Sunday, May 20, 2012

Federal civil commitment of sex offenders subject to new legal challenges

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 17, 2012

Notable Slate piece on gender disparities in sex crime sentencing

Last week in this post I discussed an Arizona case in which a female teacher's aide got a lifetime probation sentence for her sex offenses involving two young teenage boys.  I noted that the case reinforced my sense that adult females sexually involved with under-age boys sometimes get much more lenient sentencing treatment than similarly situated males, and now Emily Bazelon has more to say on the subject in this notable new Slate piece.  Here are a few paragraphs from her commentary:

Is [Gabriela Compton's] sentence of probation nonetheless justified because women molesting boys is just different than men molesting girls?  There are salient differences between men and women when it comes to sex offenses.  For starters, men are far more likely to commit sexual assault than women are, accounting for 96 percent of the total. They are also rearrested much more frequently.

The women who perpetrate this misconduct not surprisingly have serious problems.  Like the men, they have poor coping skills and trouble showing empathy.  This report by the Center for Sex Offender Management breaks female sex offenders into three types, based on clinical observations.  The first group were coerced by men into abusing children, even their own.  The second were themselves victims of incest or other sexual abuse — this kind of history is far more likely for women sex offenders than for men, and the women in this category also tend to victimize young children in their own families.  The third type, labeled “teacher/lover,” sounds more like Gabriela Compton.  They were “often struggling with peer relationships, seemed to regress and perceive themselves as having romantic or sexually mentoring ‘relationships’ with under-aged adolescent victims of their sexual preference, and, therefore, did not consider their acts to be criminal in nature.”...

I’d rather the law err on the side of caution and uniformity here.  And I can’t really get my mind around probation for a woman who was facing nearly four decades in prison, even if it is probation for life that includes sex-offender registration.  Thirteen-year-old boys should be shielded from predatory adults the same way girls are.  If they don’t think they want the shield, well, maybe they don’t know what’s good for them.

Not surprisingly, as as true with my original post, this discussion of gender differences and sexual relations has generated a lot of diverse comments.

Prior related post:

May 17, 2012 in Offender Characteristics, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, May 16, 2012

NY legislature, responding to contrary court ruling, quick to make CP viewing criminal

As reported in this new Reuters story, headlined "N.Y. Senate passes bill to make viewing child porn on Internet a crime," legislatures have a way of moving fast when it comes to going after people who view the wrong kind of porn. Here are the details:

The New York State Senate on Tuesday passed legislation to make it a crime to view child pornography on the Internet, as lawmakers rushed to close a loophole opened by a state appeals court just a week earlier.

State law currently prohibits the possession and promotion of child pornography. But a May 8 ruling by the New York Court of Appeals held that viewing child pornography on the Internet without taking further action such as printing or saving files does not necessarily constitute possession.

The ruling caused an instant furor among state lawmakers, who are acting with unusual speed to pass corrective legislation.

The bill passed by the Senate on Tuesday would make it a felony to "knowingly access with intent to view any obscene performance which includes sexual conduct by a child less than sixteen years of age."...

About 15 states have criminalized the viewing of child pornography, many of them in response to court decisions, according to the National Center for Missing and Exploited Children.

May 16, 2012 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, May 15, 2012

"Can a sex-offender ever have a fresh start?"

The question in the title of this post is the headline of this notable commentary by Ronnie Polaneczky appearing in the Philadelphia Daily News.  Here is how it begins:

Twenty-seven years ago, Dale Bickerstaff did a horrible thing. He was strung out on crack, so he’s sketchy on the details. But he admits he had sex with a female acquaintance whose apartment he broke into, with a friend, to steal a TV.

Bickerstaff maintains that the sex he had with the acquaintance, who was at home, was consensual. The victim and the court disagreed, and he went to jail in 1985 for rape.  He was released from prison in 2001 eager for a fresh start.  But a fresh start, he has learned, is often impossible once potential employers learn that you’ve been imprisoned for a sex crime.

“They say, ‘You can’t work here; you’re a rapist,’” says Bickerstaff, 52, who was recently offered good custodial jobs by two employers — including the Philadelphia International Airport — that then canceled the offers once his long-ago conviction came to light.  “No one takes the time to know you.  They see you on the Internet [sex-offender registry] and they slam the door.”

I won’t lie.  When Bickerstaff asked me to tell his story, I flinched.  What employer in his right mind, I wondered, would knowingly hire a convicted rapist?  If something terrible happened, the employer would be held liable for a negligent hiring.  And I can’t imagine many employees would happily work alongside Bickerstaff once they learned of his past.

Then again, the rape was in 1985, Bickerstaff did his time, and he hasn’t had a single infraction since leaving prison 12 years ago.  So he has more than paid his debt to society. He has also married a good woman whose five grown children and grandchildren have provided him a level of stability and support he says he has never known.

What more does he need to convince an employer that he’s worth a chance? “Honestly, there’s no easy answer,” says William Hart, director of the city’s Re-Integration Services for Ex-offenders (RISE).  The program helps newly released inmates who are most likely to re-offend (overwhelmingly, young men) find community and social supports to prevent them from re-terrorizing the public.

But RISE doesn’t work with either sex offenders or arsonists because the program hasn’t the professional staff to deal with clinical issues specific to those offenders.  Still, Hart believes that Bickerstaff’s conviction, as time goes on, will play less and less a role in his employment.

Megan Dade, director of the Pennsylvania Sexual Offenders Assessment Board, is not so sure.  “The problem is that many people still believe that ‘once a sex offender, always a sex offender,’ even though new research shows that for many people that is just not the case,” says Dade, whose board evaluates sex offenders for the courts.

Her organization is working to refine the state’s classification of sex offenders to distinguish those likely to re-offend from those who probably won’t.  But she knows that, no matter the classification, sex offenders face huge employment hurdles.  “It’s not easy for any former inmate to find work, especially in this economy,” she says.  “For a sex offender, it’s doubly hard.”

But this local story, headlined "Registered sex offender wins election in small Texas town," reveals that at least in some places and with some jobs, a registered sex offender can get a second chance.  Here are the basics:

Everywhere you look in Skellytown, there are signs of support for Warren "Red" Mills, which is why him winning one of the two open seats should come as no surprise.

But Mills is a registered sex offender with a history that includes jail time for sexual contact without consent and probation for separate allegations of sexual contact with two minors.  That made him an unlikely candidate for city office.  But according to city officials, Mills is allowed to hold the position because he does not have a felony conviction.

Some residents still don't like it. Some say it was inappropriate for him to run in the first place and even more inappropriate for him to win.  Others are disappointed.   But his supporters say he is a good man who will do good things for their city.

May 15, 2012 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (54) | TrackBack

Sixth Circuit panel produces pair of notable opinions in CP sentencing reversal

Judicial administration fans, as well as sentencing fans, will want to find time to check out today's Sixth Circuit panel decision in US v. Aleo, No. 10-1569 (6th Cir. May 15, 2012) (available here). The start of the majority opinion highlights what the opinion covers and what it is notable:

In this case, we deal with two appeals arising out of the criminal conviction and sentencing of Craig Aleo. Craig Aleo appeals his sentence (Part I), and his trial attorney, John Freeman, appeals the sanction imposed upon him by the district court (Part II).

Craig Aleo was sentenced to the statutory maximum sentence of 720 months of imprisonment after he pleaded guilty to one count each of producing, possessing, and transporting and shipping child pornography. His guidelines range was 235–293 months. Because we cannot find a justification within the factors enumerated in 18 U.S.C. § 3553(a) to justify the variance imposed by the district court, we reverse and remand for resentencing.

Craig Aleo’s trial counsel, John Freeman, was sanctioned $2,000, based on the district court’s inherent power to sanction, because he filed a motion asking the court to compel the government to make a formal motion regarding any victim who wanted to speak at trial pursuant to the Crime Victim Rights Act (CVRA), naming the victim, and providing a preview of the victim’s statement.  Because there is no objective evidence that trial counsel filed this motion in bad faith, we reverse.

And the start of Judge Sutton's concurring opinion highlights why judicial administration aficianados ought also find Aleo of interest:

I join the court’s decision in full, including its conclusion that the district court abused its discretion when it invoked its inherent power to impose sanctions on defense attorney John Freeman for filing a frivolous motion.  I write separately to express skepticism about a lower federal court’s power ever to use inherent authority, as opposed to the contempt power established by statute (18 U.S.C. § 401) and implemented by rule (Fed. R. Crim. P. 42), to punish a defense attorney in a criminal case for filing a frivolous motion.

May 15, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, May 09, 2012

South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds

The South Carolina Supreme Court has a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender.  The ruling in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here), is a bit hard to figure out: the first opinion seems to announce the opinion for the court, but then a footnote at the state of Justice Hearn's opinion states that "[b]ecause a majority of the Court has joined the separate concurring opinion of Justice Kittredge, his concurrence is now the controlling opinion in this case." I will quote the first paragraph from both opinions in the case, because they both are noteworthy, starting here with the opinion of Justice Hearn:

Jennifer Rayanne Dykes appeals the circuit court's order that she be subject to satellite monitoring for the rest of her natural life pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010). She lodges five constitutional challenges to this statute: it violates her substantive due process rights, her right to procedural due process, the Ex Post Facto clause, the Equal Protection Clause, and her right to be free from unreasonable searches and seizures. We hold the mandatory imposition of lifetime satellite monitoring violates Dykes' substantive due process rights and reverse and remand for further proceedings.

The very lengthy opinion by Justice Hearn, which apparently garnered only two (of the five) votes on the court, is thereafter followed by a shorter opinion by Justice Kittredge which starts this way:

I concur in result. I commend my learned colleague for her scholarly research, and I agree with the majority's general proposition that persons have a fundamental right "to be let alone."  But I respectfully disagree that Appellant, as a convicted child sex offender, possesses a right that is fundamental in the constitutional sense.  I do not view Appellant's purported right as fundamental.  I would find Appellant possesses a liberty interest entitled to constitutional protection, for all persons most assuredly have a liberty interest to be free from unreasonable governmental interference.  I would find that the challenged mandatory lifetime, non-reviewable satellite monitoring provision in section 23-3-540(C) is arbitrary and fails the minimal rational relationship test.

Long story short, it appears that all members of the South Carolina Supreme Court have concluded that the mandatory lifetime satellite monitoring now required by stature in South Carolina for sex offender Jennifer Rayanne Dykes is unconstitutional.  (I mention the full name of the defendant in this case because I cannot help but wonder, yet again, if the defendant's gender may have played at least an unconscious role in this notable outcome.  I do not think it is implausible to at least suspect this case might well have come out another way if the the defendant was named Johnny Rex Dykes.)

I have not kept count of how many states are like South Carolina in requiring lifetime GPS monitoring of many sex offenders, but I am pretty sure this ruling could (and should?) have ripple effects in at least a few other jurisdictions.  I am also sure that both constitutional scholars and those interested in the intersection of modern technology and criminal justice doctrines ought to check out the Dykes opinions.

May 9, 2012 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (18) | TrackBack

Tuesday, May 08, 2012

A gendered outcome?: lifetime probation for female teacher's aide engaged in sex acts with middle-schoolers

Though this local reportabout a state sex offender sentencing in Arizona is a bit prurient, the story (and all its prurient details) reinforces my sense that adult females sexually involved with under-age boys sometimes get much more lenient sentencing treatment than similarly situated males.  The story is headlined "Gabriela Compton, Former Middle School Teacher's Aide, Gets Probation for Sexing One Student and Sexting Another," and here are the basics:

Welcome to the wide world of teacher sex-scandal sentencing, as former middle school teacher's aide Gabriela Compton was sentenced this morning to a life on probation. Compton, now 21, was arrested in March 2011 after principals at Phoenix's Western Valley Middle School found out Compton had been sending nudie pictures to students.  As you can imagine, the teenage boys on the receiving end of those pictures didn't exactly keep the pics to themselves.

According to court documents previously obtained by New Times, the police investigation led to the cops finding out Compton had groped a student, and had sex with another.

Compton exchanged cell phone numbers with a 14-year-old male student in late February 2011, according to the documents, and the student asked Compton to send him a picture of herself. Compton cut to the chase, and sent over the picture of her topless, according to the documents, and the student sent her a picture back of a penis.... After a few more rounds of sexting, Compton picked up the boy and a few of his friends to drive them home, except she took a quick detour to have sex with the 14-year-old student in the back of her van while parked in an industrial park near 67th Avenue and Van Buren Road, the documents said.

Then a 13-year-old student told his story to the cops. He told police he did the sexting thing with Compton as well, and he and the 14-year-old student compared notes the nude pictures of Compton they received, according to the documents. The documents also stated Compton told the boy that she wanted to "rub his cock," and he replied by telling the teacher's aide that he wanted to grab her breasts -- and you betcha the teenaged boy told police he did, after Compton bought him some shoes and a shirt at the mall.

Compton asked the boy if he wanted to have sex, according to the documents, and told him that they could do it "for his birthday," which was coming up, but apparently not before Compton's arrest.

This additional AP story about this case provides more of the notable sentencing details (and less of the prurient ones):

Maricopa County prosecutors say 21-year-old Gabriela Compton was sentenced Tuesday to three terms of lifetime probation with sex offender terms for three counts of sex abuse. Compton was indicted in April 2011 on three counts each of sexual abuse and sexual conduct with a minor and one count of furnishing obscene or harmful items to minors.

Prosecutors say she entered into a plea agreement.  Compton could have faced a prison sentence of at least 39 years if she was convicted on all seven counts.  Compton was a special-education instructional aide at Western Valley Middle School.  She was put on administrative leave in March 2011 and resigned soon afterward.

I am not a specialist on Arizona sex offender laws and sentencing, but I suspect that absent the plea deal, this sex offender was potentially facing decades of mandatory prison time.  I also suspect that the judge's sentencing decision to give a teacher's aide who preyed on students only probation (albeit a lifetime term) would likely be subject to lots of controversy... if the aide was a man and the victims were girls.  But when a woman molests (willing and eager?) young teenagers, then sentencing outcomes are (justifiably?) seen in a somewhat different light.

May 8, 2012 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

Monday, May 07, 2012

Stressing AEDPA deference, split Ninth Circuit upholds 3-strikes sentence for failing to register

Late Friday, the Ninth Circuit issued a notable habeas opinion in Crosby v. Schwartz, No. 10-17726 (9th Cir. May 4, 2012) (available here), which rejects a defendant's Eighth Amendment attack on his three-strikes prison sentence of 26-years-to-life based on his failure to register as a sex offender.  Here is an excerpt from the majority opinion:

Taken together, these three cases [involving similar Eighth Amendment claims] emphasize a consistent principle found in the sex offender registration context — whether the crime is a de minimis crime for which a life sentence is disproportionate is related to how closely the violation is tied to helping achieve the purposes of the sex offender registration statute. See Gonzalez, 551 F.3d at 884-85; Carmony, 127 Cal. App. 4th at 1078-79; Meeks, 123 Cal. App. 4th at 708-10. Thus, the state court was not objectively unreasonable when it concluded that Crosby’s failure to register after he moved was not a mere technical offense. Crosby was no longer living at his last registered address at the time of his arrest, and his failure to register impeded the police’s ability to find him for surveillance.  The state court’s decision is even more reasonable because, unlike the defendant in Carmony, there was evidence that Crosby was actively attempting to evade his obligation to register through the theft and falsifying of stolen identification cards.

Additionally, the California Court of Appeal found that Crosby’s prior convictions were serious and violent crimes.  It noted that during the incident resulting in the rape and forcible copulation convictions, Crosby engaged in multiple acts of violence and threatened the life of the victim.  It was further noted that during the prior robbery conviction, Crosby and an accomplice robbed a restaurant at gunpoint.  The use of violence in Crosby’s prior convictions distinguishes his case from those in which the inference of disproportionality was found to be met by the court....

Crosby’s challenge arises under AEDPA, and we must give the appropriate deference to California Court of Appeal’s decision.  In light of the various cases that have dealt precisely with sex offender registration convictions under the gross disproportionality principle, it was not an unreasonable application of clearly established federal law for the California Court of Appeal to affirm Crosby’s sentence under the Eighth Amendment.

An intriguing partial dissent by Judge Noonan expresses deep concern about arguments from California's lawyers that he sees as advancing the "remarkable contention ... that there is no limit to the punishment that the state may prescribe for any recidivist." He goes on to lament the implications of this argument with a notable classic reference:

In California’s sweeping gloss, proportionality in sentencing a recidivist has been eliminated.  The repeat felon, however technical his felony, is to be “incapacitated.”  With a severity worthy of Sparta, the state of California will bring to book those who thrice fall afoul of any felony provision in its legislation.

I do not believe that the humane restraint of the Eighth Amendment has been so removed from its role in measuring the proportion of the penalty to the offense.

May 7, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Sunday, May 06, 2012

Note examines "vastly different" circuit views on internet bans for supervised release

Via Concurring Opinions, I discovered this new student note titled "You Don’t Have Mail: The Permissibility of InternetUse Bans in Child Pornography Cases and the Need for Uniformity Across the Circuits."  Here is the abstract:

The federal courts of appeal have formed vastly different conclusions with respect to the reasonableness of Internet-use bans as a term of supervised release in virtual child pornography cases.  All courts ground their decisions in 18 U.S.C. § 3583(d), the federal statute governing supervised release conditions.  Nonetheless, when presented with seemingly analogous facts, some courts uphold Internet-use bans, whereas others strike them down.  Courts upholding such bans conclude that they constitute effective deterrents and ensure public safety.  Courts overturning the bans, on the other hand, assert that they unreasonably deprive offenders of their liberty interests.

Because decisions regarding the permissibility of Internet-use bans are, under the current statutory regime, incoherent at best and arbitrary at worst, Congress should amend § 3583(d) to provide judges with meaningful, cyberspecific guidance.  Accordingly, this Note proposes that Congress adopt the UNIFORM Act, which sets forth child pornography–specific guidelines for determining the terms for supervised release.  Inspired by the United States Sentencing Guidelines and extracted from the caselaw regarding the permissibility of Internet-use bans, the UNIFORM Act seeks to limit judges’ sentencing discretion in child pornography cases.  At bottom, this Note posits a commonsense compromise, informed by existing statutes and caselaw, which would achieve consistency in an area of the law currently plagued by judicial ambiguity.

May 6, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 04, 2012

"Delineating Sexual Dangerousness"

The title of this post is the title of this new article from Professor Fredrick Vars, which is now available via SSRN. Here is the abstract:

Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness?  For sex offenders, fear and uncertainty in case law leave open this passage to limbo.  This article closes it.

The due process balancing test used to evaluate standards of proof provides the framework.  This article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution.

Applying decision theory with assumptions favoring the government, this article calculates a minimum likelihood of recidivism for commitment.  Of the 20 jurisdictions with sex offender commitment, just one requires something close to that constitutional floor. Thousands have been detained applying unconstitutional standards, and the vast majority remains so.

May 4, 2012 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, May 01, 2012

Indiana legislators (over?)reacting to pair of sex offenders earning early prison release

This new AP story, headlined "Early prison release for sex offenders irks lawmakers," provides a telling and notable how sex offenders can get into trouble and prompt a harsh legislative response for, in essence, just being good prisoners.  Here are the details:

Indiana lawmakers are planning changes to the state’s early release law in response to this week’s slated release of two convicted sex offenders who significantly shortened their prison terms by earning college degrees.

Republican Sen. Jim Merritt of Indianapolis said Tuesday the law’s shortcoming is illustrated by the case of Christopher Wheat, a former high school swim coach convicted of having a sexual relationship with a 14-year-old female swim student.

Wheat, 38, is scheduled for release Thursday from the New Castle Correctional Facility after serving less than two years of his eight-year sentence.  Merritt said Wheat “manipulated the system” to cut his sentence to about 20 months by earning two computer science degrees behind bars. “I think he gamed the system.  And we need to make sure nobody does that anymore,” Merritt said.  “We all believe education in prison should be for the rehabilitation of one’s character and preparing them for their life as an ex-offender.”...

Wheat was sentenced to eight years in September 2010 following his conviction on two counts of sexual misconduct with a minor and one count of child solicitation.  His victim was a then-14-year-old student he coached at Lawrence North High School in Indianapolis.

Doug Garrison, a spokesman for the Indiana Department of Correction, said Wheat was sentenced to 15 years in prison, with five years suspended and another two years in community corrections, leaving him with an eight-year sentence.  It was cut to four years for good behavior and another two years and three months were removed when he earned an associate degree and a bachelor’s degree. Garrison said Wheat must wear a GPS-monitored ankle bracelet following his release from prison.

Merritt said he’s working with Sen. Randy Head, R-Logansport, to draft legislation for the next General Assembly that would likely include making convicted sex offenders unable to shave time off their sentences by earning degrees in prison.  It might also seek to prevent inmates from using previously accumulated college credits toward their degrees, as Wheat had done....

Merritt said the slated release of another convicted sex offender -- also Thursday from the New Castle prison -- demonstrates that changes are needed to the state’s early release law. Daniel J. Moore, a 53-year-old former New Whiteland Baptist Church pastor, pleaded guilty in March 2010 to child solicitation and sexual misconduct with a minor for a sexual relationship with a 15-year-old girl who was a church member.  His 10-year sentence was cut to five for good behavior, and he earned associate and bachelor’s degrees in human services, further paring his sentence to about two and a half years.

State Sen. Pat Miller, R-Indianapolis, said she also will push for changes to the early release law “to fix this terrible situation.” “Sexual predators are a menace to our society. The pain they inflict upon their victims lasts a lifetime, and it makes no sense that these violent offenders are being released early from prison,” Miller said in a statement.

May 1, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, April 29, 2012

"Debate rages over severity of child-porn sentences"

The AP has this lengthy new piece, sharing the headline of this post, on what is now a fairly old story: federal judges and others highlighting that the guideline sentences for child porn downloaders seem often unduly harsh.  I am not aware of any major new developments on this front, but these excerpts from the AP piece effectively review recent parts of this long-running debate over federal sentencing law and practices:

Their crimes are so loathsome that some hardened courtroom veterans recoil at viewing the evidence.  Yet child-pornography offenders are now the focus of an intense debate within the legal community as to whether the federal sentences they face have become, in many cases, too severe.

By the end of this year, after a review dating to 2009, the U.S. Sentencing Commission plans to release a report that's likely to propose changes to the sentencing guidelines that it oversees.  It's a daunting task, given the polarized viewpoints that the commission is weighing.  The issue "is highly charged, both emotionally and politically," said one of the six commissioners, U.S. District Judge Beryl Howell.

On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child.  In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high.  Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes.

On the other hand, some prosecutors and members of Congress, as well as advocates for sexual-abuse victims, oppose any push for more leniency.  At a public hearing in February, the Sentencing Commission received a victim's statement lamenting that child pornography offenders "are being entertained by my shame and pain."...

Once completed, the Sentencing Commission report will be submitted to Congress, which could shelve it or incorporate its recommendations into new legislation.  Already, the commission has conveyed some concerns.  In a 2010 report on mandatory minimum sentences, the commission said the penalties for certain child pornography offenses "may be excessively severe and as a result are being applied inconsistently."

However, similar misgivings voiced by the commission in previous years failed to deter Congress from repeatedly ratcheting up the penalties - including legislation in 2003 that more than doubled average sentences for child pornography crimes....

In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former federal prosecutor Linda Dale Hoffa criticized the approach by Congress.  "The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote.  "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders."...

As a backdrop to the sentencing debate, Internet-based child pornography has proliferated, and the crime is an increasingly high priority for federal law enforcement agents.  According to the Justice Department, federal prosecutors obtained at least 2,713 indictments for sexual exploitation of minors in 2011, up from 1,901 in 2006....

There's one point of agreement in the sentencing debate: All parties agree that penalties should remain severe -- or be toughened -- for those who produce and promote child pornography.  A key point of contention, by contrast, is the degree to which offenders charged with receipt and possession of child porn pose a risk of physically abusing children themselves, as opposed to looking at images of abuse....

Susan Howley, public policy director for the National Center for Victims of Crime, has been urging those involved in the debate to keep the victims in mind.  She says they face higher risk of developing mental health disorders, sexual dysfunction and substance abuse problems. "While sentencing does not appear to be the perfect tool to reduce the market for child abuse images, it is one of the few tools available," Howley told the public hearing in February. "Through sentencing we express to society, and to the individual victims and family members harmed, that we recognize the seriousness of this offense."

A few related older and more recent child porn prosecution and sentencing posts:

April 29, 2012 in Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, April 28, 2012

"Prison Officials Go After Masturbating Prisoners"

The title of this post is the headline of this local article from Connecticut discussing a bill being considered by state lawmakers.  Here are the details:

Prison officials in Connecticut want lawmakers to pass a bill that would label inmates who commit lewd acts in their cells, including masturbation, as sex offenders. It's an ongoing problem at prisons. In 2011, 94 inmates committed 390 indecent exposure violations of this type, according to the bill.

At the high-security Northern Correctional Institution, some inmates masturbate in front of staff, often a female staff member, a Correction Department spokesman said. Lisamarie Fontano, president of the union representing prison workers, said more than 500 such incident reports were written up at Northern last year.

Internal discipline hasn't deterred the behavior, but she believes inmates will stop if they know they will have to register as a sex offender when they leave prison, Fontano said.

Prior sort-of related posts:

April 28, 2012 in Offense Characteristics, Prisons and prisoners, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Thursday, April 19, 2012

Are we approaching a tipping point in the modern-day sex offender panic?

The question in the title of this post is prompted by this new piece in Stateline, which is headlined "Are sex offense laws too broad?." Here are excerpts from the piece:

Over eight years in the Missouri House, Republican Representative Rodney Schad has gotten numerous phone calls, letters, and emails from registered sex offenders and their families about the damage the registry has caused in their lives — the harassment, persistent unemployment, and community ostracism. Three years ago, Schad decided to start researching the state's registration policy, and what he found surprised him.

"There's no way to tell who's dangerous and who isn't," says Schad. "[People] look up their address and see 10 offenders living or working near their house." In his view, the list is becoming bloated and less helpful to ordinary citizens than it should be.

To try and refine who actually shows up on the public registry, Schad crafted legislation to create a tier system so that only the most dangerous offenders are listed publicly. Currently, anyone convicted of any type of sex crime, from public urination to child molestation, is placed on the list. The bill also creates an appeals process, so that offenders can petition to be removed from the registry after 10 or 20 years, depending on their crime, and removes all juvenile sex offenders tried in juvenile court from the public registry....

Missouri is not the only state pushing back against the strictest registry requirements. Georgia, which had one of the toughest sex offender laws in the nation, scaled back its registration requirements in 2010 for people who had committed crimes such as false imprisonment or non-sexual kidnapping. This immediately removed 819 people from the registry, according to the Atlanta Journal- Constitution.

In Ohio, which was the first state to go along with the Adam Walsh Act in 2007, the state Supreme Court has struck down three controversial portions of SORNA compliance legislation in the last two years: the lifetime registration of some juveniles, the application of the more restrictive Adam Walsh Act penalties to offenders sentenced under previous, less strict laws, and community re-notification requirements for offenders previously sentenced.

Even though opposition to the harshest sex offender policies is brewing, the more common story is still more punishment, not less. The Louisiana House passed a billl this week to exclude sex offenders convicted of computer-related offenses from social networking sites. The Arkansas parole board is considering banning registered sex offenders from using the Internet, and New York has recently distributed sex offenders' email addresses to online gaming companies which are then disabling offenders' accounts.

April 19, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Thursday, April 05, 2012

"NY Moves to Ban Sex Offenders from Video Game Websites"

WaluigiThe title of this post is the headline of this news story, which includes this report on the latest effort to keep sex offenders from using the internet to have certain kinds of fun:

Registered sex offenders in New York state are being shut out of online gaming systems that have allowed them to interact with children anonymously under an agreement announced Thursday by state Attorney General Eric Schneiderman.

The deal applies only to sex offenders within state borders — boundaries that may not hold much weight in virtual gaming worlds where players young and old mix anonymously, conversing by voice and written message. "Online gaming is not just a digital playground. It has the potential to be a 21st century crime scene," Schneiderman said, citing a 2008 Pew Research Center study that found that 27 percent of teenagers acknowledge playing games online with strangers. Many games require players to interact virtually with others.

The deal may be the first of its kind to focus on online gaming; Schneiderman said he was aware of no other. Such precautions are frequently taken on more traditional social networking sites such as Facebook.

The agreement — dubbed "Operation: Game Over" by Schneiderman's office — has led companies including Microsoft and Apple to shut down or suspend communication privileges for more than 3,500 accounts. The attorney general declined to identify companies that have thus far declined to participate.

Schneiderman said his office was exploring ways in which the program could be expanded to other states. In New York, registered sex offenders are required to disclose all their email addresses and online accounts, allowing gaming companies to perform a weekly purge of player accounts associated with the offenders.

Earlier this month, Schneiderman said, a 19-year-old man pleaded guilty to sexual abuse charges after befriending a 10-year-old through Microsoft's Xbox LIVE and luring the boy to his home.

The companies that have agreed to participate in the program are Microsoft, Apple, Blizzard Entertainment, Electronic Arts, Warner Bros. and Disney Interactive Media Group.

April 5, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, April 04, 2012

Kansas Supreme Court rules that repeat dog molester can avoid sex offender registration

As reported via this local article, the Kansas Supreme Court "has decided that a Sedgwick County man who molested a rottweiler won’t have to register as a sex offender."  Here is more about the ruling:

The state’s highest court overturned both Sedgwick County District Court Judge Joseph Bribiesca and the Kansas Court of Appeals, who had ruled Joshua Coman would have to register as a sex offender after his second conviction for sodomy involving a dog.

In his appeal, Coman argued that Kansas’s registration law did not apply to him because he was convicted of a misdemeanor that wasn’t on the list of felony offenses for which registration is required....

In 2008, a former roommate of Coman’s “discovered Coman in her garage with the dog in a compromising position,” the court record said.  Police were called and Coman admitted to having penetrated the female rottweiler with his finger, the court record said.  At the time, he was on probation after being prosecuted on a similar incident in Reno County the year before.  Coman pleaded guilty and was sentenced to six months in jail.

But the question of whether he would have to register as a sex offender came down to interpretation of the way the law is worded.  The statute lists several crimes where sex-offender registration is required, including felony sodomy.  Misdemeanor sodomy is not on the list.

Prosecutors had argued that a “catch all” provision in the law would allow a judge to require offender registration of anyone convicted of a “sexually motivated” crime.  The Supreme Court justices disagreed, concluding that the Legislature excluded misdemeanor sodomy on purpose.

The full opinion in Kansas v. Coman is available at this link

I wonder if (when) PETA or similar animal groups in Kansas will soon urge the legislature to fix this registry loophole which, obviously, now places all the innocent dogs in Kansas at greater risk.  (Indeed, I am glad Toto is not alive to learn of this notable jurisprudential development.)

April 4, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, April 03, 2012

Ohio Supreme Court finds required juve sex offender registration unconstitutional on numerous grounds

As reported in this lengthy official press release, the "Supreme Court of Ohio today voided as unconstitutional provisions of the Ohio Adam Walsh Act (AWA) that impose automatic lifelong registration and community notification requirements on certain juvenile sex offenders who were tried within the juvenile court system."  Here is more on this significant state Supreme Court ruling which has national implications:

In a 5-2 majority decision authored by Justice Paul E. Pfeifer, the court held that applying automatic lifetime sex offender registration and community notification requirements imposed by the AWA against an Athens County 15-year-old violated the prohibitions in the U.S. and Ohio constitutions against cruel and unusual punishment, and also violated the defendant’s constitutional right to due process of law....

ustice Pfeifer’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Yvette McGee Brown. Justices Terrence O’Donnell and Robert R. Cupp entered separate dissenting opinions.

The full opinions in In re C.P., No. 2012-Ohio-1446 (Ohio Apr. 3, 2012) (available here), run 53 pages and they are all must reads for any and everyone who follows juvenile justice issue or sex offender registration issues or Eighth Amendment jurisprudence.  Here is how the majority opinion gets started:

In this case we determine the constitutionality of R.C. 2152.86, which creates a new class of juvenile sex-offender registrants: public-registry-qualified juvenile-offender registrants.  These offenders are automatically subject to mandatory, lifetime sex-offender registration and notification requirements, including notification on the Internet.  We hold that to the extent that it imposes such requirements on juvenile offenders tried within the juvenile system, R.C. 2152.86 violates the constitutional prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 9, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 16.

April 3, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Arkansas parole board assessing total internet ban for all released sex offenders

As reported in this recent local story, headlined "Arkansas board eyes Internet ban for sex offenders," officials in the Natural State are considering a broad (unnatural?) restriction on all released sex offenders. Here are the basics:

Some freed sex offenders will be able to send e-mails and browse the Web for a while longer while the state Board of Parole researches whether it can adopt a policy that bars convicted sex offenders from using the Internet without infringing on their First Amendment rights.

The board had been scheduled to vote Thursday, at a meeting in Hot Springs, on a proposal to prohibit all paroled sex offenders from using the Internet -- at least for an initial period after their release from prison.  The board now restricts sex offenders' Internet access on a case-by-case basis.

But the board put off discussing imposing the broader restriction at the request of Chairman John Felts, who said the state attorney general's office is researching whether such a ban would be constitutional.  "We just want to make sure that we don't make a ruling that we have to back off of," Felts said....

At that meeting, Knoll said parole officers have found that offenders are frequently using the Internet to download child pornography and communicate with children.  Under the proposal, all sex offenders would initially be barred from accessing the Internet, but they could request permission to use it for a specific purpose, such as for use in the workplace.

Felts said he discussed the proposal Monday with Graves and Assistant Attorney General Arnold Jochums, a legal adviser to the board, and Jochums requested more time for research.  He said the board also contacted the Association of Paroling Authorities International, which agreed to survey states on their policies.

In a phone interview, criminal-defense attorney Jeff Rosenzweig of Little Rock said it's a "close question" on whether the board could bar offenders' Internet access. But he called the policy "ill-considered, particularly since so much of life and commerce and everything else like that has gone to the Internet.  It would put them at even more of a disadvantage in trying to be law-abiding, to reintegrate back into society," he said.

In Louisiana, a federal judge ruled that a law prohibiting certain types of sex offenders from using social networking sites, chat rooms and peer-to-peer networks was an unconstitutional restriction on free speech.  Unlike the Arkansas policy, however, the law made accessing the sites a crime and applied to offenders who were no longer under state supervision.  Pam Laborde, a spokesman for the Louisiana Department of Public Safety and Corrections, said the state's Parole Board now imposes restrictions on a case by-case basis.

In Texas, a Board of Pardons and Paroles policy, adopted in 2009, prohibits certain sex offenders from using social-networking sites, using the Internet to gain access to obscene material, communicating through the Internet with anyone they know to be under 17 or communicating on the Internet about sexual topics with anyone under 17, whether the offender knows the person's age or not.

The Texas restriction applies only to offenders deemed to be at high risk of re-offending and whose convictions involved the use of a computer.  Offenders can petition for an exception if the restriction interferes with the ability to attend school or perform duties at work.

As I have noted before, just whether, when, and how sex offenders can be prohibited from getting on-line is a challenging legal issue that seems certain to arise in many jurisdictions in many different ways.  I suspect it is only a matter of when, not if, this issue in some variation eventually get to the Supreme Court.

Some related posts:

April 3, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (12) | TrackBack

Sunday, April 01, 2012

Did severe sentence impact Arkansas Supreme Court's teacher-student "right to sex" ruling?

As noted in this Reuters article, the "Arkansas Supreme Court struck down a state law on Thursday that banned teachers from having sex with students under age 21, overturning a sexual assault conviction against a former teacher who had a consensual relationship with an 18-year-old student." The Arkansas Supreme Court's ruling in Paschal v. Arkansas, 2012 Ark. 127 (Ark. Mar. 29, 2012) (available here), is based on the Arkansas Constitution and a prior state ruling concerning right to sexual autonomy among consenting adults.  Here is more on the ruling (with my emphasis added) via the Reuters report:

In a 4-3 decision, the court vacated the conviction against David Paschal, a former teacher in the Elkins School District in northern Arkansas, because the girl was legally an adult during the relationship.

For about five months, Paschal, then 36, had a consensual sexual relationship with the female student at Elkins High School, according to court documents.  The girl had been a student of Paschal in tenth and eleventh grades, and she later became his classroom aide and offered to babysit his children.  The two began their affair in 2009, when she was a senior, and Paschal was arrested the following year.

In 2011, he was convicted of four counts of second-degree sexual assault and one count of bribing a witness at a jury trial last year. He was sentenced to 30 years in prison.

"Regardless of how we feel about Paschal's conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts," Chief Justice Jim Hannah wrote in the decision.  The issue presented to the court hinged on "Paschal's fundamental right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult. We hold that it does," the majority said.

In the dissent, Justice Robert Brown wrote that the decision "minimizes the role of a teacher." He also argued that the state has a general interest in the ensuring the welfare of children in school against teachers who abuse positions of trust and authority.

Neither the majority nor the dissent in Paschal makes any significant mention of the sentence that had been imposed on this defendant for having sex with his 18-year-old student.  But, as suggested by the title of this post and the fact I stressed above, I suspect that the severe sentence given to David  Paschal played a role — perhaps a large role — in convincing four Arkansas justices to strike down his convictions.  I really wonder if this case comes down the same way had the defendant received, say, a prison term of only three years rather than a term of three decades.

April 1, 2012 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, March 25, 2012

Another effective review of federal sentencing severity for child porn downloaders

The Louisville Courier-Journal has this lengthy and effective article (and a few companion pieces) discussing a topic familiar to regular readers of this blog: the severeity of federal sentencing rules for those who download child pornography from the internet.  The main article is headlined "Are child porn laws unfair? Viewers' sentences can be worse than molesters'," and here are excerpts:

Born with spina bifida and dependent on a wheelchair, 26-year-old Jon Michael Fox cannot hurt a soul, his mother and lawyer say.  But after being caught with more than 1,200 images of child pornography on his computer, some of which he traded with others, Fox was sentenced in 2009 by a federal judge in Louisville to 14 years in prison — with no option of early release.

The Justice Department says that long sentences for offenders such as Fox — even if they have had no contact with children — are vital in slowing the demand for child porn and the abuse of children exploited in making it.

But Fox’s attorney, Frank Campisano Jr., called Fox’s sentence “ludicrous,” saying his client “never could be a threat to anyone, including a child.”  Fox’s mother, Kathy, said, “He could have killed someone and got less.”

The facts appear to back her up. In 2010, about 1,800 offenders sentenced nationally for child pornography crimes in federal courts received longer average sentences than those convicted of arson, robbery, assault or even manslaughter, according to the U.S. Sentencing Commission.

In Kentucky’s Western District, the average federal sentence for child pornography was twice that for drug trafficking. Offenders released from prison also are required to submit to longer periods of supervision — sometimes for the rest of their life.

Federal offenders in the Western District of Kentucky were sentenced to an average of 10 years in prison from 2006 through last year for downloading and trading child pornography. That was nearly four times longer than offenders in Jefferson Circuit Court got for sexually abusing children, according to Courier-Journal research.

Such facts help explain a growing chorus of critics taking issue with what they say are Draconian penalties for those caught with child pornagraphy — even as they acknowledge, as do Campisano and Kathy Fox, that it is harmful....

U.S. Chief District Judge Joseph McKinley Jr. of Owensboro has said in sentencing hearings that the penalties often don’t fit the crime. “This is the first time that most of them have ever been in trouble,” McKinley Jr. s aid of such perpetrators. “And then, boom, here they are looking at 16 years in prison for engaging in their dark secret in the privacy of their own home.”

Those receiving the longest sentences in Western Kentucky had prior convictions involving sexual contact with children — including one man sentenced to life in prison. But 56 of 70 had no prior history of sexual contact with children.

The newspaper’s review found only three cases over the five-year period in which an offender was prosecuted for producing child pornography. “By and large, we never get the actual pornographers,” McKinley said at a hearing....

Former federal prosecutors in Louisville say that penalties for child pornography offenses are inordinately severe. “These are horrible crimes, but the sentences are way too long,” said Kent Wicker, a former U.S. attorney now in private practice.

Brian Butler, another former federal prosecutor, who called the penalties “insane,” cited a client he defended, Arthur Wayne Kniffley, 37, who was sentenced in 2010 to 17½ years in prison for possession and distribution of child pornography.  That was more than three times the five- year sentence he got in state court 13 years earlier for molesting three children.  Kniffley told authorities that he viewed child pornography to suppress his urges to commit other acts against children.

Companion pieces to this lead article are headlined "By the Numbers: Child pornography vs. other federal crimes," and "Do viewers of child porn also molest?" and "Prosecutions of child porn producers are rare."

March 25, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Sunday, March 18, 2012

Extraordinary review of federal sex offender civil commitment program

USA Today has published this extraordinary report on the federal sex offender civil commitment program under the headline "Sexual predators rarely committed under Justice program." Here is how it gets started:

Inside the sprawling federal prison here is a place the government reserves for the worst of the worst — sexual predators too dangerous to be set free.

Six years ago, the federal government set out to indefinitely detain some of the nation's most dangerous sex offenders, keeping them locked up even after their prison sentences had ended. But despite years of effort, the government has so far won court approval for detaining just 15 men.

Far more often, men the U.S.Justice Department branded as "sexually dangerous" predators, remained imprisoned here for years without a mandatory court hearing before the government was forced to let them go, a USA TODAY investigation has found. The Justice Department has either lost or dropped its cases against 61 of the 136 men it sought to detain. Some were imprisoned for more than four years without a trial before they were freed.

Dozens of others are still waiting for their day in court. They remain in a prison unit where authorities and former detainees said explicit drawings of children are commonplace, but where few of the men have received any treatment for the disorders that put them there.

Despite that, neither the Justice Department nor other watchdog agencies have offered any public assessment of how well the federal civil commitment law works.

For this investigation, USA TODAY reviewed all 136 cases that have been brought to court, drawing on thousands of pages of legal filings and dozens of interviews with attorneys, psychologists and former detainees.

The outcomes documented by that review have raised questions about a system meant to control men too seriously ill to control themselves. A federal appeals court in Richmond, Va., has already called delays in bringing the men to trial "troubling," and suggested that they could raise concerns about the detainees' constitutional right to due process. And Rep. Jim Sensenbrenner, R-Wis., one of the law's key supporters, said "there will be somebody who will have to answer" for them.

"We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime," said Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital. "If it's going to be done, it has to be done in a just and fair manner."

Many of the men the government sought to detain have been found guilty of molesting children or brutal sexual assaults. One killed a woman. U.S. Bureau of Prisons psychologists certified that the men also suffer from mental abnormalities making them "sexually dangerous," a determination that keeps them locked up while their cases are reviewed. By law, a federal judge must ultimately decide whether the government can prove the inmate is too dangerous to be released. Worst of the worst

But in case after case, those determinations have come into question. In at least two cases, the government could not prove the men had committed crimes serious enough to justify committing them. Others had not been found guilty of a "hands-on" sex offense in decades. Some psychological assessments failed to fully account for men's ages, a key factor when assessing risk.

March 18, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Tuesday, March 13, 2012

Wisconsin Supreme Court addresses registration requirements for homeless sex offenders

As reported in this local press article, which is headlined "Court rules for homeless sex offender who didn't register address," today the Supreme Court of Wisconsin addressed the registration requirements for homeless sex offenders. Here are the basics:

William Dinkins Sr. spent nine years in prison for a sex crime, so he had to register as sex offender before he got out in 2008.  But Dinkins had nowhere to go, and no address to provide within 10 days of his release, so he was  charged and convicted of a new felony— violating the sex offender registration law.

The Court of Appeals reversed and on Tuesday the state Supreme Court upheld that decision.  "In isolation, the penalty subsection of the statute appears to criminalize the failure to provide required information — without regard to the registrant's ability to provide that information," the court found.

The state argued that Dinkins could have listed a park bench or some other street location where he intended to sleep in order to comply with the law.  The majority opinion makes clear that not all homeless offenders would be exempt from registration, but that listing a bench or doorway would be an unreasonable interpretation of the law in Dinkins' case.

Justice Annette Ziegler, in a harsh dissent joined by Justice Michael Gableman, accuses the majority of creating "a registration loophole for arguably some of the most dangerous sex offenders: those whose whereabouts are unknown and who are otherwise not subject to supervision by the Department of Corrections."

All the opinions in Wisconsin v. Dinkins, which are available at this link and run more than 50 pages, make for interesting reading concerning an issue that is arising in nearly every jurisdiction.

In unrelated (but weirdly connected) news, this other new story discusses an effort by a private company to turn homeless people into wireless network providers under the headlined "Homeless people turned into walking Wi-Fi hotspots in 'charitable experiment'."  Perhaps we might kill two bird with one stone by forcing homeless sex offenders to become Wi-Fi hotspots and then enable their tracking via this internet connection. And though this may all sound like a joke, if homeless sex offenders were to become a means for people to get free and fast internet access, perhaps more people would be willing to have these sex offenders in and around their neighborhoods.

March 13, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

Thursday, March 08, 2012

"From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws"

The title of this post is the title of this new article now available via SSRN by Professor Audrey Rogers. Here is the abstract:

Child pornography circulating in cyberspace has ballooned into the millions.  To punish this flood, the law must accurately delineate culpable conduct.  Technology such as peer-to-peer networks has erased the divisions among traders of child pornography, and, therefore, the differentials in punishment have lost their underpinnings.  The current sentencing controversy surrounding child pornographers is merely the tip of the iceberg of the larger need to revamp the offenses themselves.

This paper provides a framework for a normative critique of the offenses and their sentences. It suggests the law could better reflect technology by comporting with a refined harm rationale that rests on the fundamental injury to the victim’s dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention’s ban on photographs of prisoners of war, this paper states all traders in child pornography violate the rights of the children depicted and therefore inflict harm, albeit at different levels. Accordingly, the paper proposes three categories: producers, traders, and seekers of child pornography with base sentences varying accordingly.  Starting at the same base level, the Sentencing Commission could then propose enhancements or departures to distinguish among the traders and their individual culpability.

March 8, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing, Web/Tech | Permalink | Comments (18) | TrackBack

Monday, March 05, 2012

Super Tuesday meets sex offender panic in Virginia

With Super Tuesday on my mind (and lots of political ads on my TV), I found notable this local article from Virginia headlined "Schools Take Precautions as Voters Head to the Polls."  Here are excerpts:

When your child heads to school Tuesday, they could be coming dangerously close to a sex offender.  The Republican presidential primary is Tuesday, and since schools often serve as polling places, they have to allow all registered voters in -- even sex offenders.

It's a touchy topic.  Four schools in Charlottesville, two in Greene County, five in Orange County, and several more across the state are acting as voting precincts for elections, with schools in session.

But a lot of people wonder why sex offenders are allowed to vote on school property in the first place.  When schools open their doors for classes, parents know the law prohibits sex offenders from coming in.

In Virginia, it's clear -- every adult convicted of a sexually violent offense is prohibited from entering or being present during school hours and during school-related activities. However, that law does not apply if the offender is registered and qualified to vote, and is coming on school property solely to cast their ballot.

It's a provision that has parents like Janet Ball worried.  "As a mother and a grandmother, I do not want a sex offender anywhere near that school, no matter what," she said....

School officials don't anticipate any type of contact at all between their students and voters.  Doors will be locked from the gym to the school and extra hands will be on deck to keep voters away from kids.

Jeck even went on to explain that they are using this as a teaching to tool to help kids understand what all goes into the voting process, but a lot of people say keeping voters away from students isn't good enough.  They want the law changed to keep sexual predators away from schools at all times.  "I think that they should be provided with an absentee ballot, that would take care of this issue," said voter Virginia Ferrell.

"But that's been the law, they have been allowed to in the state of Virginia for years, so hopefully that won't be an issue because you always worry you know, being a mother and grandmother myself, you constantly worry," said Greene County Registrar Sandra Shifflett.

On a positive note, the voting exception is only granted to those sexual offenders who have not been convicted of a felony.  Anyone with a felony has their right to vote taken away all together.

This story strikes me as a truly great (aka truly terrible) example of sensationalized sex offender panic reporting.  The first sentence asserts that kids on election day could be coming "dangerously close to a sex offender," but later the article notes that school official "don't anticipate any type of contact at all between their students and voters," and it ends by noting that anyone convicted of a felony is not even able to vote in Virginia.  (That said, given all the SuperPAC commercials I have seen attacking one candidate for supporting ex-felon voting rights, perhaps the local media is wise to alert parents about the risk of hordes of disenfrachised Virginia sex offenders storming the polling places in Virginia to try to find a way to vote for Rick Santorum.)

March 5, 2012 in Sex Offender Sentencing | Permalink | Comments (25) | TrackBack

Friday, March 02, 2012

"Man Gets 2 Years For Semen Sample At Sunflower Market"

The title of this post is the headline of this local report of a federal sentencing in New Mexico. Here are some of the distasteful details:

A man has been sentenced to federal prison for tricking a woman into tasting his semen at the Sunflower Market.

Police arrested former Sunflower Market employee Anthony Garcia for putting his own semen onto a spoon and tricking a woman into tasting it.  Garcia told the judge Thursday that he didn't know the consequences were going to be high, and he apologized to the victim and Sunflower Market.

However, in a rare move, the judge sentenced Garcia to 24 months in federal prison, which is more than the 12 to 18 months expected.  "It doesn't happen a lot.  A judge really has to be particularly concerned with the kind of offense conduct to go up," said U.S. District Attorney Ken Gonzales.

Prosecutors said Garcia tricked four women into sampling the semen and watching their reactions, and DNA tests proved Garcia was responsible.  They said that Garcia's criminal history also factored into the stiffer penalty.

"There is one incident in a local Walmart where he flashed his private parts, where he flashed a young lady who was in the store," Gonzales said.  Gonzales said Garcia also flashed a jogger on the Bosque.

Before she handed down the sentence, the judge told Garcia that what he did was despicable, heinous and horrendous. At one point, the judge told Garcia she's practically speechless in trying to articulate just how offensive it is....

Garcia has been ordered to serve his sentence at the Bureau of Prisons in Stafford, Ariz. He's also ordered to take psychosexual evaluations and undergo sex offender treatment Garcia has a case pending in district court of criminal sexual contact of a minor, kidnapping, and bribery, which is set for trial in April.

There are a lot of interesting legal elements to this case, including the remarkable fact that the guidelines recommended such a low prison sentence for this "despicable, heinous and horrendous" behavior and yet often recommends a sentence many, many years longer for downloading child porn.  Perhaps this case represents one of those rare examples in which the applicable guidelines actually recommend a sentence that is insufficient to achieve the 3553(a)(2) punishment purposes.

Especially because it is late on a Friday afternoon after a long week, I hope folks do not find this sentencing story to leave them with a bad taste going into the weekend.  (Sorry, lame and tasteless jokes here are just too easy.)

UPDATE:  This news report about the sentencing (which looks like a reprint of a Justice Department press release) explains the federal charges to which this defendant pleaded guilty:

Thursday afternoon, a U.S. District Judge in Albuquerque sentenced Anthony Garcia, 32, of Albuquerque, to a 24-month term of imprisonment for his conviction for adulterating food with semen and making false statements to federal investigators during a criminal investigation. Garcia will be on supervised release for three years after completing his prison sentence. Garcia also was ordered to pay restitution to the victim of his criminal conduct. Garcia was arrested on July 13, 2011, based on a two-count indictment charging him with (1) adulterating food with semen; and (2) making false statements during the course of a federal investigation. Garcia has been in federal custody since his arrest.

March 2, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Thursday, March 01, 2012

First Circuit jumps into circuit split in affirming child porn restitution award

In a long discussion at the end of a long opinion, the First Circuit yesterday weighed in on the various statutory issues that arise when restitution is sought as part of the punishment for a child porn downloader.  Folks following this issue, which has split the circuits in various ways, should read the full opinion in US v. Kearney, No. 10-2434 (1st Cir. Feb. 29, 2012) (available here), and here are some notable snippets:

Under § 2259, restitution may only be awarded to a "victim," which "means the individual harmed as a result of a commission of a crime under this chapter." 18 U.S.C. § 2259(c). Kearney contends that it is "unclear" that Vicky is a victim of Kearney's conduct, with little explanation.

Vicky is plainly a victim of Kearney's crimes.  Any argument that Vicky has not suffered harm as a result of Kearney's crimes defies both fact and law....

It is clear to us that Congress intended some causal link between the losses and the offense to support the mandated restitution.  However, in this statute, Congress also did not specify the level of causation except in one place -- the catch-all clause of the definition of losses, 18 U.S.C. § 2259(b)(3)(F).

With the exception of only a Fifth Circuit panel (which relied on the difference in language between the catch-all clause and the other clauses) in an opinion which has been vacated for rehearing en banc, In re Amy Unknown, 636 F.3d at 198-201, all other circuit decisions have said they interpret the statute as using a proximate causation standard connecting the offense to the losses.... The government does not dispute that a proximate cause test applies.

This seeming agreement on a standard suggests more harmony than there is.  On rather similar facts the circuits have reached different outcomes in applying the proximate cause test, and those outcomes cannot be entirely explained by differences in the facts of record. Compare Monzel, 641 F.3d at 537-40 (finding proximate cause but remanding to determine the amount of harm so caused), and McDaniel, 631 F.3d at 1209 (holding that the district court did not clearly err in finding proximate cause), with McGarity, 2012 WL 370104, at *37-38 (finding that proximate cause was not established); Aumais, 656 F.3d at 154-55 (same), and Kennedy, 643 F.3d at 1263-65 (same).  In our view, any proximate cause standard must be understood and applied in terms of the precise language of the statute and the clear intentions of Congress....

The restitution statute was enacted against a body of Supreme Court case law explaining the type of harm caused by distribution and possession of child pornography, including psychological harm, as discussed above.  These cases make clear that injury to the child depicted in the child pornography, including injury that will require mental-health treatment, is a readily foreseeable result of distribution and possession of child pornography.

March 1, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack

Monday, February 27, 2012

Trio of notable sentencing losses by child porn defendants in Sixth Circuit

The Sixth Circuit has, just in the last two business days, handed down three notable published sentencing opinions in child porn cases.  For a variety of reasons, anyone following this area of federal sentencing ought to find time to review the trio.  But, as explained at the end of this post, such a review will not leave one with much confidence about modern federal sentencing justice in these kinds of cases.

Based on a too-quick review of the trio, the opinion in US v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (available here), strikes me as the most consequential because it reverses a below-guideline sentence as substantively unreasonable in an opinion that starts this way:

Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer.  Some of the images involved the bondage, torture, and rape of prepubescent children.  Under the Sentencing Guidelines, Robinson’s recommended sentence was 78 to 97 months’ imprisonment.  The district court rejected that recommendation and imposed a sentence of one day in custody, a term of supervised release of five years, and a $100 special assessment.  The United States contends that Robinson’s sentence is both procedurally and substantively unreasonable.  We agree that the sentence is substantively unreasonable, and vacate his sentence.

US v. Cunningham, No. 10-3092 (6th Cir. Feb. 24, 2012) (available here), covers some similar ground in the course of affirming a (within-guideline) sentence in an opinion that begins this way:

Defendant Thomas Cunningham appeals the district court’s judgment sentencing him to concurrent prison terms of 121 months and 120 months after he pleaded guilty to three child pornography offenses, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), and 2252A(a)(5)(B).  Defendant raises assignments of error with several procedural and substantive aspects of the district court’s sentence.  Because the district court’s imposition of Defendant’s sentence was comprehensive and legally sufficient, we AFFIRM.

US v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (available here), involves a similar defendant convicted and sentenced for child porn possession, but the sentencing issues raised (and deemed waived) on appeal concerned conditions of supervised release (perhaps because the defendant worked out a plea deal in which he got only a 30-month sentence for his kiddie porn offenses). 

There is so much that might be said individually about each of these cases and what they reveal about the child porn guidelines and/or appellate review for reasonableness.  But I find most remarkable that these opinion create the impression that defendant Cunningham may have been the most mitigated of these three offenders, even though he had the highest guideline range (121-151 months) and received the longest prison term (121 months). 

Based on points discussed by the Sixth Circuit, defendant Robinson arguably is a much more serious offender than defendant Cunningham, but he faced a much lower guideline range (78-97 months) which means that, even after today's reversal of his one-day prison sentence, on resentencing  defendant Robinson is still very likely to get a much shorter prison sentence than defendant Cunningham. 

Finally, because defendant Ferguson's lawyer was apparently able to put together a sweet plea deal, defendant Ferguson is now likely already out of federal prison even though there are facts set forth in his case which might suggest he could well pose more danger to the public than the others.  I am not sure just how or why 30 months was set at the fixed sentence in his case, but the outcome even on appeal provides further proof that "winning" sentencing arguments at the plea bargain stage may prove much more important and even more enduring in these cases than "winning" at the sentencing stage.

Short summary: sentencing in kiddie porn downloading cases are even more of a mess than one can reasonably assess.

February 27, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack

Tuesday, February 21, 2012

Federal judge finds unconstitutional broad state law limiting sex offender internet activity

Thanks to this new post by Eugene Volokh at his conspiracy, I just learning of a notable new ruling concerning an issue that seems destined to be the subject of much constitutional litigation in lots of different flavors in the years to come.  The post is titled "Federal District Court Strikes Down Ban on Much Internet Activity by Registered Sex Offenders," and here are snippets and links:

A Louisiana statute bans much Internet activity by registered sex offenders who had been convicted of child pornography or other sex crimes involving children (or of video voyeurism); the law, like most other laws dealing with sex offenders, includes within its coverage sex offenders who are no longer in prison or on probation. The law bans “using or accessing of social networking websites, chat rooms, and peer-to-peer networks” by such offenders, unless “the offender has permission to use or access social networking websites, chat rooms, or peer-to-peer networks from his probation or parole officer or the court of original jurisdiction.”  And the law defines the prohibited sites very broadly...

This blog would therefore qualify as a “chat room,” as would any newspaper site that allows reader comments.  Any service that lets people set up their own Web pages would qualify as a “social networking website.”

Last Thursday, a federal district court struck down the law, holding that it was unconstitutionally overbroad.  The court therefore did not have to decide whether a law that was more focused on registered sex offenders’ communications to minors, or that were especially likely to be seen by minors rather than by adults, would be constitutional.

The court also rejected, for two reasons, the argument that the exception for any offender who got “permission … from his probation or parole officer or the court of original jurisdiction” narrowed the law sufficiently: First, the law didn’t impose any standards that the permission-granting authority would use. (Such standardless discretion has often been held to be unconstitutional where First Amendment rights are involved.) Second, it isn’t clear how a defendant who isn’t on probation or parole could get permission from the court of original jurisdiction, since some such courts might not (under the law of the jurisdiction to which the court belongs) have the authority to do or say anything more with regard to defendants whose sentences have been completed.

The court’s analysis seems quite right to me.  I would think that even narrower restrictions would be unconstitutional as to people who have finished serving their sentences (though the matter isn’t an open and shut, and raises interesting — though imperfect — analogies to the restrictions on the Second Amendment rights of felons and some misdemeanants who have finished serving their sentences).  But certainly restrictions that are this broad are unconstitutional.

February 21, 2012 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, February 15, 2012

Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing

As mentioned in this prior post, today was the first day for two big full-day public hearings before the US Sentencing Commission in DC.   Today was "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing."

I suspect a lot of interesting testimony was presented, and I hope any reader who were in attendance might consider posting a comment with any notable observations.  Helpfully, the USSC has posted the submitted written testimony of the witnesses via links to the official agenda, and I just had a chance to review the joint submission by the witnesses from the Justice Department. There is much of interest in this testimony (and in all the other linked testimony), but I thought these passages were especially worth spotlighting in light of controversies over application of the current federal child porn guidelines:

We believe the sentencing guideline, U.S.S.G. § 2G2.2, poses some challenges to the successful handling and sentencing of child pornography cases.   This guideline has existed in its current version more or less since 2003.   Whether or not in 2003 it accurately calibrated the seriousness of the offenders, our experience today tells us two things: first, the guideline has not kept pace with technological advancements in both computer media and internet and software technologies; and second, there is a range of aggravating conduct that we see today that is not captured in the current guideline.  As a result, prosecutors, probation officers, and judges are often assessing these cases using a guideline that does not account for the full range of the defendant’s conduct and also does not adequately differentiate among offenders given the severity of their conduct....

[T]he Commission should consider whether § 2G2.2’s existing specific offense characteristics should be revised and consolidated to bring them in line with today’s reality, and whether new specific offense characteristics should be added to better differentiate among offenders based on their offense severity and risk to children.

There are several characteristics that could be taken into account in a revised guideline. The Commission could add a provision that addresses the harm caused by distribution such as that by P2P technologies.  The Commission could also consider adding specific offense characteristics for image severity that address images of bestiality as well as images of infants and toddlers.  As for the enhancement for the quantity of images, the image table might be revised to reflect the plain reality that offenders today can amass collections, not of hundreds of images, but tens, or even hundreds, of thousands of images.

The Commission could consider adding new specific offense characteristics to better differentiate among offenders, such as by accounting for offenders who communicate with one another and in so doing, facilitate and encourage the sexual abuse of children and production of more child pornography, as well as for offenders who create and administer the forums where such communication is taking place.  The Commission could also consider a specific offense characteristic that addresses the length of time the offender has committed the offense to distinguish those offenders who have gotten away with their crime for years from those who may have just begun committing these crimes.   The Commission could also consider recognizing variations in the sophistication of the criminal conduct to appropriately address the more technologically sophisticated offenders who might use multiple internet technologies to collect child pornography, or who might use sophisticated measures to avoid being detected by law enforcement, or who are members of a group dedicated to child sexual exploitation.  By considering these types of changes, the Commission could improve § 2G2.2’s ability to meaningfully differentiate among offenders based on the severity of their offense conduct and the risk they pose to children.

February 15, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (26) | TrackBack

Sunday, February 12, 2012

Timely discussion of federal judicial concerns with guideline sentences for kiddie porn downloaders

Today's Boston Globe has this notable article on a controversial component of the federal sentencing guidelines.  The piece is headlined "US judges balk at rigid child porn sentences; Say guidelines often demand punishment beyond severity of crime."  Here are excerpts:

In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines....

Just last month, a federal court judge in Boston sentenced a Dedham man to 21 months in prison for possession of child pornography -- far lower than the 63 months he faced under sentencing guidelines, and even lower than the 30 months prosecutors had recommended as part of a plea deal.  The judge who pronounced the sentence was US District Court Judge Patti B. Saris, who also happens to chair the Sentencing Commission. “As far as I’m concerned, there are some problems with the guidelines," she said in open court in issuing the sentence.

In another example, US District Court Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.

The judges’ persistent departure from the guidelines for child pornography offenses has caused such a stir that the US Sentencing Commission has agreed to examine them again, listing the endeavor as a priority.  A public hearing is set for Feb. 15 in Washington....

Prosecutors acknowledge that the guidelines should be reconfigured to better reflect a defendant’s culpability.  But they maintain that any changes to how the guidelines are calculated should not affect the actual scale of the sentences.  They say Congress -- and society -- have called for the toughened penalties for the crime.

“There’s been recognition nationwide that there’s been an epidemic," said James Lang, chief of the criminal division for the US attorney’s office in Massachusetts. “There is an exploitation [of children] that goes on every time those photos are shared."

Congress has been so aggressive in its efforts to toughen child pornography sentencing guidelines over the last decade that it overrode the Sentencing Commission’s edicts for the first time in its history, in 2003.  The changes effectively doubled what the average sentence for possession of child pornography had been in the two previous years, according to a Sentence Commission study, from 28 to 54 months.

But within the legal community, there has since been a growing chorus of criticism from those who say the punishment is too great, even for such a universally reviled crime. “The sentences are excessive, and the issue is one that could be modified," said former US senator Arlen Specter of Pennsylvania, who has also served as a prosecutor.  He co-authored a journal in a law trade magazine in October calling for sentencing reforms.  “It’s important to justice.  But it’s hard to do, because child pornography is so highly emotional."...

Opponents of the guideline argue that the additional penalties -- known as enhancements -- are inherent factors in the crime, and unfairly increase the guidelines.  The guidelines, for instance, call for additional penalties if a computer was used in the crime, and for a further enhancement if the child depicted in the images is prepubescent or under 12 years old -- factors that exist in more than 90 percent of the cases, according to Sentencing Commission data.  Also, anyone using a file-sharing network could fall under the distribution category because their images are open to anyone, even if they do not purposely send them out.

With added enhancements for sadistic or violent images, and for increased penalties when more pictures are involved, a defendant could face a sentence of 20 years in prison for receiving child pornography -- higher than guidelines for crimes involving use of a gun or physical violence or abuse.

Federal prosecutors defend the length of prison time, arguing that it protects the young children who are the victims in such cases.  Lang acknowledged that the sentencing enhancements should be reconfigured to reflect the way the crime is carried out.  A defendant should face tougher penalties for running a chat group, rather than simply being involved in the chats, for instance.  Defendants should also face tougher sentences according to the ages of the victims in the photos.

Prosecutors argue that the public, and judges, should make no distinction between those who possess pictures and those who produce them, pointing to a case out of Milford in which the discovery of child pornography images led to the prosecution of an international child porn production ring.  More than 100 young children have been identified and removed from dangerous environments, according to prosecutors.

This companion piece in the Globe reports on a number of cases in which child porn offenders received sentences well below applicable guideline ranges.  As noted in the main article, the US Sentencing Commission has a big public hearing scheduled for this coming Wednesday to discuss these and related issues concerning the child porn guidelines.  I am especially interest to see what the Justice Department says to the USSC about these matters and how the guidelines might be modified to foster more judicial respect for the sentences recommended in these cases.

February 12, 2012 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, February 08, 2012

Two big public hearings on tap for US Sentencing Commission next week

As reported on its website and in official notices here and here, the US Sentencing Commission has planned two full-day public hearings for next week in DC.

The first day of hearings, slated for February 15 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing." The second day of hearings, slated for February 16 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker."

I have the great honor and privilege of being one of the invited witnesses for the second day of these hearings, and I hope to post my written testimony once I finish writing it.  I also expect the USSC will post the submitted written testimony of other witnesses before long, too.  In the meantime, readers are welcome (and, in fact, encouraged) to make predictions about what various witnesses are likely to say to the Commission on these topics and what member os the USSC might say in response.

February 8, 2012 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, February 06, 2012

Eleventh Circuit affirms life sentences, but vacates restitution award, for child porn ring

The Eleventh Circuit has a very lengthy opinion today in US v. McGarity, No. 09-12070 (11th Cir. Feb. 6, 2012) (available here), which eventually gets around to affirming life sentences given to participants in a massive kiddie porn ring. Here is the literary start to the opinion:

If “[a]ll the world’s a stage” as Shakespeare wrote, this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography.  We are concerned here with the fruits of a cooperative, multi-national criminal investigation directed at tracking a sprawling international child pornography ring, comprised of as many as 64 known individuals sharing more than 400,000 images and 1,000 videos of child pornography across at least six countries. Ultimately, a joint task force arrested fourteen members of the ring and charged them with offenses relating to child pornography, although we have before us only the appeals of the following seven defendants...

This opinion would not be all that blog-worthy but for a lengthy discussion of all the issues surrounding child porn restitution awards under federal law which start on page 97 of the opinion.  Here is a key paragraph from that discussion:

[W]e make two findings here: 1) we affirm our holding in McDaniel that end-user defendants may proximately cause injuries to the victims of sexual child abuse; and 2) for proximate cause to exist, there must be a causal connection between the actions of the end-user and the harm suffered by the victim.  The first finding has by now been adequately discussed.  As to the second finding, any other result would undermine the express wording of § 2259.  Proximate cause is required by the specific language of the statute. Since the role of the judiciary is to “apply the text, not to improve upon it,” Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126 (1989), we apply the statute as written, with its requirement of proximate cause.  Any other result would turn 108 restitution for possession of child pornography into strict liability.  We, like most of our sister circuits to consider the issue, decline such an interpretation.

February 6, 2012 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, February 01, 2012

Notable recent state child porn sentencing developments in South Dakota

Thanks to this brief new AP article, which is headlined "South Dakota child pornography convict gets 100-year prison sentence cut about in half," I learned about a fascinating ruling from last year by the South Dakota Supreme Court in South Dakota v. Bruce, 2011 S.D. 14 (SD April 6, 2011) (available here).

Working backwards, here is the latest sentencing news in this notable case:

A 100-year prison sentence handed down to a Pierre man convicted of possessing child pornography has been cut about in half.  The South Dakota Supreme Court last year ruled that the initial sentence for 48-year-old Troy Bruce was excessive and ordered a new sentencing.

KCCR radio reports that Judge Mark Barnett on Tuesday sentenced Bruce to a total of 55 years in prison.  Bruce will be eligible for parole after serving one-fourth of the sentence. He also was given credit for about two years he already has served behind bars.

This report prompted me to wonder if the South Dakota Supreme Court had actually deemed a child porn sentence to be unconstitutional, and the Bruce ruling nearly does.  Here are notable snippets from the majority opinion in Bruce:

Bruce was convicted of possessing one DVD containing fifty-five videos of child pornography.  He received the ten-year maximum sentence on all fifty-five counts.  Forty-five of the sentences were suspended, but the sentences on the remaining ten counts were to be served consecutively resulting in a total sentence of 100 years.  Bruce contends that this sentence was cruel and unusual punishment under the Eighth Amendment....

When such statutory ranges are established, the legislative intent is that "the more serious commissions of [the] crime . . . deserve sentences at the harsher end of the spectrum.... Imposing the maximum possible term where the circumstances of the crime only justify a sentence at a lower range violates legislative intent to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender.” Bonner, 1998 S.D. 30, ¶ 25.   Further, we now adopt Justice Konenkamp’s recommendation “that courts look at two additional determinants when assessing the seriousness of a child pornography offense: (1) the specific nature of the material and (2) the extent to which the offender is involved with that material.” Blair, 2006 S.D. 75, ¶ 83....

With respect to the seriousness of this offense, the pornography involved much more than lewd images but less than the worst possible material covered by the statute....

With respect to Bruce’s involvement, he was convicted of possessing the one DVD containing fifty-five images. Although thirty other discs containing child pornography images were found, the court “consider[ed] Counts 1 through 10 as one act” for the purpose of determining parole eligibility. Additionally, there was no evidence that Bruce manufactured or distributed child pornography. Finally, there was no evidence suggesting that Bruce had ever sexually abused a child, had sexual contact with a child, or solicited a child for sexual images. This was a case of simple possession of images.

Bruce’s character and history reflect that he was a divorced forty-eight year old with three children, one who was still a minor. Other than a careless driving offense, Bruce had no prior criminal history. He was a former member of the National Guard and a veteran who had served in Saudi Arabia and Iraq during Operation Desert Storm....

Bruce’s maximum sentences were not reserved for the most serious combination of criminal conduct and background of the offender. We therefore conclude that this is the exceedingly rare case in which Bruce’s sentence was grossly disproportionate to the “particulars of the offense and the offender.” See Bonner, 1998 S.D. 30, ¶ 25. Because Bruce did not present comparative information with which to conduct an intra- and interjurisdictional analysis, we reverse and remand to the circuit court to consider that evidence on resentencing.

A concurring opinion in Bruce adds these notable observations:

In South Dakota, gross disparity in the sentence length for possession of child pornography exists.  For example, in State v. Martin, 2003 S.D. 153, 674 N.W.2d 291, the defendant’s sentence for possession of child pornography was a term of two years in the penitentiary with all but forty-five days in jail suspended subject to additional conditions. In the present case, the aggregate sentence is a term of 100 years in the penitentiary. Yet the facts of the two cases are similar: both involve the possession but not the manufacture or distribution of multiple computer-based images of child pornography. The difference in the length of the sentences for these similar crimes is shocking.

I think it is safe to assert that, not just in South Dakota, but all across this great nation, "gross disparity in the sentence length for possession of child pornography exists."  I have seen and heard of many state (and few federal cases) in which a child porn possession conviction results in only months in prison, and yet a few months ago in Florida (as reported here) Daniel Enrique Guevara Vilca received a sentence of life without the possibility of parole for mere child porn possession!  What a sad and disturbing mess.

February 1, 2012 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (28) | TrackBack

Tuesday, January 31, 2012

Fascinating AP update on efforts by "Amy" to get restitution from child porn downloaders

This new AP article, headlined "Court to weigh restitution for child porn victim," reports on the news I covered in this post last week, namely that the Fifth Circuit has called for en banc review of whether and how federal law permits a child depicted in illegal porn to secure a restitution award in the sentencing of an offender who only downloaded that child's image. The AP article adds important back-story to the story with this accounting of the child's partial success in obtaining restitution to date:

A federal appeals court in New Orleans has agreed to rehear two cases in which a victim of child pornography sought restitution from men who viewed sexually explicit photographs of her on the Internet. The victim in both cases, who is identified only as a woman named "Amy," was a young child when her uncle sexually abused her and widely circulated images of the abuse, according to court records....

Amy, now a woman in her early 20s living in Pennsylvania, has filed more than 700 requests for restitution across the country since 2009, collecting more than $1.5 million from dozens of individuals, according to James Marsh, one of her attorneys.

The National Center for Missing and Exploited Children says its analysts have found more than 35,000 images of Amy's abuse among the evidence in more than 3,200 child pornography cases since 1998.

Under the Crime Victims Rights' Act, Amy sought more than $3.3 million in restitution from Paroline to cover the cost of her lost income, attorneys' fees and psychological care.

The AP article also reports that the full Fifth Circuit will not hear argument in the case until May, which in turn means it is unlikely we will get a ruling from the en banc court until probably the fall at the earliest.

January 31, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Sunday, January 29, 2012

"Should Teens Be Jailed for Sex Offenses?"

The title of this post is the headline of this lengthy recent piece in The Daily Beast, which carries this subheading: "Parents are fighting powerful laws that imprison teens for sex.  Prosecutors say kids should respect the law. Meet one young Romeo who didn't — and spent six years behind bars." The full piece gets started this way:

Francie Baldino, a mother of two from Royal Oak, Mich., can tell you the day she became an activist against America’s sex-offender laws.  It was the day her teenage son went to prison — for falling in love with a teenage girl.  “The prison term was unthinkable,” says Baldino. “He was just a dumb kid.”

Her son, Ken, was an 18-year-old senior in high school when he was arrested for having sex with his girlfriend, a 14-year-old freshman, in 2004.  The age of consent in Michigan is 16.  He got sentenced to a year in jail and three years’ probation.  After that, when the two teens resumed their relationship — violating his probation — he got five to 15 years.

His mother is part of a surprising rebellion that has now spread to all 50 states: parents fighting against sex-offender laws — the very laws designed to safeguard their children. These parents argue that the laws are imposing punishments on their high-school sons that are out of proportion to the crime.

Baldino’s son, for instance, spent more than six years behind bars and today must wear a GPS device the size of a box of butter.  Sometimes, he says, it loses its signal and sets off an alarm.  “That’s really helpful when I’m at work,” says the blue-eyed 26-year-old, who wears stud earrings and works at a door-and-window store.

No one keeps a tally of how many cases fall into this category nationwide. But there is one measure of the scale of the movement: there are now more than 50 organizations — at least one in every state — battling against prosecutions like these.  Baldino’s group is Michigan Citizens for Justice, which she says includes more than 100 parents.  Another group in Michigan, the Coalition for a Useful Registry, has around 150 parents as members, it says.  Organizations in other states report similar numbers.  One of the largest, Texas Voices, claims some 300 parents as members.

The questions are difficult: Should the scales of justice be weighted in favor of the young? Is a sex crime somehow less terrible, if it involves teens?   The cases they are fighting are highly complex, charged with emotion, and rarely black-and-white.  The questions are profoundly difficult: Should the scales of justice be weighted in favor of the young?  Is a sex crime somehow less terrible, if it involves teens?  The judge in the Baldino case, Fred Mester, openly acknowledged the complexities.  Referring to his own high-school days when handing down the prison sentence in 2005, he said, “Half my senior class … were dating freshman girls, and I suspect half of them would be in here today.”

Prosecutors say it’s simple: kids should obey the law, and parents need to keep their children under control.  Paul Walton, a chief assistant prosecutor in Michigan, says Baldino’s son had only himself to blame: he was an adult, and he chose his own actions. “The court isn’t imposing restrictions because it’s fun — it’s the law,” Walton says.  “You can disagree on the age of consent, but the law says that prior to that age, a person doesn’t have the ability to consent.”

January 29, 2012 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (37) | TrackBack

Saturday, January 28, 2012

Fifth Circuit to review en banc restitution sentences for child porn downloaders

As effectively detailed here at How Appealing, the Fifth Circuit issued two orders earlier this week in which it has called for en banc review of whether and how federal law permits a child depicted in illegal porn to secure a restitution award in the sentencing of an offender who only downloaded that child's image.  Interestingly, these cases had been decided by Fifth Circuit panels back in early 2011; one might speculate that there was an extended debate within the Fifth Circuit before it finally decided to rehear these cases en banc.

Absent congressional changes to applicable law, the issue of restitution awards in child porn downloading cases seems likely eventually to get to the US Supreme Court.  Consequently, I would expect an even further appeal in these cases no matter what the Fifth Circuit ultimately rules when considering this matter as a full court.

Some related recent federal child porn restitution posts:

January 28, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, January 24, 2012

"Out of 747,408 Registered Sex Offenders, How Many Are Actually Dangerous?"

The question in the title of this post is from the heading of this recent posting by Jason Sollum over at Reason.  Here are excerpts (with links) that explain both clauses of the query:

The National Center for Missing & Exploited Children (NCMEC) reports that the number of registered sex offenders in the United States has increased by nearly a quarter in the last five years. The total in the most recent survey was 747,408, up from 606,816 in 2006, the first year NCMEC did a count....  NCMEC CEO Ernie Allen says registration "is a reasonable measure designed to provide important information to authorities and to help protect the public, particularly children." Yet his group does not say how many of the 747,408 people listed on sex offender registries are predatory criminals who actually pose a threat to public safety, probably because it does not know....

Allen avers that "these registries are especially important because of the high risk of re-offense by some of these offenders" (emphasis added).  As I note in [this July 2011] Reason piece, recidivism rates for sex offenders seem to have been greatly exaggerated. In any case, if protecting potential victims is the raison d'etre for the registries, shouldn't they be limited to people who are likely to commit crimes against others?

January 24, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (52) | TrackBack

Monday, January 23, 2012

SCOTUS sorts through applicability of SORNA in Reynolds

Though SCOTUS buzz this morning will surely be dominated by the GPS tracking Fourth Amendment case handed down this morning (the Jones case, in which the defendant sort of prevails via a number of intriguing (yet relatively brief) opinions), the Supreme Court also provided a little extra fun for sentencing fans still trying to make sense of the federal Sex Offender Registration and Notification Act (SORNA). Specifically, via a 7-2 ruling in Reynolds v. US (available here), the Justices provide an explanation about when and to whom SORNA applies to folks who committed sex offense prior to the act. Here is a snippet from the majority opinion by Justice Breyer, which explains the issue and the essence of the ruling:

The federal Sex Offender Registration and Notification Act (Act), 120 Stat. 590, 42 U. S. C. §16901 et seq. (2006 ed. and Supp. III), requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries. §§16912(a), 16913–16914, 16919(a) (2006 ed.). The Act makes it a crime for a person who is “required to register” under the Act and who “travels in interstate or foreign commerce” knowingly to “fai[l] to register or update a reg- istration . . . .” 18 U. S. C. §2250(a). The question before us concerns the date on which this federal registra- tion requirement took effect with respect to sex offenders convicted before the Act became law....

The question before us is whether the Act requires pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions ap- ply to them. We believe that it does not.   For one thing, a natural reading of the textual language supports our conclusion....

Pre-Act offenders, aware of such complexities, lacunae, and difficulties [in figuring out to whom and how SORNA applies], might, on their own, reach different conclusions about whether, or how, the new registration requirements applied to them. A ruling from the Attorney General, however, could diminish or eliminate those uncertainties, thereby helping to eliminate the very kind of vagueness and uncertainty that criminal law must seek to avoid. Cf., e.g., United States v. Lanier, 520 U. S. 259, 266 (1997) (noting that “the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered”).

The dissent authored by Justice Scalia and joined by Justice Ginsburg begins this way and has makes a point about constitutional authority in developing its argument that struck me as blog-worthy:

In my view, the registration requirements of the Sex Offender Registration and Notification Act (Act), 120 Stat. 590, 42 U. S. C. §16901 et seq. (2006 ed. and Supp. III), apply of their own force, without action by the Attorney General. The Act’s statement that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements” to pre-Act sex offenders, §16913(d), is best understood as conferring on the Attorney General an authority to make exceptions to the otherwise applicable registration requirement....

Indeed, it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable....

January 23, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, January 22, 2012

Effective coverage of the high costs of sex offender civil commitment program in Washington state

Civlcomm_flowchartThe Seattle Times has a very interesting set of pieces today discussing the intricate procedures and high (runaway?) costs involved in the operation of Washington's now-two-decades-old civil commitment program for sex offenders.   This paper and its reporters merit kudos for conducting this in-depth investigation of the longest-running sex offender civil commitment program, and it will be interesting to see how policy-makers respond to a report that seems likely to prompt a political firestorm.

The lead piece, available here, has this headline and subheading: "State wastes millions helping sex predators avoid lockup: Washington's civil-commitment program that shields society from the worst sex offenders is burdened with unchecked legal costs and secrecy, The Seattle Times has found."  Here are excerpts from the start of this lengthy article:

In 1990, Washington became the first state to pass a civil-commitment law, detaining offenders who are deemed by a judge or a jury to be too dangerous to set free. Since then, the controversial program has been plagued by runaway legal costs, a lack of financial oversight and layers of secrecy, The Seattle Times has found.

The state has little or no control over the $12 million a year in legal bills — nearly one-quarter of the [Special Commitment Center's] budget. This results in overbilling and waste of taxpayer money at a time when the agency overseeing the center, the Department of Social and Health Services (DSHS), faces deep budget cuts.

The civil-commitment law has created a cottage industry of forensic psychologists who have been paid millions of dollars for evaluating sex offenders and testifying across the state.

The Times determined that the busiest and best-paid experts include two psychologists who were fired in California, another who has flown here at state taxpayer expense from his New Zealand home, and one who has been paid $1.2 million over two years, some of it for work on cases in which judges questioned his credibility.

Defense teams have hired multiple psychologists — each charging tens of thousands of dollars — for a single case. In at least eight King County cases, the public paid for three or more forensic experts to evaluate the offender or testify for the defense. The state typically hired one expert. Both sides accuse each other of expert shopping.

Defense lawyers repeatedly delay trials, seeking continuances and appeals, which push costs up. In King County, it takes on average 3.5 years for a commitment case to go to trial; several have taken close to a decade. Meanwhile, offenders are held at McNeil Island, by far the most expensive confinement in the state at $173,000 a year per resident.

It takes up to $450,000 in legal costs to civilly commit a sex offender in King County. Defense outspends prosecution almost 2-to-1, says David Hackett, prosecutor in charge of civil commitments.

How some of the money is spent is a mystery. King County judges, at the request of defense attorneys who cited lawyer-client privilege, have indefinitely sealed hundreds of documents authorizing funds for defense experts. The Times fought successfully to get many of these records unsealed, which included psychologists' names and their fees. Hackett said the program needs a financial overhaul. "It's a morass," he said. "We've left the door to the candy store wide open."

Here are links to some of the companion pieces run with this lead article:

January 22, 2012 in Criminal Sentences Alternatives, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, January 21, 2012

Tenth Circuit (grudgingly?) upholds ruling striking down Albuquerque ban on sex offenders in libraries

Late yesterday, a Tenth Circuit panel affirmed in Doe v. City of Albuquerque, No. 10-2102 (10th Cir. Jan. 20, 2012) (available here), a district court's ruling striking down a local ban on registered sex offenders entering public libraries. But, as the start of the ruling hints, it almost seems as though the panel had wished it had the evidence needed to rule the other way:

This appeal presents us with a difficult issue of first impression. John Doe, a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City’s public libraries.  The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of Doe.  The court concluded that the ban burdened Doe’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe’s contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum.  The City appeals both the denial of its motion to dismiss and the grant of Doe’s summary judgment motion.

Complicating our inquiry is the fact that the City, relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to Doe’s summary judgment motion.  Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information.  Had the City done so, it is not difficult to imagine that the ban might have survived Doe’s challenge, for we recognize the City’s significant interest in providing a safe environment for its library patrons, especially children.  As an appellate court, however, we are bound by the record and the law.  And in this case they require us to affirm the district court.

January 21, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Friday, January 20, 2012

High costs of sex offender civil confinement driving reform talk in Minnesota

This local article, headlined "Cost drives new plan on treating sex offenders," confirms my sense that states may often find it difficult to pay for broad use of civil confinement for sex offenders. Here is how the piece starts:

Citing the high cost of indefinite civil commitment for Minnesota sex offenders, two influential lawmakers will propose a shift to longer prison terms, coupled with intensive -- but cheaper -- treatment.

In addition, the legislators plan to propose a state mental health review court, a move aimed to standardize the civil commitment process for sex offenders and reduce political pressures on local prosecutors and judges, which can be intense in rural communities.

Sen. Warren Limmer, R-Maple Grove, said Thursday that he and Rep. Tony Cornish, R-Good Thunder, are in the final stages of drafting the legislation. He said a team of legislators has spent the past four months reviewing the public safety and civil liberties issues surrounding the more than 600 patients being held indefinitely in the Minnesota Sex Offender Program (MSOP) at Moose Lake and St. Peter.

"The cost is just tremendous, more than $330 a day, as opposed to keeping these offenders in a corrections setting for about $70 a day," Limmer said. "We intend to stay focused on safety, on cost and on the constitutional issues, [but] holding these individuals longer in prison makes sense rather than paying the high cost of civil commitment."

Limmer and Cornish, chairman of the public safety committees in the Senate and House, respectively, attended a packed forum at the William Mitchell College of Law in St. Paul. Human Services Commissioner Lucinda Jesson and Eric Janus, dean and president at William Mitchell, hosted the symposium.

Last spring, Legislative Auditor James Nobles found that the cost of treating Minnesota's sex offenders could be drastically reduced by creating alternative, highly supervised programs similar to those adopted in New York, Texas and Wisconsin. Minnesota is one of 20 states with civil commitment programs, and in 2010 had the nation's highest number of committed sex offenders per capita. "Without releases, Minnesota is susceptible to lawsuits challenging the adequacy of the treatment program," Nobles found.

January 20, 2012 in Criminal Sentences Alternatives, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Tuesday, January 17, 2012

Iowa legislators talking about special nursing home for aging sex offenders

This local story from Iowa, headlined "Lawmakers consider site for elderly offenders," spotlights one way state officials are thinking about dealig with aging (but still dangerous) sex offenders. Here are the basic details:

Iowa may have to establish a special nursing home for elderly sex offenders and other criminals, according to a handful of local lawmakers. "These individuals should not be turned loose," state Rep. Helen Miller, D-Fort Dodge, said Saturday morning. "We will have to have a facility where these individuals will be contained."

Miller and other legislators addressed the issue during an Eggs and Issues forum in Fort Dodge held months after a registered sex offender living at the Pomeroy Care Center in Pomeroy reportedly sexually assaulted another resident of the facility....

In the Pomeroy case, William Cubbage, 83, is accused of sexually assaulting a 95-year-old woman at the care center in August 2011. Cubbage was convicted of sex crimes in 2000, 1997, 1991 and 1987. He moved into the nursing home in November 2010. He was removed from it following the alleged assault and was placed in the Newton Correctional Facility.

In response to a question from the audience, Shaw said the state government may have to buy a small nursing home and staff it with personnel trained to deal with sex offenders.

He noted that Branstad has proposed a law requiring nursing homes to notify families of residents when a sexual offender moves into the facility. Shaw said stronger measures are needed. "We need something with some teeth to it," he said.

Iverson and Miller also said a separate facility for elderly offenders may be needed. Although Cubbage was reportedly ordered by a judge to live in the nursing home, Iverson and Tjepkes said care facilities don't have to accept offenders. Beall said he believes the legislature will take action on the issue of sex offenders in nursing homes this year.

January 17, 2012 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Tuesday, January 10, 2012

Creating circuit split, Eleventh Circuit rejects file-sharing basis for significant child porn guideline enhancement

The Eleventh Circuit has an interesting and seemingly important ruling concerning the application of the child porn federal sentencing guidelines today in US v. Spriggs, No. 10-14919 (11th Cir. Jan 10, 2012) (available here).  Here is the start of the opinion and two key paragraphs from the heart of the ruling:

Appellant Timothy Spriggs pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2).  At sentencing, over Spriggs’s objection, the district court applied a five-level enhancement for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(3)(B) (2010).  Spriggs argues that no evidence supports application of the enhancement. We vacate the sentence and remand because, although we find evidence that Spriggs distributed illicit images, there is insufficient evidence to support the other elements of the five-level enhancement....

The Eighth Circuit applies the five-level enhancement if the defendant “expected to receive a thing of value — child pornography — when he used the file-sharing network to distribute and access child pornography files.”  United States v. Stultz, 575 F.3d 834, 849 (8th Cir. 2009).  Because file-sharing programs enable users to swap files, the court reasoned that no additional evidence is needed to establish the type of transaction contemplated in the Guidelines.

We have a different view, however, of the function and operation of filesharing programs than that of the Eighth Circuit.  File-sharing programs exist to promote free access to information. Generally, they do not operate as a forum for bartering.  For example, file-sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares his files.  The files are free.  Because the transaction contemplated in the Guidelines is one that is conducted for “valuable consideration,” the mere use of a program that enables free access to files does not, by itself, establish a transaction that will support the five-level enhancement.  Accordingly, we disagree with the approach taken by the Eighth Circuit.

January 10, 2012 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Monday, January 09, 2012

Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading

An interesting and potentially important reasonableness review decision was handed down by a Sixth Circuit panel this morning in US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (available here). Folks concerned with the operation of reasonableness review or with child porn sentencing should be sure to read this thoughtful opinion in full. Here is how the opinion gets started along with one of many notable passages from the heart of the opinion:

Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer. Many, if not a majority, of those images and videos depicted 8- to 10-year-old girls being raped by adult men.   Under the Sentencing Guidelines, Bistline’s recommended sentence was 63 to 78 months’ imprisonment.  The district court rejected that recommendation and instead sentenced Bistline to a single night’s confinement in the courthouse lockup, plus ten years’ supervised release.   The United States contends that Bistline’s sentence is substantively unreasonable, arguing that the district court improperly rejected the relevant sentencing guideline as “seriously flawed” and that Bistline’s sentence fails to reflect the factors recited in the sentencing statute.  We agree, and vacate his sentence....

The district court made a number of observations with respect to the seriousness of this offense.  Many of them served to diminish it.   The court did say that the images on Bistline’s computer were “horrendous,” and that the “production of child pornography and the distribution of it is an extremely serious offense, one which should be punished accordingly.”   But notably omitted from that recitation (and virtually unpunished in this case) was the crime of possession of child pornography.   Indeed, the court said there are “significant differences . . . in the degree of culpability in the chain of events that leads to the display of child pornography[,]” with the “most culpable” persons being “those who are involved in actually performing these acts and photographing them.”   We agree with that statement so far as it goes.   That the producers of child pornography are more culpable, however, does not mean that its knowing and deliberate possessors are barely culpable at all.

January 9, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (31) | TrackBack

Saturday, January 07, 2012

Will new federal definition of rape significantly impact approaches to sex crimes and punishments?

The question in the title of this post is prompted by this past week's news that the feds have officially adopted a new rape definition for FBI crime reporting purposes.  The basics are well covered in this entry, headlined "Holder Makes It Official: New FBI Rape Definition Approved," coming from the folks at The Crime Report:

U.S. Attorney General Eric Holder today announced revisions to the Uniform Crime Report’s definition of rape, which the Justice Department says will lead to a more comprehensive statistical reporting of rape nationwide.

Holder said the new definition is more inclusive, better reflects state criminal codes, and focuses on the various forms of sexual penetration understood to be rape. The revision had been urged by women's advocacy groups and was approved by an FBI advisory committee. FBI Director Robert Mueller approved the new official definition on Dec. 21, 2011....

The change has been almost a decade in the making, as The Crime Report previously reported, with a series of advisory and listening meetings on a new definition. The old definition, which was proposed in 1927 and signed into law in 1929, defined rape as "the carnal knowledge of a female, forcibly and against her will." The new definition is: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” This new definition now includes men and boys to provide a fuller picture of rape in America.

A recent Centers for Disease Control Study reported that as many as 1 in 3 women have experienced rape, physical violence or stalking by an intimate partner in their lifetimes, and about 1 in 10 men.

In 2010, the FBI reported 84,767 rapes. The complete numbers for 2011 Uniform Crime Report have not yet been reported, but the FBI issued a preliminary report showing a 6.4 decrease in violent crimes during the first six months of 2011. In addition to forcible rape, violent crimes reported by the UCR also include murder, robbery, and aggravated assault. Experts expect the numbers of reported rape to increase over the next few years once the new tools are fully implemented.

January 7, 2012 in Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

Friday, January 06, 2012

Many states still resisting federal sex offender mandates

This new Stateline piece, which is headlined "States struggle with national sex offender law," provides an effective update on the continued state resistance to federal sex offender provisions from the Adam Walsh Act.  Here are excerpts:

Six years ago, Congress passed what is known as the Adam Walsh Act, aimed at protecting children from predators by collecting sex offender data in a national public registry and requiring those people listed in it to report their movements to law enforcement.  Adam’s law required states to place convicted sex offenders in one of three tiers, based on the severity of their crimes....

The vast majority of states did not comply on time. As the five-year deadline of July 2011 was approaching, only four had met the terms of the law.  The Obama administration issued new guidelines earlier in 2011 that gave states more discretion in implementing the act and clarified how to share information, and in the past year, 12 more states have become compliant.  But most still are not, even though they will lose 10 percent of their justice assistance grants from the federal government in fiscal year 2012 as a penalty for inaction.

It’s not that states are uninformed about the law; it’s that they have substantial objections to it.  Many see it as an unfunded mandate requiring them to spend millions of dollars collecting information and placing it in the national registry.  They are reluctant to bear the cost of updating their own technology to register digital fingerprints, palm prints and DNA, and of paying for the additional time that law enforcement officers would spend processing sex offenders who appear before them in person.

Advocates for juveniles also complain about what would be a lifetime listing for some juvenile sex offenders, which they say goes against any commitment to rehabilitate juveniles, rather than punishing them for long periods of time.

Last month, Pennsylvania became the 16th state to sign on to the act, just barely averting the federal aid penalty. Pennsylvania changed its previous law to add juveniles to its registry and require out-of-state and homeless people convicted of sexual offenses to register with law enforcement....

But many other states are continuing to voice their objections to what the federal law expects of them. Susan Frederick, senior federal affairs counsel at the National Conference of State Legislatures, expects states to continue to press Congress for more discretion about which offenders to place on the three-tiered national registry, and for how long. Currently the law requires that convicted sex offenders, including juvenile offenders, remain in the registry for anywhere from 15 years to life, depending on the severity of their crime.

To ask for modifications in Adam’s law to render it less strict is a politically difficult request. Even in the face of compelling evidence that the federal law needs to be amended if all states are to comply, Congress may be reluctant to make changes. “It’s a political argument, and nobody wants to be seen as soft on sex offenders,” says Frederick. “The parents of these children come to committee hearings and share their stories, and it’s very difficult to look those parents in the eye and say we need to have flexibility for registering offenders.”

In the absence of changes to Adam’s law, however, some states will argue that complying with it is simply not worth the costs. Even though they lose 10 percent of their justice assistance money, that is usually less than they would end up paying for compliance. Ohio, which was the first state to become compliant in 2007, had within two years spent about $10 million just defending itself against lawsuits from offenders sentenced to the registry, according to the Pittsburgh Tribune-Review. In contrast, Ohio would have lost only about $2 million for non-compliance during the same period.

These calculations may be the main reason why other large and budget-challenged states such as Texas, California, and New York have not taken steps to comply. A Texas Senate study conducted in 2010 found that implementing the act in that state would cost about $39 million, in comparison to a loss in federal grants of $1.4 million per year. Texas legislators have also argued that the state’s current sex offender system, which was handling 66,587 registered sex offenders as of June 2011, is already backed up and that imposing another layer of requirements would only add to the strain of struggling law enforcement agencies.

January 6, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Saturday, December 24, 2011

"Do we have a responsibility to use neuroscience to inform [sentencing] law?"

The question in the title of this post involves a minor tweak to the title of this interesting entry at the Practical Ethics blog at The University of Oxford, which concludes with a fascinating case-study and follow-up queries that should be of special interested to sentencing fans:

[C]onsider[] a case that has gained much exposure in the area of NeuroLaw, and was discussed at the beginning of the BBC segment as well as in the Royal Society report (adapted from the Royal society report):

[A man] was found to have developed unusual sexual arousal behaviours and had begun to secretly collect child pornography.  He was eventually removed from the family home for making sexual advances towards his step-daughter, and was subsequently diagnosed with paedophilia and convicted of child molestation. […]

The evening before sentencing, the man was admitted to hospital with a headache and balance problems. Neurological examination, which included magnetic resonance imaging (MRI) revealed a cancerous tumour that displaced the right orbitofrontal cortex. The orbitofrontal cortex is involved in the regulation of social behaviour.... Disruption of this system can result in decision-making that emphasizes immediate reward rather than long-term gain, impairing the subject’s ability to appropriately navigate social situations.

Following examination the tumour was removed and after several days the patient’s balance improved and he was able to complete a Sexaholics Anonymous programme. Seven months later the patient was deemed to no longer be a threat to his stepdaughter and returned home.

Almost a year later, the man reported persistent headaches and that he had begun secretly collecting child pornography again.  Tumour recurrence was revealed by MRI studies and surgery was performed to remove it for a second time. Once again the patient’s behaviour returned to normal after a couple of days.

If it matters to us (in terms of moral responsibility) that the man’s pedophilic behavior seems to result from the compression of his orbitofrontal cortex by the tumor, an interesting set of questions follow....

 1) Before the age of brain scans, the man’s tumor would have gone unnoticed and he would have been punished to the full extent. Indeed, it is likely that tumors have gone unnoticed precisely like this. To what extent does the creation of the technology to detect these morally significant tumors create a responsibility to check for them?

2) Dr. Mackintosh pointed out in the podcast that it is important that the tumor could be removed: “if it had not been possible to remove the tumor, then one would, surely, at least consider the argument that he had to be kept in prison for public protection.” If, as Dr Mackintosh’s qualification and hesitation might suggest, this detainment is to some extent objectionable, then to what extent does the detection of a neurobiological factor in criminal behavior create a responsibility to quickly and vigorously search for ways to avoid this preventive detainment (in this case, develop medical techniques to remove the tumor)?

3) If it is likely that there exist other biological mechanisms that have a similar morally significant impact on criminal behavior, and that individuals are currently being locked away in prison without these mechanisms coming to light, then to what extent does this create a responsibility to research into these other biological mechanisms?

December 24, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Friday, December 23, 2011

Tenth Circuit holds that sex offender's run for the border does not preclude registration requirements

The Tenth Circuit has an interesting sex offender opinion today in US v. Murphy, No. 10-4095 (10th Cir. Dec. 23, 2011) (available here), which gets started this way:

The Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16911–29, requires a sex offender to register and keep the registration current in each state where he resides, works, or studies.  Sex offenders who change their name, residence, employment, or student status, must appear in person in at least one “jurisdiction involved” to inform the state’s authorities of the change. In this appeal we must determine whether a sex offender violates SORNA by abandoning his residence and moving to a foreign country without notifying the authorities of the home state.   We conclude he does.  For SORNA purposes, a sex offender continues to reside in a state after a change in residence or employment, both of which trigger reporting obligations, even if the offender eventually leaves the state.  Therefore, even if an offender abandons his current residence and job with the intention of moving out of the country, he must update his registration to reflect his new status.

Here is the factual back-story that set up this issue for the Tenth Circuit:

Kevin Daniel Murphy is registered as a sex offender in Utah, having been convicted by Utah state courts of aggravated sexual assault and aggravated sexual abuse of a child. Several times since his conviction, he has signed forms acknowledging his duty to notify the authorities upon any change of residence.  In 2007, he was paroled from state prison to the Bonneville Community Correction Center in Salt Lake City.  While residing at Bonneville, Murphy was allowed to work in the community on the condition of restrictive movement, meaning correctional officers transported him to and from his workplace each day.

Despite these precautions, Murphy fled Bonneville a few months after his arrival. Instead of reporting to his employer, he boarded a bus to California and then took a taxi into Mexico.  He ended up in Belize, believing he could escape extradition under that country’s laws.  After living in Belize for six months under the name Dan Murray, Murphy was arrested for lacking proper documentation.  Belize deported Murphy to the United States, where he was returned to Utah.

December 23, 2011 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Tuesday, December 20, 2011

Split Sixth Circuit panel spars over federal child porn sentencing as it affirms within-guideline sentence

Anyone who follows federal child porn sentencing decisions and trends will want to be sure to check out a split opinion handed down today by the Sixth Circuit in US v. Overmyer, No. 10-1716 (6th Cir. Dec. 20, 2011) (available here). The majority opinion authored by Judge Sutton includes these passages, which help explain the issue and the panel's holding:

Leonard Overmyer pled guilty to transporting child pornography and received an 87-month prison sentence.  The district court addressed all of Overmyer’s arguments for a lower sentence and reasonably imposed a bottom-of-the-guidelines sentence.  We affirm....

Overmyer moved for a downward variance, requesting a sentence near the statutory minimum on three grounds: he sought therapy on his own initiative; he expressed remorse for his actions; and he suffered from depression over the impact of the crime on his family.  The court imposed an 87-month sentence, explaining that it agreed with the severity of the child-pornography sentencing guidelines — “that the guidelines themselves measure the appropriate harms” — and that it would not exercise its authority to vary downward based on a policy disagreement with them....

The parties do not dispute the applicable guidelines range, and the district court adequately addressed each of Overmyer’s arguments for a variance.  The judge “recognize[d] that . . . [Overmyer’s] nuclear family has been shattered. . . . [and took] into account the fact that [Overmyer] now . . . understands the victimization of young children who are depicted in these images.” R.39 at 13.  He also “fully underst[oo]d” that “Mr. Overmyer has lost his livelihood and his nuclear family,” but said that in his “judgment that merits a sentence at the lowest end of the advisory guideline range,” R.39 at 16, not a sentence below the range.  The court addressed each of Overmyer’s arguments for a below-guidelines sentence, leaving nothing procedurally awry about the sentence....

Overmyer next raises a substantive-reasonableness objection — that his sentence is too long.  A within-guidelines sentences is presumptively reasonable, Vonner, 516 F.3d at 389, and Overmyer points to nothing to displace the presumption.  He claims that a shorter sentence is in order because he sought counseling on his own after the arrest and because he was unusually despondent over the collateral effects of his conduct.  Although these considerations might support a lower sentence, they do not compel one, and that is all we have license to consider....

In the aftermath of United States v. Booker, 543 U.S. 220 (2005), Rita v. United States, 551 U.S. 338 (2007), and Kimbrough v. United States, 552 U.S. 85 (2007), it is trial judges, not appellate judges, who have considerable discretion in applying the § 3553(a) factors to an individual.  Whether in a given case a district court agrees with the guidelines recommendation, varies downward from the guidelines range or varies upward from the range, we defer to their sentencing decisions unless those decisions are unreasonable.  It follows that, while our colleague is correct that appellate judges may disagree with the sentencing judge about the appropriateness of a given sentence in a given case, mere disagreement is not by itself sufficient to warrant reversal.  Something more — a disagreement that establishes the unreasonableness of the sentence — must be present....

Overmyer received and possessed at least 90 images (89 more than necessary for the imposition of the five-year minimum), including images that are more sadistic than the “ordinary” child pornography sufficient to trigger the mandatory minimum.  He persisted in his criminal conduct even after it cost him his job, and he lied to investigators when they came looking for evidence of the crimes.  Nor does anything in the record show that Overmyer is fully rehabilitated; it shows only that he sought treatment and made commendable progress in addressing his addiction.  Whatever we might have done in sentencing Overmyer, it is difficult to say that the district court acted unreasonably in sentencing him to more than the statutory minimum.

The dissenting opinion authored by Judge Merritt includes these passages, which help explain his concerns with the panel's holding: 

The problem in this pornography case is the gross disparity, inequality, and unfairness that exists in sentencing generally, but even more so in these child pornography viewer cases. It illustrates the continued sad dependence of federal judges on a harsh sentencing grid created by a distant bureaucracy....

Here the defendant also asserts that “a sentence in the 60 month range would be sufficient but not greater than necessary to punish him for his offense behavior.” (Appellant brief, p. 9.)  My colleagues do not even discuss, much less take seriously, the parsimony provision....

As an appellate judge required by law to review and consider the sentence in this case, I assume I am permitted to disagree respectfully with the sentencing judge about the fairness of the guidelines policy and its application in this case.  Like the judges in [the Third Circuit case of US v.] Grober, I would limit the sentence in such cases to the mandatory minimum of 5 years, as requested by defendant....  The Guidelines in this case, as in many cases, are too harsh, here “unconscionably” harsh, as the Third Circuit says....  In the end it is still supposed to be the Article III sentencing judges at the trial and appellate levels who are responsible for the sentence imposed, even though the grid system has given the prosecutor, a party to the case, a dominant role, as the Third Circuit district and appellate judges discussed in Grober.

My colleagues’ response to this line of argument is that it is irrelevant and unworthy of serious consideration: They say clearly that if a district court and the grid system are together on a sentence within the grid, a reviewing judge has no business interfering. Presumably, that is the reason my colleagues refuse to discuss the harshness of the sentence, the addictive and nonviolent nature of the crime, the parsimony provision of the Sentencing Act or the validity of the grid policy that the district judge discusses and accepts.  No effort is made to rebut the views expressed in the Grober case or in the many opinions and articles discussed there which strongly disagree with the guideline policy, and no effort is made to discuss the elemental fact that most of the guidelines enhancements are inherent in the crime itself for which Congress established a mandatory minimum of five years.  The only argument that persuades my colleagues is that the district court and the grid are in agreement.  When that is the case, the policy and the sentence must be right and no further analysis or commentary is needed.  The grid becomes a biblical command for the reviewing judges.  I do not agree.

In part because I played a role as an expert witness in the Grober case (which itself gets a mention in the dissent), I am disinclined to weigh in concerning the child porn sentencing substance of this Sixth Circuit panel dispute.  I am, however, inclined to assert that the true essence of the dispute in Overmyer is ultimately more about the nature and direction of substantive reasonableness review than about federal child porn sentencing.

December 20, 2011 in Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Wednesday, December 14, 2011

Fifth Circuit, taking issue with Second Circuit's work in Dorvee, affirms 220-month sentence for child porn downloading

The Fifth Circuit has a lengthy new opinion in discussing federal child porn sentencing in US v. Miller, No. 10-50500 (5th Cir. Dec. 13, 2011) (available here).  Here is how the opinion starts, along with some snippets from what is an extended substantive discussion of the federal child porn guidelines:

Aubrey Miller pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1).  The district court sentenced Miller to 220 months of imprisonment (18 years and 4 months), a term within the advisory Guidelines range and less than the statutory maximum of 240 months of imprisonment.  The district court also imposed a twenty-five-year term of supervised release. Miller appeals his sentence and elements of his supervised release.  We affirm....

The Second Circuit discussed at considerable length in Dorvee the history of the sentencing Guidelines that apply to child pornography offenses and the role of Congress in that history.  The Second Circuit surveyed writings that have expressed disapproval of these Guidelines and congressional actions regarding them. That court was highly critical of the child pornography Guidelines, concluding that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months, rapidly approaching the statutory maximum, based solely on sentencing enhancements that are all but inherent to the crime of conviction.”  The Second Circuit asserted that “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.” That court declared, “[t]his result is fundamentally incompatible with § 3553(a).”...

With great respect, we do not agree with our sister court’s reasoning.  Our circuit has not followed the course that the Second Circuit has charted with respect to sentencing Guidelines that are not based on empirical data.  Empirically based or not, the Guidelines remain the Guidelines.  It is for the Commission to alter or amend them.  The Supreme Court made clear in Kimbrough v. United States that “[a] district judge must include the Guidelines range in the array of factors warranting consideration,” even if the Commission did not use an empirical approach in developing sentences for the particular offense.  Accordingly, we will not reject a Guidelines provision as “unreasonable” or “irrational” simply because it is not based on empirical data and even if it leads to some disparities in sentencing.  The advisory Guidelines sentencing range remains a factor for district courts to consider in arriving upon a sentence....

In the present case, the district court expressly considered and rejected reasoning similar to that in Dorvee to the effect that those who “merely” possess or transport child pornography should not receive the same or more severe sentences than those who have actual sexual contact with a child....  The district court considered the policies underpinning the child pornography Guidelines.  It concluded that the sentence imposed, 220 months of imprisonment, was not greater than necessary to accomplish the purposes set forth in 18 U.S.C. § 3553.

Miller contends that punishment for his offense should have been mitigated by his personal characteristics and history, including his difficult childhood, his service in the Navy (prior to his other-than-honorable discharge), and the empathy for child pornography victims and remorse he attained after he was raped in prison. The district court considered each of these factors.  Miller’s disagreement is with the weight that the court gave to each.  The district court did not fail to give sufficient weight to Miller’s characteristics and history.

Some related posts on related rulings from other circuits:

December 14, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack