Saturday, September 07, 2013
Legal twists and turns continue in controversial rape sentencing case from MontanaAs reported in this local article, there were a number of notable court developments on Friday in the Montana child rape sentencing case that has garnered national attention. Here are the basics:
Recent related posts:
The Billings judge who drew local and national condemnation for sentencing a former Senior High teacher to 30 days in prison for raping a 14-year-old student canceled a second sentencing hearing on Friday after the Montana Supreme Court intervened in the case.
But District Judge G. Todd Baugh did address an audience of mostly media representatives for about 10 minutes, explaining the legal and procedural history of the Stacey Rambold rape case that has grabbed headlines across the country for the past two weeks.
Less than an hour before Baugh stepped into the courtroom, the Montana Supreme Court issued an order canceling the hearing, telling Baugh that he could not legally change Rambold's sentence as he intended. "We conclude that the stated intent of the District Court to alter the initially imposed oral sentence in today's scheduled hearing is unlawful and that proceeding should be arrested," the order stated.....
The hearing Baugh wanted to hold in order to change Rambold's sentence was opposed by both the Yellowstone County Attorney's Office and Rambold's defense attorney, who argued that Baugh did not have the authority to change the sentence after announcing it in court last week. In its order, the Supreme Court also said it "takes no position on the legality of the imposed sentence, and will address the parties' arguments in that regard on appeal."
Attorney General Tim Fox released a statement later Friday that his office would proceed with the appeal, which was filed on Tuesday. "While it's good that Judge Baugh recognizes that his August 26 sentence of Stacey Rambold is contrary to the law, today the state Supreme Court affirmed that Judge Baugh has no authority to amend the sentence unless ordered to do so by the Supreme Court," Fox said.
Though he did not impose a new sentence, Baugh went ahead with the unusual hearing. The hearing began 1:40 p.m., and Baugh announced that he had decided on Thursday, before the Supreme Court intervened, to cancel the hearing he intended to hold aimed at re-sentencing Rambold....
A reporter from the New York Times and a crew from CNN were among the media representatives at the hearing, which was held on the record with a court reporter and court clerk present. Baugh told the gathering that he had also on Thursday signed a written judgment altering the sentence he imposed orally against Rambold on Aug. 26. The judge said the new sentence was 15 years in prison, with all but two years suspended, which he said is the minimum legal sentence in the case.
Less than two weeks ago, Baugh sentenced the 54-year-old Rambold to 15 years in prison, with all but 31 days suspended and credit for one day served. After reviewing the Supreme Court order, Baugh said, he put a note in the file withdrawing that written judgment and signed a new judgment reflecting his original sentence.
Baugh said the confusion over the mandatory minimum sentence in the case "shouldn't have had to be addressed at all." The confusion could have been avoided if "I had been more alert" or if prosecutors had addressed the issue at Rambold's Aug. 26 sentencing hearing. At that hearing, the prosecution argued that Rambold should receive a sentence of 20 years in prison, with 10 years suspended.
Baugh instead imposed the sentence requested by Rambold's defense attorney, Jay Lansing. The sentence caused a national outrage, not only for the prison term imposed on the former teacher, but for the words the judge used to explain the sentence. Baugh said the victim, Cherice Moralez, who committed suicide in 2010, was "older than her chronological age" and was in some control of the relationship with Rambold.
The judge apologized for the statements two days later, but critics have continued to call for his resignation. Baugh explained on Friday that the case began with the charges filed in 2008, but resulted in an unusual deferred prosecution agreement in July 2010 after Moralez's death.... Baugh said the sentencing hearing on Aug. 26 happened almost six years after the crimes. Rambold was found to be treatable in the community, and had committed no new crimes, he said.
"It seemed to me a suspended sentence was the most appropriate," Baugh said. The case will now proceed to the appeal process, the judge said.
- "Protesters Demand Montana Judge Resign Over Rape Sentencing"
- New hearing ordered by Montana judge in case involving controversial 30-day child rape sentence
Tuesday, September 03, 2013
New hearing ordered by Montana judge in case involving controversial 30-day child rape sentenceAs reported in this local article, headlined "Judge orders new hearing on controversial rape sentencing," a high-profile state sentencing case from Montana took another notable twist this afternoon. Here are the details:
Saying the sentence he imposed on a former Billings teacher for the rape of a student may be illegal, Yellowstone County District Court Judge G. Todd Baugh has ordered a new hearing.
In an order filed Tuesday, Baugh set a hearing for Friday at 1:30 p.m. to determine whether the sentence he imposed last week on Stacey Dean Rambold should be revised. Baugh said in the order that the mandatory minimum sentence Rambold should have received appears to be two years, not the 30-day sentence that Baugh ordered on Aug. 26.
Yellowstone County Attorney Scott Twito called Baugh’s order an "unusual occurrence." Twito has been consulting with the Montana Attorney General’s Office to determine whether to appeal the case to the state Supreme Court. "The state will review the issue and we will be prepared to be in court on Friday," Twito said in response to the judge’s new order.
Rambold, a former Senior High teacher who admitted to raping a 14-year-old female student who later committed suicide, received a sentence of 15 years in prison, with all but 31 days suspended. He was given credit for one day previously served.
The sentence, and statements made by Baugh at the hearing last week, drew international attention and calls for Baugh’s resignation.
Recent related post:
Utah (re)considering its approaches to sex offender sentencingThe Salt Lake Tribune has this notable new article about its prison population and sex offender sentencnig under the headline "Utah sex offender policy in spotlight as numbers soar: More prisoners, longer sentences but funding for treatment stays flat, triggering concerns." Here are excerpts:
A dramatic increase in the number of sex offenders incarcerated in Utah over nearly two decades is raising questions about how the state deals with such crimes and concerns about whether all inmates are able to get needed treatment before they return to their communities.
The number of sex offenders in state custody has more than doubled — to 2,194 or 31 percent of the prison population — since 1996, the last year Utah lawmakers approved an increase in treatment funding. Although Utah’s incarceration rate is significantly lower than that of other Western states and the U.S., it leads surrounding states when it comes to the percentage of prison inmates who are sex offenders.
One reason for that: Lawmakers have taken a tough stance on sex offenses, setting stiff penalties, such as a law passed in 2008 that set a 25-years-to-life penalty for child rape. “Our culture has a very strict credo, a moral sense, of what is appropriate sexually and what is not appropriate sexually,” said Rep. Eric Hutchings, R-Kearns and a member of the Criminal Justice Appropriations subcommittee. “That may be why we incarcerate a little bit more.”
The state’s approach also has historically been shaded by the view that “once a predator, always a predator” — a misconception that may finally be poised to shift with the accumulation of evidence that shows treatment works, Hutchings said. “The discussion is not over, but it’s happening in earnest,” Hutchings said. “The mind-set for a long time has been what are we going to get by putting this money into treatment. Why not focus instead on mandatory minimum sentences and keeping these people locked away.”...
The numbers reflect that philosophy of warehousing inmates. Today, more sex offenders in Utah are sent to prison rather than placed on probation, and they serve longer sentences. In 2012, for example, 92 percent of first-degree felony sex offenders went to prison, up from 72 percent in 1988. During that period, the length of time served has doubled....
Still, “The reality is we are talking about a very large group of people at the prison who are some day going to get released,” said Jonathan Ririe, a Utah psychologist who works with sex offenders in the community. And that makes investing in treatment, as well as supervision outside of prison, critical, he added....
Utah inmates convicted of first-degree felony sex offenses who were released from prison during the past five years had, on average, served 7½ years. But some serve far longer....
One Utah analysis of inmates who completed treatment showed about 20 percent returned to prison within a year, compared with 42 percent of those who did not complete treatment. In both groups, most offenders returned because of parole violations rather than because they committed new crimes.
A 2003 Bureau of Justice Statistics report found that sex offenders were less likely than non-sex offenders to be rearrested for any crime. That report also found that 5.3 percent of all sex offenders were rearrested for a sex crime within three years of being released. The percentage was even lower — 3.3 percent — for child molesters.
Ririe said it is “frustrating” that Utah’s approach has been to continually adopt more stringent sentencing guidelines that lump sex offenders together rather than adopting a system that appropriately categorizes offenders by risk factors and allows judges and the parole board a greater role in assessing them individually.
Second Circuit panel hints that SORNA might be subject to some Commerce Clause challengesA helpful reader alerted me to a notable Second Circuit panel opinion today in US v. Robbins, No. 12-3148 (2d Cir. Sept. 3, 2013) (available here), in which the court hints that federal sex offender registration laws might at some point be subject to new Commerce Clause challenges in the wake of the Supreme Court's work in the "Obamacare" cases. Here is how the opinion in Robbins gets started:
In August 2011, after traveling from New York to Nevada, defendant-appellant Nathan Robbins knowingly failed to update his registration as a sex offender, as he was required to do under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16913. He subsequently pled guilty to violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required to register under SORNA to travel in interstate commerce and knowingly fail to update his registration. Despite his plea, Robbins retained the right to challenge the constitutionality of the statutes he admitted violating, and he brings just such a challenge here.
This Court has previously held that Congress acted within its powers under the Constitution’s Commerce Clause when it enacted SORNA. See United States v. Guzman, 591 F.3d 83 (2d Cir. 2010). Since then, however, the Supreme Court has revisited and further clarified — if that is the appropriate word — the reach of Congress’s power “[t]o regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8, cl. 3; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”). Robbins invites us to revisit our holding in Guzman in light of the Supreme Court’s decision in NFIB.
We decline Robbins’ invitation not because his arguments all lack force, nor because the constitutionality of SORNA — particularly when applied within the states — is beyond question, see United States v. Kebodeaux, 570 U.S. ___, No. 12-418, slip op. at 5 (U.S. June 24, 2013) (Roberts, C.J., concurring in the judgment) (“The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.”), but because the constitutionality of SORNA as applied to Robbins remains unaffected by any limitations on Congress’s Commerce Clause power that may be found in NFIB. Still bound by the precedent set in Guzman, we therefore AFFIRM Robbins’ conviction.
Monday, September 02, 2013
"Against Juvenile Sex Offender Registration"The title of this post is the title of this notable new paper by Catherine Carpenter now available via SSRN. Here is the abstract:
Imagine if you were held accountable the rest of your life for something you did as a child?
This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives.
No matter the constitutionality of adult sex offender registration — and on that point, there is debate — this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent.
Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders.
Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.
September 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack
Friday, August 30, 2013
"Protesters Demand Montana Judge Resign Over Rape Sentencing"The title of this post is the headline of this New York Times report on the continuing controversy over what seems to be a disturbingly lenient state sentence for a child rape conviction. Here are some of the latest developments in a story that seems to have become a cause for CNN and other media outlets:
Angry that a Montana judge sentenced a former teacher who had admitted to raping a 14-year-old student to only a month in jail, several hundred people gathered outside the Yellowstone County Courthouse in Billings on Thursday, demanding that the judge resign. The victim committed suicide three years after the rape, just before her 17th birthday.
The decision by Judge G. Todd Baugh of State District Court on Monday to suspend the teacher’s 15-year prison term, combined with remarks he made about the rape victim during the proceeding, has sparked outrage in Montana and around the country, with online petitions gathering more than 30,000 signatures in a few days. During the sentencing, Judge Baugh said the victim “seemed older than her chronological age” and was “as much in control of the situation” as the teacher.
The death of the victim, Cherice Morales, who was a student of Stacey Dean Rambold, contributed to delays in the prosecution of the case, which was originally filed in 2008.
Judge Baugh later apologized for his remarks, telling The Billings Gazette: “I don’t know what I was thinking or trying to say. It was just stupid and wrong.” He defended the one-month sentence, however, and in doing so made a remark that further angered many protesters. “Obviously, a 14-year-old can’t consent,” he said, but then added: “I think that people have in mind that this was some violent, forcible, horrible rape. It was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”
Marian Bradley, who heads the Montana chapter of the National Organization for Women and helped organize the rally on Thursday, said that the judge needed to step aside and that state lawmakers needed to consider mandatory sentencing for convicted rapists. “It’s highly unusual to get several hundred people to show up for a protest in Billings,” said Ms. Bradley, a longtime rape crisis volunteer. “Everyone here is outraged.”...
Mr. Rambold, 54, a former technology teacher at Billings Senior High School, pleaded guilty in April to a felony count of sexual intercourse without consent. The charges were first brought in 2008, and his prosecution was deferred in 2010 after Ms. Morales’s suicide raised concerns among prosecutors that a conviction would be difficult to obtain without the victim’s testimony.
Under a three-year agreement, Mr. Rambold attended an outpatient program for sex offenders, and if he had completed it, the charges would have been dismissed. But after he violated the terms of the program last fall, prosecutors brought charges against him again earlier this year and he pleaded guilty to one count, which brought him back to court for sentencing on Monday.
Though I am troubled when folks start calling for a judge's head based on limited information about a seemingly misguided sentencing decision, it is understandable why the judge's sentencing decision here has prompted outrage given the the facts that are publically known about this case. Interestingly, as now reported in this new Billings Gazette article, "Judge G. Todd Baugh, who has drawn international criticism for sending a convicted rapist to prison for only 30 days, issued a sentencing addendum Thursday afternoon, offering a formal explanation of his decision in the case." That three-page addendum may not end the protests, in part because Judge Baugh says in this Addendum that some key facts influencing the sentencing decision that cannot be publically disclosed.
Long-time readers will not be surprised to hear me suggest that Montana lawmakers not respond to one ugly case by passing new mandatory sentencing statutes. In lots of other settings, we can and do reasonably expect and hope that appellate review will provide a means to correct very wrong trial court rulings. Intriguingly, this new CNN article reports that the local prosecutor here is considering an appeal and seems to believe that there already was a statutory provision that would have required at least a two-year prison term for the defendant here. If the sentencing decision causing outrage and protests cannot be reviewed under existing Montana law, I hope that problem becomes the focal point of any legislative reform rather than the creation of new mandatory minimum sentencing statutes.
Tuesday, August 27, 2013
"Is it fair for sex offenders to stay listed on a registry for life?"The title of this post is the headline of this recent lengthy article in the St. Louis Post-Dispatch. Here are excerpts:
On one side of the latest debate over Missouri’s sex-offender registry are people such as Daniel Ray Winfrey. In 1991, when Winfrey was 15, he and three others raped and murdered sisters Julie and Robin Kerry at the Chain of Rocks Bridge near St. Louis.
Winfrey testified against his co-defendants in exchange for a 30-year prison sentence. Though back in prison, he has been paroled twice since his conviction. At those times, he was free but still listed on the state’s sex-offender registry website. That website, Gov. Jay Nixon argues, is the only way for most neighbors and others to know of the potential danger while such offenders are among them.
“You wouldn’t want to know if one of these guys moved in next door?” Nixon asked last week. He was defending his veto of a bill that would remove from the website all offenders who, like Winfrey, were under 18 when they committed their crimes.
On the other side are people such as Ali Nemec’s fiancé. He was 17 when he was arrested for having child pornography on his computer. Now 24 and still listed on the registry website, he’s had difficulty at work, has been been turned away from housing and lives with his parents.
“We can’t go to a park, we can’t go to a mall. If there’s an event with our friends near a school, we can’t go,” said Nemec, 23, of St. Peters. “He made a mistake ... (but) he is not the boy that he was. There’s no reason to ruin him for the rest of his life.”
The registry is today’s ultimate “scarlet letter.” Long after they’ve served their time, sex offenders remain barred from parks and schools and limited in their employment and housing options. Their names and faces are posted on the Internet, easily accessible to friends and neighbors.
In Missouri, they stay listed for life, even if they were juveniles when they committed their crimes. The state Legislature passed this year a bill to change that. Nixon vetoed it, potentially setting up an emotionally charged veto fight next month.
The bill would remove from the sex-offender registry website hundreds of offenders such as Nemec’s fiancé and Winfrey, whose crimes were very different but who were both under 18 when they committed them. By one estimate, the bill would cull about 870 names from the more than 13,000 on the site, in addition to future offenders in the same situation.
Those offenders would still be listed on the registry itself, accessible to law enforcement and anyone from the public who requests the information. But the bill would allow the offenders to petition for complete removal from the registry starting five years after the end of their sentences.
“These kids have served their debt to society. They are adults now and haven’t done anything wrong since,” said Rep. Dave Hinson, R-St. Clair, a co-sponsor of the measure. He and others note that listed offenders have high unemployment rates because many employers won’t hire them. “We’re just trying to give them another shot at being productive citizens.”
Nixon, a Democrat, vetoed the bill in July, arguing that it makes no distinction between relatively minor offenders and those who used force or violence. In a news conference at St. Louis police headquarters last week, defending the veto amid the backdrop of uniformed officers, the governor warned that the measure could make Missouri a haven for sex offenders from other states who want to hide from their pasts....
In Missouri, and nationally, the issues connected to sex-offender registries — who should be on them, how long they should stay listed — have been in flux for years, with opposing interests battling to tighten or loosen the requirements.
The concept behind the lists is that because of the high rate of repeat offenses among sex offenders, the public needs to be warned of their whereabouts even after their sentences are served. Civil libertarians have long argued that this amounts to an unconstitutional open-ended punishment, but courts have generally upheld the registries....
Missouri’s system is tougher than some because once a person is on the list, he or she is on it for life, regardless of the severity of the original crime or the offender’s age at the time. Illinois, in contrast, has a lifetime tier and a 10-year tier, based on the details of the crime. People who commit crimes as juveniles have to register, but they aren’t listed on the registry’s public website....
Critics claim that the registry nets are cast so widely they often catch people who most would agree aren’t sexual threats. One commonly cited example are the so-called “Romeo and Juliet” offenders, who had consensual sex with teenage lovers, sometimes when they themselves were teenagers. Critics say those pitfalls in the system are especially ominous in Missouri, where juvenile crimes are listed for life.
August 27, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack
Saturday, August 24, 2013
Debate continues after Mizzou Gov vetoes bill to take juve sex offenders off registriesAs reported in this AP piece, headlined "Vetoed bill could affect 870 Mo. sex offenders," the Show Me state is showing all of us how a focused debate over juvenile sex offenders can play out these days. Here are the basics:
A Missouri bill removing the names of juvenile sex offenders from public registries could affect hundreds more people than originally estimated and help hide the whereabouts of some high-profile offenders, Gov. Jay Nixon said Wednesday.
The Democratic governor pointed to new figures and specific examples of sex-offenders as he traveled to St. Louis and Kansas City to try to build a case for why legislators should sustain his veto of the bill.... Republican legislative leaders have said the measure is a likely target for a veto override, noting that it passed originally with overwhelmingly support.
Under the bill, people who are younger than 18 when they commit sex offenses would no longer appear on law enforcement websites that list the home addresses and physical description of sex offenders. Adults who are currently listed because of sex offenses committed as juveniles also could be removed from the public registry five years after their convictions or release from prison.
Supporters of the bill have said the public registries leave a permanent mark on adults who may have been convicted as teenagers for consensual sexual activities with younger juveniles. They have said such people deserve a second chance outside of the public spotlight.
The bill passed the House 153-0 and the Senate 28-4 earlier this year. Nixon has said the legislation would weaken state laws and undermine public safety....
"The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to help keep their families safe, are not," Nixon said.
The governor's office distributed information about specific sex offenders who could be removed from the list if lawmakers were to override his veto. Among them is Daniel Winfrey, who was 15-years-old in April 1991, when sisters Julie and Robin Kerry were raped and killed at the Chain of Rocks Bridge over the Mississippi River in the St. Louis area. Winfrey pleaded guilty to second-degree murder and rape after agreeing to testify against several others involved in the crime.
Other offenders that the governor's office cited as likely to be removed from the public registry included men who had been convicted as juveniles of rape, sexual assault and sodomy against children who were ages 5, 6, 7 and 8.
Nixon spokesman Scott Holste said the legislation would benefit people who committed "heinous" acts. "These aren't Romeo and Juliet people we're talking about here," Holste said.
Tuesday, August 20, 2013
"North Carolina appeals court strikes social media ban for sex offenders"
The title of this post is the headline of this local press report on a notable intermediate state appeals court ruling today. Here are the details:
The full 21-page opinion in NC v. Packingham, No. 10 CRS 57148 (N.C. App Aug. 20, 2013), is available at this link.
The North Carolina Court of Appeals on Tuesday struck down North Carolina's ban on registered sex offenders using social media sites like Facebook and Twitter. The court said the ban in N.C. General Statute 14-202.5 "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify."
"The statute violates the First Amendment's guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court's judgment," wrote the court.
The ruling centered around a Durham case in which Lester Gerard Packingham appealed his felony conviction for accessing a commercial networking site last year. According to the trial records, the Durham Police Department was looking at evidence that registered sex offenders were using the websites MySpace and Facebook, and an officer recognized Packingham's photo on Facebook.
The North Carolina law says registered sex offenders may not use commercial social media sites if they know the site "permits minor children to become members or to create or maintain personal Web pages."
But in its ruling, the appeals court said the law "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal [of preventing contact with children.]"
North Carolina Attorney General Roy Cooper wanted the law but admits it may have to be rewritten, but he will try to appeal the North Carolina Supreme Court. Cooper notes that there are still laws on the books that investigators can use to charge suspects with soliciting children online. However, he believes we need a law to try to prevent child sex crimes before they happen....
If Cooper's attempt at an appeal fails, he says he will go back to the legislature to see if they can craft a new sex offender social media law that will withstand a legal challenge.
Tuesday, August 13, 2013
New Nebraska study suggests sex offender registry changes pushed by feds may do more harm than goodAs reported in this notable local piece, headlined "UNO report: Nebraska sex offender law 'founded more on public emotion than good science'," an important new study suggests that state sex offender registry laws have perhaps been made less effective as a result of reforms prodded by new federal sex offender laws. Here are highlights from the report on the report:
A newly released report questions whether public safety has improved since Nebraska adopted a state law that requires all convicted sex offenders to be listed on a public website.
The law, known as the Adam Walsh Act, was passed in 2009, but has been criticized as being too harsh on former offenders who committed minor crimes, are low risks to reoffend and have now become productive, law-abiding citizens....
On Monday, a report done by the University of Nebraska at Omaha’s Consortium for Crime and Justice Research concluded that the Adam Walsh Act “was founded more on public emotion than good science, which is its fundamental shortcoming.”
The 58-page document stated that Nebraska’s previous system of sex-offender registration, which required only that the highest risk offenders be listed publicly, “did not seem to be broken.” The report, though, stated that it could not be discerned if the previous, or new, registration system was superior in deterring repeat sex offenses.
The adoption of the Adam Walsh Act in Nebraska was controversial and spawned a lawsuit by a group of convicted sex offenders, who said it violated their constitutional rights. It was also praised for removing the subjective decision of whether an offender was at low or high risk to reoffend....
Prior to 2009, only the names and photographs of sex offenders who had committed the most serious offenses and were deemed by the patrol as most likely to reoffend were publicized on the patrol’s website. Under the old system, those who committed minor offenses and were considered a low risk were required to register with law enforcement agencies, but their information wasn’t made public.
Nebraska’s Adam Walsh Act, Legislative Bill 285, required that all sex offenders — low risk and high risk — have their photos and addresses posted on the state website, and to report to local law enforcement officials. The photos are to stay for 15 years for misdemeanor offenses, but as long as 25 years to life for more serious offenses.
The Legislature’s Judiciary Committee two years ago discussed whether to exclude low-risk offenders from the public website, but instead decided to seek more information, via the UNO report, which cost $60,000....
State Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee, said the UNO report provides better data for lawmakers on which to judge the effectiveness of sex offender registries. He said his committee may look at revamping the registration requirements of lower-risk offenders, but that overall, the report showed him that it’s not necessary to repeal the entire Adam Walsh Act. “I don’t see that changing registration laws and going back to tiering them is the answer,” Ashford said.
The senator added that the report’s data will aid his effort to reform state criminal sentences to ease the state’s chronic prison overcrowding. Treating sex offenders outside of prison must be considered, Ashford said, because among state prison inmates, sex offenders make up one of the largest categories....
Among the UNO report’s other findings:
» Recidivism rates for sex offenders were low — more than 97 percent do not reoffend — but were lower following the passage of the Adam Walsh Act. For instance, the recidivism rate for Level 2 (medium-risk) offenders was 0.5 percent after passage of the act and 2.5 percent before....
» Registries that show the addresses of offenders could provide a false sense of security because most sex offenders do not commit crimes in their own neighborhoods. Only 7 percent of such crimes were committed within a mile of an offender’s residence.
The full report, titled simply "Nebraska Sex Offender Registry Study," is available at this link.
Monday, July 29, 2013
FBI sweep leads to multiple rescues and arrests involving sexually exploited childrenAs reported in this new Washington Post piece, headlined "FBI raids in 76 cities save 105 kids forced into prostitution; 150 others arrested" the feds have been conducting a multi-day, multi-city sweep on persons involved in child prostution. Here are the basics:
Authorities rescued 105 children who were forced into prostitution and arrested 150 pimps and others in a three-day law enforcement sweep in 76 American cities, the FBI said Monday. The victims, almost all girls, range in age from 13 to 17.
The largest numbers of children rescued were in San Francisco, Detroit, Milwaukee, Denver and New Orleans. The campaign, known as Operation Cross Country, was conducted under the FBI’s Innocence Lost initiative.
“Child prostitution remains a persistent threat to children across the country,” Ron Hosko, assistant director of the bureau’s criminal investigative division, told a press conference. The FBI said the campaign has resulted in rescuing 2,700 children since 2003. The investigations and convictions of 1,350 have led to life imprisonment for 10 pimps and the seizure of more than $3.1 million in assets.
For the past decade, the FBI has been attacking the problem in partnership with a non-profit group, the National Center for Missing and Exploited Children. John Ryan, the head of the center, called the problem “an escalating threat against America’s children.”
I cannot help but wonder whether and how the many hundreds of federal prosecutions of persons guilty only of downloading child porn on their computers plays a role in the success of Operation Cross Country and the FBI’s Innocence Lost initiative. If there is evidence to indicate that the frequent prosecution and tough sentencing of persons guilty of downloading child porn in fact plays a significant role in helping the feds crack down on child sex trafficking, I would be much less trouble by how these cases often get handled. In my experiences in a few cases, however, many downloaders of child porn getting the sentencing book thrown at them had no connection with actual child sexual abuse offense and were not able to provide the feds with helpful information about anyone directly involved in such abuse.
Sunday, July 28, 2013
Is 898-year federal sentence symbolic and meaningful or senseless and misguided?The question in the title of this post is prompted by this federal sentencing story out of Texas, headlined "Victim Assaulted by Fake Producer Finds Closure in Sentencing," which was sent my way by Josh Blackman. Here are the basics:
898 years is what a Gemase Lee Simmons will now have to serve for 39 counts of various bank fraud and child pornography offenses. Simmons would tell young men and women that he had a modeling agency and as part of their "sessions" would take naked pictures of some of them.
Bianca Love, a victim, told the judge in federal court that Simmons had scammed her out of money and sex.
Jailers also informed the judge that while waiting for his sentencing Simmons had managed to get other sexual predators to perform sex acts on him. According to investigators Simmons told 2 other prisoners that it was part of a test the U.S. Attorney's Office administered. Simmons told them he would help them to pass it so they would get less time.
For a much more literary account of this case, I discovered this fascinating opinion discussing the defendant and his crimes. The opinion is authored by Chief District Judge Fred Biery (WD Texas) to explain his conclusion, after a bench trial, that Simmons was guilty of all the counts against him (and likely many more). This opinion is a must read in part because, in less than four pages, it makes reference to, inter alia, The Wizard of Oz, Catch Me if You Can, Something Wicked This Way Comes, and Dante's Inferno. In addition, in response to a quote from the defendant's trial testimony, the judge in this opinion drops a footnote which simply reads: "LOL".
Though I really enjoyed reading the opinion linked above and I can see why Chief Judge Biery was eager to throw the book at Gemase Lee Simmons, I still question the decision to impose a sentence of 898 years. (In addition, as Josh suggested to me, such an extreme sentence might give the defendant here a non-frivolous claim on appeal that his sentence is unreasonable.) I tend not to be a fan of legal fictions or of treating the imposition of hundreds of years in prison as just numbers on a page. While I suspect that a life sentence was not possible because none of the charges carried such a statutory term, I also suspect that a potent message without such a crazy number would have been sent had Chief Judge Biery imposed a terms of, say, 100 years.
That all said, the fact that Chief Judge Biery imposed a sentence of 898 years caught Josh's attention and mind, and perhaps that was part of what Chief Judge Biery hoped to achieve with this remarkable sentencing term. And if Chief Judge Biery were to write another sensational (and short) opinion to explain his lastest decision in this case, I might well come to the conclusion that the societal ends justify the sentencing means here.
Saturday, July 13, 2013
"Juveniles, Sex Offenses, and the Scope of Substantive Law"The title of this post is the title of this notable new article by Carissa Byrne Hessick and Judith M. Stinson now available via SSRN. Here is the abstract:
Substantive criminal law is an important factor in determining whether a juvenile will be tried as a juvenile or transferred to adult court. In particular, the gravity of the offense with which the juvenile is charged is a key component of most states’ discretionary waiver statutes, and it disproportionately influences judges when deciding whether to transfer juveniles. As a general matter, sex offenses are considered serious crimes. And a number of serious sex offenses are criminalized because of the victim’s age. These severe penalties reflect a policy determination on the part of legislatures that when sexual activity is illegal, either in whole or in part, because of the age of one of the participants — a category of crimes that we refer to as "age-determinative sex offenses" — participation in that activity is a serious crime.
The question we seek to answer in this Article is whether the justice system ought to distinguish between adult and juvenile offenders for these age-determinative sex offenses when assessing the seriousness or gravity of these crimes. We believe it should. In particular, this Article argues that, when the juvenile is in the same peer group as the victim — that is to say, the age difference between the victim and the offender is not large — substantive criminal law should recognize that an age-determinative sex offense is not nearly as serious as it would be if committed by an adult.
Monday, July 08, 2013
"In Opposition to the Mandatory Registration of Juvenile Sexual Offenders"The title of this post is the title of this short paper by David Katner, which is now available via SSRN. Here is the abstract:
The mandatory registration of juvenile sex offenders incorrectly assumes that the same dynamics of adult sex offenders apply to juveniles. In doing so, this group of juveniles is labeled and placed in a category that will ultimately hinder their development, rather than contribute to their rehabilitation. Accordingly, this mandated registration will have a negative effect on these individuals along with society as a whole based upon how they are perceived by others in the community and their lack of ability to contribute to the greater good.
Thursday, July 04, 2013
Missouri Gov vetoes bill to take juve sex offenders off state registryAs reported in this AP story, headlined "Nixon vetoes sex offender measure," the Governor of Missouri is apparently concerned this holiday week that a bill passed by his state's legislature will provide for too potential much freedom for juvenile sex offenders. Here are the basics:
Gov. Jay Nixon on Wednesday vetoed legislation that he said would remove sex offenders who commit their crimes as juveniles from websites that let the public know who they are, a day after he signed a measure that strengthens laws against sexual offenses.
Nixon said the vetoed measure is too broad. “It would grant this relief to juvenile sex offenders regardless of the sexual offense for which they were convicted to include forcible rape, forcible sodomy and child molestation,” said Nixon, who was state attorney general before becoming governor.
“Moreover, the bill would deprive victims of sex offenses the opportunity to be heard before an offender is removed from the very websites that are designed to protect victims and other members of the public.”...
State lawmakers return to the Capitol in September to decide whether they will try to override any vetoes.
On Tuesday, Nixon signed a criminal justice bill that includes a change to what constitutes rape. It had been defined as having sex with another person by use of “forcible compulsion,” which includes the use of a substance to physically or mentally impair another without his or her knowledge or approval. The new law broadens that to include instances in which someone is incapacitated, is incapable of consent or lacks the capacity to consent.
July 4, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, July 02, 2013
Released sex offenders in Great Britain soon to be required to take regular polygraph testsAs reported in this article from across the pond, a novel (and apparently somewhat efficacious) approach to sex offender monitoring is being expanded in part of Great Britain after a successful pilot program. The article is headlined "Lie detector tests set to be introduced to monitor sex offenders: Politicians expected to approve law allowing compulsory polygraph tests of sex offenders released into community," and here are excerpts:
MPs are expected to clear the way for the introduction of compulsory lie detector tests to monitor convicted sex offenders across England and Wales from next January.
The national rollout of US-style mandatory polygraph tests for serious sex offenders who have been released into the community after serving their prison sentence follows a successful pilot scheme. The trial was carried out from 2009-11 in two Midlands probation areas and found that offenders taking such tests were twice as likely to tell probation staff they had contacted a victim, entered an exclusion zone or otherwise breached terms of their release licence.
Continuing concerns about the reliability of the tests and misinterpretation of the results mean they still cannot be used in any court in England and Wales. But it is expected that the compulsory polygraph tests will be used to monitor the behaviour of 750 of the most serious sex offenders, all of whom have been released into the community after serving a sentence of at least 12 months in jail.
The tests involve measuring reactions to specific questions by monitoring heart rate, blood pressure, breathing and levels of perspiration to assess whether the subject is being truthful. The results will be used to determine whether they have breached the terms of their release licence or represent a risk to public safety and should be recalled to prison.
The power to introduce compulsory lie detector tests was put on the statute book six years ago in the Offender Management Act 2007. On Tuesday MPs will debate secondary legislation in the form of a statutory instrument to come into force from 6 January 2014. The House of Lords will be asked to approve it later this month.
The justice minister Jeremy Wright said: "Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.
"We recently announced the creation of a National Probation Service tasked with protecting the public from the most high-risk offenders. They will be able to call on this technology to help stop sex offenders from reoffending and leaving more innocent victims in their wake."
Hertfordshire police used the tests in a pilot scheme in 2011 to help decide whether to charge suspected sex offenders and gauge the risk they posed to the public. "Low level" sex offenders were involved in the original pilot. At least six revealed more serious offending and were found to pose a more serious risk to children than previously estimated. A further trial was ordered but at the time the Association of Chief Police Officers voiced caution about the adoption of such tests: "Polygraph techniques are complex and are by no means a single solution to solving crimes, potentially offering in certain circumstances an additional tool to structured interrogation," a spokesman said.
Polygraph testing is used in court in 19 states in America, subject to the discretion of the trial judge, but it is widely used by prosecutors, defence lawyers and law enforcement agencies across the US.
I find curious that this article speaks of "US-style mandatory polygraph tests"; I am not aware of any US jurisdiction that uses mandatory polygraph testing as part of a program of sex offender monitoring. That said, I would not be at all surprised if some jurisdictions in the US were to consider such a requirement if there is good reason to believe that such testing does a reasonable job of sorting out more (and less) dangerous released sex offenders.
Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty. For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).
July 2, 2013 in Criminal justice in the Obama Administration, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (19) | TrackBack
Friday, June 28, 2013
Oklahoma Supreme Court finds state's new sex offender registration requirements punitive and thus limited by ex post facto doctrineAs reported in this local article, headlined "Attorney says up to 3,000 registered Oklahoma sex offenders could benefit from ruling," the top court in Oklahoma handed down a major ruling this week limiting the reach of the state's sex offender registration law. Here are the basics:
[T]he court ruling said Corrections Department officials have been violating the Oklahoma Constitution by retroactively applying state sex offender laws, thereby dramatically increasing the time many convicted sex offenders must remain listed on the registry.
Rejoicing in Tuesday's ruling was convicted sex offender Brad Crawford, 58, of Oklahoma City. “It means a lot to me. It gives me freedom. It takes a monkey off my back,” said Crawford, who was convicted in 1998 in Canadian County on a charge of lewd or indecent proposals/acts to a child. “I'm tired of dealing with them and their harassment.”
Crawford lamented that being listed on the registry limits offenders from living where they want and watching their grandkids' baseball games. Registered sex offenders are not allowed to live close to schools, playgrounds or licensed child care centers....
Crawford's crime was peeking over the top of a tanning booth. He said Crawford thought he was sneaking a peek at a woman, which might have brought misdemeanor peeping Tom charges. The “woman” turned out to be a 15-year-old girl who was a day shy of her 16th birthday, so Crawford was convicted of the more severe felony charge of lewd acts with a child....
Crawford originally received a five-year suspended sentence, except for 30 days in the Canadian County jail. He also was placed on the sex offender registry for 10 years....
However, before the 10 years was over, the Oklahoma Legislature passed new laws in 2007 that created a three-tiered risk level assessment system. The law required convicted sex offenders to be placed on the sex offender registry for 15 years, 25 years, or life, depending on their assessment levels....
Jerry Massie, spokesman for the Corrections Department, said department officials are discussing the Court's ruling and expect to post something on the agency's website within the next day or two, explaining how the department will comply with the decision.
Preliminary discussions have centered on department officials reviewing the registry and removing the names of sex offenders who appear to qualify under the court's ruling. Massie said no time frame has been established for such a review, but it “might take a month or so.” At the end of the process, sex offenders who believe they were wrongfully kept on the registry could ask to have their cases reviewed, he said.
The full Oklahoma Supreme Court ruling is available at this link, and here are a few paragraphs from its closing sections:
Here we are not balancing the rights of sex offenders against the rights of their victims. We are making a determination as to whether the means chosen to protect the public have exceeded the state's valid interest in public safety and infringed on the Oklahoma constitutional prohibition against ex post facto laws.
Out of the seven Mendoza-Martinez factors we have reviewed herein, five favor a punitive effect. It is not the number that is important but the weight of these factors that leads us to our conclusion. SORA's obligations have become increasingly broad and onerous. We find there is clear proof that the effect of the retroactive application of SORA's registration is punitive and outweighs its non-punitive purpose. The retroactive extension of SORA's registration is inconsistent with the ex post facto clause in the Oklahoma Constitution.
This is not to say that Oklahoma's Sex Offender Registration Act (SORA) is unconstitutional on its face. A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants. The Oklahoma Constitution prohibits the addition of sanctions imposed on those who were already convicted before the legislation increasing sanctions and requirements of registration were enacted.
"Should child porn 'consumers' pay victim millions? Supreme Court to decide."
The title of this post is the headline of this new Christian Science Monitor piece discussing the Supreme Court's grant of certiorari yesterday in Paroline (noted here). Here is how the piece gets started:
The US Supreme Court on Thursday agreed to examine whether anyone convicted of possessing images of child pornography can be required to pay a multimillion dollar restitution award to the abused child depicted in the illicit images — even if the individual had no direct contact with the child-victim.
Under the Mandatory Restitution for Sexual Exploitation of Children Statute, Congress said that a judge “shall order restitution” for the victim in a child pornography case in “the full amount of the victim’s losses.” The law applies to those who personally engage in physical abuse of a child while producing pornographic images of the abuse. But the question in the appeal is whether the same law requires anyone who views or possesses the resulting child pornography to also pay the total amount of restitution.
The issue has arisen in hundreds of cases across the country involving possession of child pornography. The vast majority of courts have declined to require child pornography consumers (as opposed to producers) to pay the full amount of restitution. Only one federal appeals court, the New Orleans-based Fifth US Circuit Court of Appeals, has ordered full restitution under such circumstances.
On Thursday, the Supreme Court agreed to examine a case from the Fifth Circuit and decide whether the government or the victim must be able to prove there is a causal relationship between the defendant’s conduct and harm to the victim and the victim’s claimed damages.
Recent related post:
Thursday, June 27, 2013
Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence child porn downloading in Bistline
As first reported in this post, a Sixth Circuit panel early last year in US v. Bistline, 665 F.3d 758 (6th Cir. 2012), ruled that is was substantively unreasonable to impose a non-prison sentence on a defendant who "pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer" and faced a recommended guideline sentence of 63-78 months’ imprisonment." Thereafter, just about a year later as reported in this post, U.S. District Judge James Graham resentenced this defendant to the same sentence imposed the first time around, but also ruled that the 70-year-old Richard Bistline must be confined to his Knox County home for the first three years of probation.Today, via US v. Bistline, No. 13-3150 (6th Cir. June 27, 2013) (available here), the same Sixth Circuit panel has yet again deemed this sentence substantively unreasonable through an opinion that quotes a lot of what the panel said the first time around. Here is how the lastest Bistline opinion concludes:
Throughout the process of imposing Bistline’s first sentence and then his second, the district court placed excessive weight on the few factors that favor a lesser sentence, while minimizing or disregarding altogether the serious factors that favor a more severe one. The result once again was an abuse of the district court’s discretion. The sentence imposed on remand does not “reflect the seriousness of the offense”; it does not meet the retributive goal of “provid[ing] just punishment for the offense”; and it does not “afford adequate deterrence to criminal conduct[,]” among other deficiencies. 18 U.S.C. § 3553(a)(2)(A), (B). Bistline’s sentence is substantively unreasonable.
The government also requests that we reassign the case to a different district judge for resentencing. In deciding whether to reassign a case, we consider, among other factors, “whether the original judge would reasonably be expected . . . to have substantial difficulty in putting out of his mind previously-expressed views or findings[.]” United States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (first alteration in original) (quoting Bercheny v. Johnson, 633 F.2d 473, 476–77 (6th Cir 1980)). The record in this case makes clear that the district judge would have such difficulty here. Moreover, on remand, the district judge said the following: “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it.” We therefore grant the government’s request to reassign the case.
Bistline’s sentence is vacated, and the case remanded for reassignment and resentencing.
At this stage, and with a reassignment now ordered, it will be interesting to see if the defendant here might seek en banc review or even certiorari in an effort to find a group of judges who might be prepared to conclude this sentence is reasonable despite being well below the calculated guideline range.
Prior related posts:
- Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
- District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal
UPDATE: Over at the Sixth Circuit Blog, Bradley Hall has this new lengthy post about the Sixth Circuit's work in Bistline which it titled "The Sixth Circuit is a Sentencing Court." It gets started this way:
In a troubling line of cases culminating in today’s decision in United States v. Bistline (Bistline II), the Sixth Circuit has engaged in "substantive reasonableness" review to impose an inflexible rule that in cases involving the possession of child pornography, district courts must impose prison sentences, regardless of whether their analysis of the 18 U.S.C. § 3553(a) factors tells them that prison would be "greater than necessary" to effectuate the statutory goals of sentencing, and regardless of the fact that Congress itself elected not to impose a mandatory minimum sentence.
The analysis in this post reinforces my sense that the defendant here ought to at least take a shot at en banc review before concluding that the Sixth Circuit has essentially mandated that he get sent to federal prison.
June 27, 2013 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack
SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courtsAs reported here at SCOTUSblog, the Supreme Court wrapped up some business today via a final order list which included to criminal justice cert grants:
In a final round of orders for the Term, the Supreme Court on Thursday granted two new cases, and sent back a case on abortion rights back to an Oklahoma state court, asking for answers to specific questions on the impact of a new state law.
The Court agreed to hear, in its next Term, the cases of White v. Woodall (12-794) and Paroline v. United States (12-8561), limiting the question in that second case to a newly crafted question about restitution orders in child pornography cases. (Case page is forthcoming in Paroline.)
Woodall is one of those (always too popular) capital habeas/AEDPA cases that seems more about error-correction than changing the jurisprudential course of capital habeas review. But Paroline has the Justices finally agreeing to take on the vexing, dynamic and very consequential issue of criminal restitution awards in federal child pornography sentencing. Here is how the Justices' teed-up the issue in Paroline for consideration next term:
The petition for a writ of certiorari is granted limited to the following question: What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259.
I will have lots and lots to say about the Paroline grant and the issues it raises in the weeksn and month ahead. But already making my head hurt is the intriguing question of just who can, will and should get a chance to present arguments in Paroline.
Obviously, Doyle Paroline, the criminal defendant who petitioned for cert and is seeking to avoid a restitution punishment, will be represented and make arguments to the Supreme Court contended he should not have to pay restitution as part of his criminal sentence for downloading child pornography. And United States, of course, is the respondent which will be represented by the Solicitor General's office and likely will make arguments for a possible restitution award as part of a federal criminal sentence for downloading child pornography. But the real "parties of interest" in this new SCOTUS case (and hundred of other to be impacted by a ruling in Paroline) are the (many thousands of) victims of child pornography offenses.
Thanks to the federal Crime Victims Rights Act, lawyers for the victims of child pornography offenses have often been able to play an active and vocal role in lower courts as they adress the difficult statutory interpretation issue now taken up by SCOTUS in Paroline. Will these lawyers get a chance to argue before SCOTUS in Paroline? Might the CVRA be read to suggest that the Supreme Court must, or at least really should feel compelled to, give one (some? many?) counsel on behalf of child porn victims a chance to present oral argument to the Court? Should brief from lawyers or groups respresenting child porn victim be styled amicus briefs in the Supreme Court or are they really party briefs that need to be filed under the distinct rules and timeline for such filings?