon SCOTUS order list with six new cert grants. And, as Lyle Denniston detailed in this new post at SCOTUSblog, half of the grants include cases with notable criminal justice concerns:

The Supreme Court agreed on Friday to decide a major case on the right to remain silent — a case testing whether that right exists for an individual who has not been arrested but is interviewed by police, and was not given Miranda warnings, when that silence was used to help prove guilt at a trial.  That case — Salinas v. Texas (docket 12-246) — was one of six new cases accepted for review.  (The order list is here.)...

Here, in brief, are the other new cases and the issues at stake [from the criminal justice part of the SCOTUS world]:...

** Sekhar v. United States (12-357) — whether the federal anti-extortion act applies to a private individual’s use of a threat in order to get a government authority to withdraw a recommendation that would be adverse to that private individual’s interest in a pension fund.  The issue is whether such a recommendation qualifies as “property” under the Hobbs Act, which makes it a crime to obtain property by threats.

** United States v. Kebodeaux (12-418) — Congress’s authority in 2006 to make it a federal crime for an individual convicted years before of a sex crime to fail to register, after the individual had long since completed a sentence.

Based on this helpful summary, it looks like the new sex offender case, US v. Kebodeaux, should be of greatest interest to sentencing fans. But all criminal cases on the SCOTUS docket, of course, can end up having a sentencing spin or impact.

January 11, 2013 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, January 08, 2013

Intriguing New Yorker article on child porn, sex offenders and civil commitment

The latest New Yorker issue has this interesting article headlined "The Science of Sex Abuse: Is it right to imprison people for heinous crimes they have not yet committed?". The lengthy article, which rewards taking to time to read it, give particular attention to one particular sex offender's experience with child pornography and federal civil commitment procedures.  Here is an excerpt:

John pleaded guilty to possessing child pornography and to using the Internet to persuade a minor to have sex, and was sentenced to fifty-three months in federal prison — a relatively light sentence by today’s standards.  In the past fifteen years, sentences for possession or distribution of child pornography — a federal crime, since images cross state lines — have increased in length by more than five hundred per cent.  The average sentence is now a hundred and nineteen months, which is about the same as the average punishment for a physical sex crime.

Child pornography didn’t become a priority for federal law enforcement until the mid-nineties, when the Internet, offering a fun-house reflection of the spectrum of human sexuality, exposed a previously invisible population of pedophiles.  Chat rooms have spawned an underground subculture in which social status is based on comprehensive libraries of images.  Many users consider themselves “collectors,” trading pictures until they assemble sets that feature certain children, stars on the Internet, being sexually abused over time.

In a study of child pornography, the historian Philip Jenkins, of Penn State, found that chat rooms foster a kind of “bandit culture.” Self-described “Loli fans” see themselves as part of a subversive fraternity, unified by the pursuit of forbidden pleasures.  There is a hierarchy of users: newbies, lurkers, traders, and, at the top, the pornographers themselves—“kings of the rooms,” as John told me.  He said that the most sought-after images were new and made in America, and showed interracial couplings.  The more taboos broken, the better.  Members reinforced one another’s desires, engaging in communal rationalization. “We’d pull at evidence from the dawn of photography to prove that child sexuality was once acceptable,” John said.  “Then we could say, ‘See, it’s society — not me!’ ”

January 8, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (19) | TrackBack

Saturday, January 05, 2013

District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal

While I was traveling to New Orleans yesterday, back in my hometown a federal district court judge continued to make news in his second effort at sentencing a elderly federal defendant in a child pornography downloading case.  This local story, headlined "Judge blasts sentencing guidelines: Man's original punishment tossed on appeal," provides the notable details:

A federal judge in Columbus criticized sentencing guidelines for child-pornography offenses yesterday as he imposed a stricter sentence on a Mount Vernon man whose original sentence was rejected by an appeals court.

U.S. District Judge James L. Graham said he “continues to have significant concerns about the helpfulness of those guidelines.” He made his comments during a resentencing hearing for Richard Bistline, 70, who pleaded guilty in April 2009 to one count of possessing child pornography. Federal sentencing guidelines recommended a sentence of 63 to 78 months.

Graham sentenced Bistline in January 2010 to one day in prison and 10 years of supervised probation. Federal prosecutors appealed the sentence, which the 6th U.S. District Court of Appeals overturned in January 2012, saying it “does not remotely meet the criteria that Congress laid out” for criminal sentencing.

Graham imposed the same sentence yesterday but ruled that Bistline must be confined to his Knox County home for the first three years of probation. He credited Bistline with the one day he served in prison, three years served on probation and nine months of home confinement that he served while awaiting his original sentence.

Assistant U.S. Attorney Deborah Solove had requested a five-year prison sentence, followed by five years of probation. She objected to the new sentence, saying it was “not reasonable.”

The judge said he was guided by appeals-court rulings that upheld sentences in similar child-pornography cases that included one day of prison and at least one year of home confinement. He cited statistics from the Federal Bureau of Prisons showing that federal judges across the country impose sentences below those recommended in the sentencing guidelines in more than half of child-pornography cases....

Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer uncovered 305 images and 56 videos of children posing naked or involved in sex acts with adults....

In the three years since his conviction, Bistline has complied with the terms of probation, successfully completed a one-year sex-offender treatment program, had no access to computers and understands the harm caused to the victims of child pornography, Graham said.  Defense attorney Jonathan Tyack told the judge that the past three years “have shown that (Bistline) was worthy of your original sentence.” 

Graham also said he was influenced by concerns about Bistline’s age and deteriorating health.  According to medical records presented to the court, Bistline has had two strokes and suffered a heart attack a year ago. He also cares for his wife, who has cancer. Sending him to prison for five years “would be a life sentence, or more accurately a death sentence,” the judge said.

It will be very interesting to see if federal prosecutors seek to appeal this sentencing yet again to the Sixth Circuit.  If they do, I would set the very early "betting line" on reversal at 50/50:  some judges on the Sixth Circuit surely will be troubled that Judge Graham imposed nearly the same sentence even after his first sentence was reversed as unreasonable; but some judges may be moved by the additional reasons Judge Graham gave upon resentencing for not changing the sentence dramatically.

Prior related post:

January 5, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, December 20, 2012

Three decades and huge (record?) restitution sentence in federal child porn case from Texas

A helpful reader alerted me to what seems like a record-setting sentence handed down yesterday in a notable federal child porn prosecution out of Texas.  This local article about the sentencing provides the details:

Misty, a victim of child abuse that began when she was 4 years old, wrote that there is another “little me” being seen on the Internet by child pornography abusers.  Prosecutor V. LaTawn Warsaw read the young woman’s victim impact statement during the sentencing of Robert Hedrick, 61, the former president of Pan American Airways, who was convicted in May of five counts relating to child pornography.

U.S. District Judge Andrew S. Hanen sentenced Hedrick to 30 years in prison and ordered him to pay more than $5 million in restitution to known victims of child pornography whose images of abuse were found on Hedrick’s computer....

The government had asked for a 90-year sentence, but Hanen said because of Hedrick’s age a 30-year sentence was appropriate....

Investigators identified 99 known series of child pornography, along with 549 known images of child victims on Hedrick’s computer — just a fraction of the more than 2,400 images and 18 videos of child pornography it held.  Many of the children in the images are unidentified, Homeland Security Investigations Agent Joseph Baker testified....

Hedrick maintained his innocence.  “I can’t ask the court for anything.  I was framed.  I didn’t do what I was charged and convicted of,” he said, adding that he can’t say he is sorry or show remorse for something he didn’t do. Hedrick plans to appeal....

During the trial, however, evidence showed that Hedrick shared 136 images of adult and child pornography with detectives who were posing as 13- and 14-year-old girls.  According to testimony during the trial, Hedrick contacted the undercover investigators in Louisiana and Wisconsin through Yahoo instant messenger and email more than 20 times.

He also was convicted of asking the agents to provide him with images of themselves in sexually explicit sex acts.  The government introduced a web cam video of Hedrick masturbating for an undercover detective who identified herself as a 14-year-old girl from Louisiana....

Here is a breakdown of the victims to whom Robert L. Hedrick was ordered to pay more than $5 million in restitution....

  • $3,388,417 to the victim of the Misty series;
  • $1,145,300 to the victim of the Jan-Feb series;
  • $803,924 to the victim of the Vicky series;
  • $68,821 to the victim of the Cindy series.

Much can be said, of course, about the imposition of 30 years' in federal prison for a man in his 60s for what he did on the internet.  (Recall that now-infamous child molester Jerry Sandusky got a state sentence of 30-60 years.)  I find even more noteworthy that federal prosecutors could, with a straight face and as officers of the court, assert in this sentencing proceeding that they believed that only a 90-year federal prison term(!) was "sufficient but not greater than necessary" to serve the purposes of punishment set forth by Congress in 18 USC 3553(a).

In addition, the restitution amount imposed here is higher than I can recall seeing in any other child pornography case and thus may set a record for this kind of prosecution.  Moreover, unlike in many other child porn downloading cases, it seems possible that this defendant could pay some or perhaps all of this huge restitution amount. This reality not only raises the stakes for this defendant's planned appeal, but also potentially impacts whether and how the victims in this case will want or need to seek additional restitution awards from other child porn downloaders in future federal prosecutions.

December 20, 2012 in Booker in district courts, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Monday, December 10, 2012

Distinguishing Padilla, Pennsylvania Supreme Court finds no Sixth Amendment problem with lack of pension plea advice

An interesting case involving a plea that led to the loss of a pension for a school teacher has now led to an interesting set of opinions from the Pennsylvania Supreme Court in Commonwealth v. Abraham, No. 36 WAP 2010 (Pa. Dec. 10, 2012) (links to majority opinion, concurrence one and two, and dissent).  Here is the set up via the start of the majority opinion:

Joseph Abraham was a high school teacher in the Pittsburgh public school system. In 2008, one of his students alleged he offered her $300 to have sex with him and touched her buttocks; she further stated he gave her one of his business cards and wrote his private cell phone number on it.  After these allegations surfaced, appellee, who was 67 years old, retired from teaching and began receiving pension payments of $1,500 per month.  Shortly after appellee retired, he was charged for the above incident. Pursuant to a negotiated agreement, appellee pled guilty to corruption of a minor and indecent assault of a person less than 16 years of age.  He was sentenced to probation; no direct appeal was filed.

Because the crime of indecent assault of a person less than 16 years of age is one of the enumerated offenses in the Public Employee Pension Forfeiture Act (PEPFA), 43 P.S. §§ 1311-1315, appellee forfeited his pension when he pled guilty to this charge.  He filed a motion to withdraw his plea nunc pro tunc, alleging he was not informed of his right to seek withdrawal of his plea or of the possible sentences he faced. The trial court denied the motion.

Appellee filed a timely PCRA petition alleging plea counsel was ineffective for failing to inform him he would forfeit his pension upon pleading guilty.  The PCRA court, after giving the required notice pursuant to Pa.R.Crim.P. 907(1), dismissed the petition without a hearing. In its Pa.R.A.P. 1925(a) opinion, the PCRA court stated the loss of appellee’s pension was an issue collateral to the plea; thus, under Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 1989), plea counsel’s failure to explain this consequence to appellee was not relevant to whether his plea was knowing and voluntary.  Accordingly, the PCRA court held counsel was not ineffective.

On appeal, the Superior Court reversed, holding a recent United States Supreme Court decision, Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), abrogated Frometa, which held deportation was collateral consequence of a guilty plea and therefore did not need to be explained to the defendant.  The Superior Court noted Padilla, which also dealt with deportation following entry of a guilty plea, held such consequences were so intimately connected with the criminal process that a direct versus collateral consequences analysis was ill suited to evaluate an ineffectiveness claim arising in this context.  Commonwealth v. Abraham, 996 A.2d 1090, 1092 (Pa. Super. 2010)....

We granted the Commonwealth’s Petition for Allowance of Appeal to determine:

(1) Whether, in light of Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473 (2010), the distinction in Pennsylvania between direct and collateral consequences to define the scope of constitutionally “reasonable and professional assistance” required under Strickland v. Washington, 486 U.S. 668 (1984) is appropriate?

(2) If so, whether the forfeiture of a pension that stems from a public school teacher’s negotiated plea to crimes committed in the scope of his employment is a collateral consequence of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise?

The various opinions reach various in Abraham reach various conclusions on these questions, but here is the heart of the analysis of the majority:

Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation...

Our assessment of the above factors leads us to conclude PEPFA’s pension forfeiture provisions are not so punitive in force or effect as to negate the legislative intent that it be a civil, remedial provision. PEPFA is not punitive, and is thus a collateral consequence of appellee’s guilty plea.

Because counsel cannot be deemed ineffective for failing to advise a defendant regarding the collateral consequences of a plea, appellee’s ineffectiveness claim fails. Therefore, we reverse the order of the Superior Court granting appellee a PCRA hearing on the issue of prejudice, and we remand for reinstatement of the PCRA court’s order denying appellee relief.

December 10, 2012 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, December 07, 2012

Just who decides whether serious child porn case is in state or federal system?

I kind of know the answer to the question in the title of this post (as explained below), but this is still the inquisitive reaction I often have after reading about a state child porn sentencing decision like this one reported today out of Pennsylvania:

Calling him a danger to the community who showed no remorse, a Northampton County judge handed down a state prison sentence Friday to a Nazareth man who had child pornography and sent inappropriate text messages to a 12-year-old girl in which he said he wanted to make her feel "warm and cozy."

Christopher M. Rothrock, 46, was sentenced to 21 months to 7 years in prison by county Judge Stephen Baratta. In handing down his sentence, Baratta said he would be "afraid for the community" unless Rothrock served time in state prison.

Rothrock was reported to police in 2011 by the girl's parents.  Police said they found 25 texts from Rothrock to the girl, saying he wanted to massage her and asking for photos of her exposed stomach, court records state. Police said they also found thousands of child pornography images on Rothrock's computer.

In September, Rothrock pleaded guilty to five counts of possessing child pornography and one count of criminal solicitation for the text messages he sent to the girl. Northampton County Assistant District Attorney Patricia Broscius testified Friday that the victim and her mother are "extremely hurt, extremely angry" by Rothrock's actions. "The bottom line is he's dangerous and he needs intensive treatment," Broscius said. "He had no remorse, no insight, no empathy for what happened."

In a pre-sentence report read aloud Friday by Baratta, Rothrock said he had been viewing child pornography for 20 years and didn't believe it was a crime unless he was selling or distributing the images. He also told authorities he didn't believe pornographic images of children over the age 10 were considered child pornography.  Baratta noted that Rothrock stopped going to sex offender treatments after Rothrock said he could no longer afford to pay for therapy.

Though not perfectly clear from this story, it appears that the defendant here (1) may have already had a conviction of some sort that got him into sex offender treatment, and (2) had sent numerous sexual texts to a 12-year-old, and (3) had a massive and long-standing collection of child pornography.  Add up these facts in the federal system, and the defendant here would likely be looking at decades in the federal prison system.  But in state court this guy, deemed by the sentencing judge as dangerous and with no remorse, could be free in less than two years.

My understanding is that state and federal investigative authorities and prosecutors are ultimately the persons who decide whether and when a case will be brought in federal or state court when both jurisdictions have authority.  But, as highlighted by this story (and so many others in this area), the sentencing consequences of child porn crimes will often depend a lot more on this (hidden and unreviewable) state/federal prosecutorial decision than any other facts or factors.

December 7, 2012 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, December 06, 2012

Fourth Circuit rejects feds' effort to commit "sexually dangerous person" under AWA

The Fourth Circuit has a notable sex offender civil committment ruling today in US v. Caporale, No. 12-6832 (4th Cir. Dec. 6, 2012) (available here).  Here is how it gets started:

The government appeals the judgment of the district court directing that Patrick Caporale be freed from the custody of the Bureau of Prisons and granted supervised release. Caporale finished serving his prison sentence for child molestation in 2008, but he has remained incarcerated while the government seeks to have him declared a "sexually dangerous person" pursuant to the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act"), Pub. L. No. 109-248, 120 Stat. 587, as specifically set forth in 18 U.S.C. § 4248.

A sexually dangerous person under the Walsh Act means one "who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." 18 U.S.C. § 4247(a)(5).  A person is sexually dangerous to others insofar as he or she "suffers from a serious mental illness, abnormality, or disorder," and, as a result, "would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(6).  The parties have never disputed that, as evidenced by his several convictions, discussed infra, Caporale satisfies the first, prior-conduct element of § 4247(a)(5) by having engaged in child molestation.

Following an evidentiary hearing whose scope was thereby limited to the second element of § 4247(a)(5), the district court ruled that, as a matter of law, the government had not proved that Caporale suffers from a serious mental illness, abnormality, or disorder.  The court perceived in the alternative that even if Caporale were so afflicted, his commitment was not required because the government had also failed to sufficiently show that Caporale will experience serious difficulty in refraining from sexually violent conduct or child molestation if released.

We conclude that, contrary to the district court’s legal determination and as established by the evidence, Caporale indeed suffers from a qualifying mental impairment. We nevertheless affirm the judgment below, discerning no clear error in the court’s alternative rationale that the government fell short of carrying its burden to demonstrate a relative likelihood that Caporale will reoffend.

December 6, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Sunday, December 02, 2012

State court strikes down Orange County prohibition on sex offender visits to parks and beaches

As reported in this new Los Angeles Times article, a "controversial Orange County sex offender law that bans some people from visiting parks and beaches has been ruled illegal by a panel of Superior Court judges, who have asked the state appeals court to now review the get-tough rule."  Here is more about the ruling and its impact:

The panel reached the decision after overturning the conviction of a registered sex offender who was ordered to serve 100 days in jail after he was caught attending a Cinco de Mayo party at Mile Square Park in Fountain Valley.

The Orange County district attorney’s office, which has pushed cities across the county to adopt the sex offender ban, said it would continue to enforce the law.  “I believe that protecting children from sex offenders is one of the highest priorities in law enforcement,” Dist. Atty. Tony Rackauckas said in a statement.

But the ruling has drawn immediate fallout. Sheriff Sandra Hutchens has asked her department to stop enforcing the law, and Lake Forest, one of the many cities that adopted the rule, is considering repealing its ordinance.

Nearly half the 34 cities in Orange County have adopted the law, and of those, almost half are now being sued.  To persuade cities to adopt the law, the district attorney's office has taken a forceful approach — sending ranking prosecutors and administrators to City Council meetings to talk with municipal leaders.

Orange County appears to be the lone county in the state to adopt a law banning all registered sex offenders — even those who haven't been convicted of a crime against children — from going to a county beach or spending time in a county park.  And while registered sex offenders can apply for an exemption for work or family gatherings, few have been approved.

In its Nov. 15 decision, the Appellate Division of Orange County Superior Court ruled that the county ordinance is unlawful because the state Legislature is the only body that should be enacting restrictions on sex offenders.  “Such a patchwork of local ordinances poses tremendous risk to the offender who may not be aware of each regulation in each city, or indeed even know the precise location of city borders,” the decision read.

December 2, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Tuesday, November 27, 2012

Congress passes bill to double statutory maximum for child porn possession

Thanks to a helpful reader, I just learned that late yesterday Congress passed a bill to increase the statutory maximum for child porn possession offenses from 10 years to 20 years.  Especially because child porn receipt already has a stat max of 20 years and because federal prosecutors often can (and often do) charge multiple counts of possession to expose a defendant to more than 10 years imprisonment under current law, I was not aware that anyone directly involved in federal child porn cases thought this stat max needed to be raised.  But, as this local report on the legislation highlights, the increase was part of a broader effort to give authorities even more weapons to go after child porn offenders:

A bill designed to protect children from sexual predators has cleared Congress and is headed to the White House to be signed into law. “With President Obama’s signature, this law will help to rescue the thousands of children suffering from unthinkable abuse,” said Congresswoman Debbie Wasserman Schultz, a Democrat from Weston, who sponsored the bill along with House Judiciary Chairman Lamar Smith, a Texas Republican.

The bill’s passage is one sign that Congress can still get something done, especially when leaders from each party push a non-controversial measure. The bill increases the maximum penalty from 10 years in prison to 20 years for child pornography offenses that involve pre-pubescent children, or those under age 12.

The bill allows a federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated, and it imposes criminal penalties for violating a protective order. It gives U.S. Marshals limited subpoena authority to locate and apprehend fugitive sex offenders. The Child Protection Act also reauthorizes for five years the Internet Crimes Against Children Task Forces, a national network of investigators who have arrested more than 30,000 individuals involved in child exploitation since 1998, Wasserman Schultz’ office reported.

The Senate approved the legislation on Monday night by unanimous consent. The House passed it by voice vote in August. “This bill ensures that the spread of child pornography online is addressed aggressively and quickly,” Wasserman Schultz said, “and ensures that investigators have every available resource to track down predators and protect our children.”

November 27, 2012 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, November 14, 2012

Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issues

The Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images.  Here is the final paragraph from the lengthy unanimous panel opinion:

To summarize: The defendant’s prison sentence is affirmed.  The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases.  The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images.  The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.

November 14, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, November 07, 2012

California voters approve new sex offender law, parts of which get swiftly blocked by federal judge

I have not closely followed the particulars of Proposition 35 in California, a human trafficking ballot initiative which generated limited debate or controversy before election day.  But, as reported in this new piece from Wired, the initiative received overwhleming support yesterday and today was partially block by a federal judge.  Here are the details:

Immediately following the passage of a California proposition that would dramatically curtail the online, First Amendment rights of registered sex offenders, two civil rights groups filed a lawsuit to block parts of the overwhelmingly approved measure.

Proposition 35, which passed with 81 percent of the vote Tuesday, would require that anyone who is a registered sex offender — including people with misdemeanor offenses such as indecent exposure and whose offenses were not related to activity on the internet — would have to turn over to law enforcement a list of all identifiers they use online as well as a list of service providers they use.

The Californians Against Sexual Exploitation Act would force sex offenders to fork over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites or at online forums and in internet chat rooms.

The American Civil Liberties Union and the Electronic Frontier Foundation, which filed their suit (.pdf) on behalf of two registered sex offenders, say that although the measure is vaguely worded, in practice it likely means that registered sex offenders would have to provide user and screen names that they use for participation in online political discussion groups, forums about medical conditions, and even the comment sections of online newspapers and blogs....

The lawsuit, filed in San Francisco federal court, is demanding that a judge immediately block the measure’s internet-reporting provisions.... Michael Risher, an ACLU attorney, said Californians should be concerned that even though the bill only affects registered sex offenders now, the law creates a slippery slope for the same requirements to be applied to others.

He points, for example, to a California DNA-collection law that has expanded dramatically beyond the people it first targeted. Initially, the law required only those convicted of sex offenses and serious felonies to provide authorities with a DNA sample to be included in a state and federal database. But in 2004, this expanded to anyone convicted of a felony, and in 2009, to anyone simply arrested for a felony....

The measure would currently affect some 73,000 sex offenders registered in California, but the law also requires those convicted of human trafficking to register as sex offenders, thus widening the pool of people affected.

UPDATE: Citing First Amendment concerns, U.S. District Judge Thelton Henderson in San Francisco agreed with the plaintiffs, and late Wednesday tentatively blocked enforcement of the measure (.pdf) pending further litigation.

November 7, 2012 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, October 31, 2012

Split federal court ruling on local Halloween sex offender ordinance in California

10080121_E_HALLOWEEN_0824As reported in this local article, headlined "Judge temporarily blocks part of Simi Valley Halloween sex offender law," a notable constitutional lawsuit resulted in a split outcome in California federal court. Here are the details:

A federal judge Monday temporarily blocked enforcement of a key provision of Simi Valley's new Halloween sex offender law but left the rest of the ordinance intact. U.S. District Judge Percy Anderson's ruling came days before the holiday on Wednesday.

Anderson temporarily blocked the city from requiring its several dozen convicted child sex offenders listed on the Megan's Law website to post signs on their front doors on Halloween saying: "No candy or treats at this residence."

But Anderson let stand requirements that the offenders refrain from opening their doors to trick-or-treating children and decorating the outside of their homes or front lawns with Halloween ornaments. The convicts also must turn off outdoor lighting on their properties from 5 p.m. to midnight Wednesday.

Attorney Janice Bellucci, who last month filed a lawsuit saying the law was unconstitutional, said she was pleased with the ruling even though she had sought to have enforcement of the entire ordinance temporarily blocked pending the outcome of the lawsuit.

Simi Valley City Attorney Marjorie Baxter said the ruling was "a big victory on the majority of the ordinance." The Simi Valley City Council on Sept. 10 enacted the law — the only one of its kind in Ventura County — to try to prevent sex offenders from having contact with trick-or-treating children. It was championed by Mayor Bob Huber, a lawyer who is seeking re-election Nov. 6.

Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit Sept. 28 on behalf of five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. It says the law violates the First and 14th Amendments of the Constitution because it "suppresses and unduly chills protected speech and expression."

Private attorneys representing the city in the lawsuit disagree. "Convicted child molesters have no constitutionally protected right to hand out candy at Halloween," they said in court papers. "Children, on the other hand, do have a constitutionally protected right to be safe from sexual assault."

I find intriguing the city's assertion that children have a "constitutionally protected right to be safe from sexual assault," in part because taking that claim seriously could subject the city to liability if and whenever the city failed to keep children safe from sexual assault in other settings.

Recent related posts:

October 31, 2012 in Collateral consequences, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Saturday, October 27, 2012

Is justice delayed really justice denied before federal sentencing for child porn professor?

The question in the title of this post is prompted by this local federal sentencing story, which is headlined "Vanderbilt professor's sentencing in child porn case delayed again: Two years after his guilty plea, case continued for an eighth time."  Here are the details of this intriguing sentencing story:

A Vanderbilt University sociology professor slated to be sentenced Friday for a child pornography conviction had his case continued for an eighth time while he tried to receive a penalty below the federal sentencing guidelines.  James Lang, 68, is on leave from Vanderbilt, where he has held a position since 1974.  He was charged in 2008 and entered a guilty plea on Sept. 17, 2010.

The government answered his motion for reduced sentencing with a 15-page response in opposition to a variance from sentencing guidelines.  The response was received by Lang’s attorney Thursday afternoon and he said he need more time to review it.  U.S. District Court Chief Judge William J. Haynes Jr. agreed but did not reschedule the sentencing.

A previous continuance was filed to accommodate Lang with moving plans, another because of a death in his attorney’s family, and others for preparation purposes.  The initial sentencing date was set for Dec. 17, 2010.

Lang admitted to looking at child pornography in his office the morning he was interviewed by police in Garland Hall at Vanderbilt, according to the criminal complaint. He also said that he saw no problem with viewing explicit images of children “enjoying themselves” and that he had been viewing such images for many years.

After he and his wife took the computer to have a virus and spyware inspection, thumbnail images of what appeared to be children under the age of 8 caused the owner of a computer repair service to report Lang to local police, according to court documents.  More than 5 gigabytes of data with more than 7,000 pornographic images, including “children in sexual positions,” were initially found on Lang’s computer, which was Vanderbilt property. Lang pleaded guilty to possessing 233 images and 13 videos of child pornography.

Several letters of support from Vanderbilt professors and other colleagues were submitted to the court, and he entered a 12-step program while awaiting sentencing. Among his many sociologically driven projects, Lang served as a Vista Volunteer at Southside Settlement House in Columbus, Ohio, and worked as a project director for Crossroads Africa in Gambia, according to the Vanderbilt website.

Lang is under home detention as part of his conditions of release and may face up to 10 years in prison upon sentencing.

As a substantive matter, this case is yet another interesting and challenging child porn downloading sentencing in which lots of different arguments could be presented to make lots of different claims about what sentence here would be "sufficient but not greater than necessary" to achieve congressional sentencing purposes set forth in 3553(a)(2). But as the question in the title of this post spotlights, this case is also intriguing (and controversial?) because of how much time has elapsed between charges, conviction and sentencing.

I know initial federal sentencing dates often get delayed and that a few sentencing continuances are not uncommon.  But I cannot recall hearing of another case in which sentencing has been delayed eight times (especially when a defendant is free on bail during this extended period).  In addition, because of the defendant's history and characteristics and post-charge behaviors, he may during this extended pre-sentencing period be uniquely able to build stronger arguments for a departure or variance based on his advancing age or his (declining?) health or his (now lengthy) post-offense rehabilitation and actions.

I would be especially interested in hearing from experienced federal practitioners about whether this case is really as unusual as it seems or if, in fact, this kind of lengthy pre-sentencing period is not that uncommon.

October 27, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

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