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.
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:
- Major reasonableness ruling from Second Circuit in child porn downloading case
- Split Third Circuit affirms way below-guideline sentence in major(?) child porn ruling
- Seventh Circuit affirms 210-month prison sentence for child porn dowloader/purveyor
- Multi-opinion Ninth Circuit ruling on federal child porn sentencing
Tuesday, December 13, 2011
Eleventh Circuit addresses interesting SORNA and ex post facto issues
The Eleventh Circuit has an interesting decision today on federal sex offender registration rules and ex post facto concerns in US v. WBH, No. 09-13435 (11th Cir. Dec. 13, 2011) (available here). The unanimous panel ruling begins this way:
The Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901, et seq., which was enacted in 2006, requires criminals who have been convicted of a sex offense to register as sex offenders. In 1987, nearly 20 years before that Act was enacted, the defendant in this case was convicted of first degree rape. If he had ended his criminal career back then, he might not have had to register under SORNA. Instead of giving up crime, however, the defendant branched out into another field of criminality and in 2009 was convicted in this case for conspiracy to violate federal drug laws. Because of the defendant’s earlier youthful offender adjudication on the rape charge, in sentencing him on this federal drug charge the court imposed as a condition of supervised release that he register as a sex offender under SORNA. This is the defendant’s direct appeal from that sentence, challenging the requirement that he register as a sex offender.
The issue is whether it violates the Ex Post Facto Clause to require a defendant who is convicted of a post-SORNA crime that is not a sex offense to register as a condition of supervised release because of a pre-SORNA, Alabama Youthful Offender Act conviction that is a sex offense. See U.S. Const. Art. I, § 9, cl. 3. The answer, as we will explain, depends on whether the SORNA registration requirements are civil or criminal in nature for ex post facto purposes. As we will also explain, those registration requirements are, on the whole, civil in nature.
Wednesday, December 07, 2011
"Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259"
The title of this post is the title of this new paper by Steven Joffee now available via SSRN. Here is the abstract:
Child Pornography is a vicious and heinous crime that preys on the most vulnerable and innocent members of our society. In recognition of the devastating impact that child pornography can have on its victims, Congress has enacted multiple anti-child-pornography statutes designed to address the problem. Among these statutes is the Mandatory Restitution for Victims of Sex Crimes Act, codified at 18 U.S.C. section 2259. Section 2259 was specifically enacted to ensure that victims of any defendant convicted of producing, distributing, or possessing child pornography would receive restitution for the full amount of the victim’s losses.
Although Congress intended for Section 2259 to apply in any case in which a victim has “suffered harm” as a result of a defendant’s conduct, its inclusion of the term “proximate result” in the Act’s catchall loss provision has created much confusion amongst federal courts. As a result of this confusion, several courts have simply ignored the mandatory language of Section 2259 and have flatly refused to award victims of child pornography with restitution, ultimately rendering the Act mere rhetoric.
To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear. Only by resolving this issue will Congress’ intent to provide all victims harmed by child pornography with full compensation be achieved, ensuring that those who harm the “Amys” of this world will be held fully responsible for their abhorrent conduct.
Monday, November 28, 2011
Notable Ninth Circuit ruling questioning residency restriction as supervised release condition
While on the road for the holiday weekend, I missed a notable Ninth Circuit ruling handed down on Wednesday concerning the creation of a residency restriction as a supervised release condition for a sex offender. The panel opinion in US v. Rudd, No. 10-50254 (9th Cir. Nov. 23, 2011) (available here), gets started this way:
William Newton Rudd appeals the district court’s imposition of a residency restriction as a special condition of supervised release, following his conviction and sentencing for one count of violating 18 U.S.C. § 2423(c), which prohibits U.S. citizens from traveling to a foreign country and engaging in illicit sexual conduct. The special condition prohibits Rudd from residing “within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18.” We have jurisdiction pursuant to 18 U.S.C. § 3742. Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error. Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction.
Monday, November 21, 2011
Committed sex offenders climb roof with nooses to protest confinement conditions
Breaking this afternoon is this interesting story out of Virginia, headlined "Rooftop standoff with noose-clad sex offenders ends." The piece reports on the extreme (and successful) efforts by a pair of confined sex offenders to bring attention to their complaints about the conditions of their confinement. Here are the details:
A three-and-a-half-hour standoff at a psychiatric facility for sex offenders who have already served their prison sentences ended without incident Monday when the two men who had climbed onto a roof with nooses around their necks climbed down and shook hands with police and officials.
The standoff at the Virginia Center for Behavioral Rehabilitation, which began around 11:30 a.m., ended just before 3 p.m. when police brought in ladders and the offenders took off their nooses and climbed down. The men were not immediately arrested but were assessed by medical personnel, Virginia State Police Sgt. Thomas Molnar said.
Offenders at the facility told The Associated Press the men climbed a fence to get to the awning, which is connected to the main building and is about 15 feet off the ground. The men had fashioned nooses from bed sheets and tied them to a building support, demanding to speak to a state official about conditions at the facility. The protest could be seen from a nearby highway....
[S]everal residents of the facility identified them as William Dewey and Victor Johnson. Dewey has complained to the AP about his treatment at the facility on several occasions. "Nobody wants to listen to us anymore," said offender Timothy East, one of several to report the standoff. "There's no voice here. Some people are taking drastic measures to make their voice be heard."
In calls and letters to the AP, Dewey and other offenders have complained about an increase in security. The nearly 300 offenders were sent to the facility after serving their prison sentences. The U.S. Supreme Court has said such civil commitment programs are constitutional as long as the offenders are there for treatment, not further punishment.
The offenders argue their privileges, such as outside recreation and property allowances, continue to be cut back while security increases. "It's too much of a prison mentality here," East said. "When they start going back to prison mentality that means we'll go back to it, too, and they're not going to like it."
Gordon Harris, another offender at the center, said he was in art class when everyone started running toward the yard where the standoff was taking place. He said many residents are upset over the restrictions and the lack of treatment. "There is no treatment here," he said. While two state inspector general reports in 2007 and 2008 were highly critical of the amount of treatment offenders received, that has increased in recent years.
North Carolina sex offender sentenced 5.5 to 7.5 years(!) for Facebook friending of victim
Because I am not a First Amendment expert, I am not sure if there are any viable constitutional arguments against punishing persons for using Facebook. But as a sentencing expert, I am sure that this local story from North Carolina highlights how severe some punishments can be for sex offenders who use social media in prohibited ways. Here are the details:
A convicted sex offender was sentenced to 66-89 months in prison Thursday after officials said he sent a Facebook "friend request" to one of his victims. Victor Terrell Gaston, 36, of Reidsville, pleaded guilty to one count of using social media as a sex offender in Rockingham County Superior Court. Judge Stuart Albright sentenced his as a habitual offender.
Officials say Gaston sent the request on July 4, exactly 10 years after the offense occurred in 2001. Gaston had been ordered to not have contact with the victim. Gaston was arrested three days after sending the request. Officers said he had been using Facebook for about two weeks.
Gaston had been a registered sex offender since November 26, 2003. He has previously been convicted of charges involving assault, larceny, indecent liberties with a child and burglary.
Rockingham County Chief Assistant District Attorney Julia Wolf Hejazi said it is important to keep sex offenders away from social media websites. "Victims of sexual assaults have a right to be left alone, and this law helps to protect their privacy," Hejazi said, in a press release.
Some related posts:
- "Facebook membership could prove costly for sex offender"
- Should all sex offenders be barred from Facebook and MySpace?
- Is it constitutional to criminalize having a Facebook page?
- Should a prison sentence necessarily halt all access to all social media for all purposes?
UPDATE: This recent AP article, which is headlined "Inmates harass victims via Facebook," highlights why the next bit important criminal law specialty may become social media and crime and punishment. Here is an excerpt:
Across the U.S. and beyond, inmates are using social networks and the growing numbers of smartphones smuggled into prisons and jails to harass their victims or accusers and intimidate witnesses. California corrections officials who monitor social networking sites said they have found many instances in which inmates taunted victims or made unwanted sexual advances....
"The ability to have these kinds of contacts is increasing exponentially. In many ways, the law has not caught up with these changing technologies," said Rob Bovett, an Oregon district attorney...
Timothy Heaphy, U.S. attorney for the Western District of Virginia, said criminals' use of social networks to reach witnesses has made his job harder. "We deal every day with witnesses who are afraid of being identified," he said. "If there are increased instances where folks who are incarcerated can reach outside the walls of the jail, that's going to make it more difficult for us to get cooperation." ...
The issue has emerged as cell phones have proliferated behind bars. In California, home to the nation's largest inmate population, the corrections department confiscated 12,625 phones in just 10 months this year. Six years ago, they found just 261. The number of phones confiscated by the federal Bureau of Prisons has doubled since 2008, to 3,684 last year....
In the old days, those behind bars would have to enlist a relative or friend to harass or intimidate to get around no-contact orders. Social networks now cut out the middle man....
Last June, Oregon legislators approved a law prohibiting inmates from contacting their domestic violence victims from behind bars. In California, prison officials are working with Facebook to identify inmate accounts and take them down. But that only generally happens only after the damage is done.
Wednesday, November 16, 2011
Fascinating CVRA and FSA issues seemingly ready for SCOTUS review
As I have mentioned before, John Elwood at SCOTUSblog does amazing work keeping up with the cases that the US Supreme Court is keeping in its midst for an unusually long time through his periodic posts labelled "Relist (and Hold) Watch." And, in this latest installment, he notes sets of cases raising two issues that have gotten a lot of attention on this blog now perhaps finally groomed for SCOTUS review:
The Court relisted for the first time since calling for a response in Fisher v. U.S. District Court for the Northern District of Texas, 10-1518, which presents the question whether a crime victim seeking to enforce a right under the Crime Victims’ Rights Act is entitled to ordinary appellate review of a district court’s disposition of his claims, or only more limited mandamus review for clear and indisputable error. The Court likely relisted Fisher to consider it together with Amy v. Monzel, 11-85, scheduled for the November 22 Conference. In addition to the standard-of-review question also at issue in Fisher, Amy presents another question, and alleges another circuit split, about the role of proximate cause in restitution awards for victims of child pornography....
The Court also relisted in Davis v. United States, 11-5323, another in the group of petitions discussed last week that the Court is collecting for the November 22 Conference along with Hill v. United States, 11-5721, all addressing whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date. As noted last week, it seems all but certain the Court will grant cert. in one of these cases.
My SCOTUS sentencing cup will be running over if the Justices grant review on both these issues in the weeks ahead. And, if the Court takes up these matters ASAP, what started as a pretty sleepy sentencing Term for the Court could quickly become one of the most interesting to watch in recent years.
Monday, November 14, 2011
Prison terms for downloading child porn in Canada are a lot different, eh?
This crime and punishment story from Canada, which is headlined "Man in record child porn bust set for sentencing," spotlights just how different the sentencing scale is for child porn downloading north of the border. Here are the basics (with my emphasis added):
A New Brunswick man who pleaded guilty in a case involving the largest collection of child pornography in Canada will be sentenced Monday following a delay for a psychiatric evaluation. Douglas Hugh Stewart, 52, of Moncton earlier pleaded guilty to possessing, accessing and distributing child pornography.
Crown prosecutor Karen Lee Lamrock said police found almost six million images and videos of girls — more than 4.5 million pornographic. The others were images of children who were nude, including in bathtubs.
Lamrock said Stewart had been collecting since the 1980s and he looked for new material on a regular basis, and the size of the collection is something never dealt with before in Canadian courts. Police spent 700 hours going through the images, involving girls as young as two years old.
The Crown is recommending a sentence of five to seven years in prison and wants Stewart to be listed as a registered sex offender. Defence lawyer Maurice Blanchard is requesting a sentence of four years. The defence also noted Stewart has no criminal record, and co-operated with police from the beginning of the case.
Because the defendant here had downloaded and stored 6 million(!) images, I am tempted to call this case the holocaust of kiddie porn and to call the defendant the Hitler of child porn downloaders. And yet notably, prosecutors in Canada have responded to the most aggravated of all cases of child porn downloading by recommending a sentence of five to seven years in prison.
Meanwhile, in the United States, defendants prosecuted in federal court who downloaded 600 images of child porn regularly face guideline recommended sentencing ranges of a decade or more in federal prison — in other words, defendants who downloaded only 0.01% of the number of images downloaded by this Canadian defendant regularly face federal sentences at least twice as long as the sentence being urged by Canadian prosecutors. And, in a notable state case from Arizona a few years back, Morton Berger received a 200-year state sentence for a much smaller kiddie porn collection (basics here and here), and just a few weeks ago in Florida, Daniel Enrique Guevara Vilca received a life without parole sentence for having lots of kiddie porn on a single laptop (basics here and here).
A few related older and more recent child porn prosecution and sentencing posts:
- Arizona Supreme Court upholds 200-year sentence for possessing child porn
- Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn
- Outstanding local media coverage of the crime, prosecution and punishment of kiddle porn downloaders
- "The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?"
- Fascinating data on recent trends and circuit specifics for federal child porn sentences
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- "Most federal judges not comfortable with tough guidelines"
UPDATE: The link above (also here) now has the updated sentencing story reporting that the Canadian defendant that I am calling the Hitler of child porn downloaders "has been sentenced to five years in prison in connection with the largest collection of child pornography ever seized in Canada." Notably, five years is the statutory mandatory minimum term facing federal defendants charged with receipt of just a few images of child pornography, and the latest federal statistics reveal that federal child porn offenders on average receive a 10 year federal prison term.
Tuesday, November 08, 2011
"Child-Abuse Reporting Law Is Challenge to Prosecutors"
The title of this post is the headline of this Wall Street Journal report, which ends with a notable sentencing spin on the stunning sex abuse scandal emerging from the Penn State football program. Here are excerpts:
Ambiguity in a state law on reporting child abuse could complicate the prosecution of Pennsylvania State University administrators in the Jerry Sandusky case.
Tim Curley, Penn State's athletic director, and Gary Schultz, vice president for business and finance, were charged on Monday with failing to report to the authorities allegations that Mr. Sandusky, formerly Penn State's defensive coordinator, had sexually assaulted a minor on campus. Pennsylvania Attorney General Linda Kelly said the university sat on information that could have prevented further abuse. The two men have also been accused of lying to a grand jury about what they knew of the allegations. They have denied the charges. Mr. Sandusky has denied any wrongdoing.
It is unclear if the officials were obligated to report the allegations in the first place, legal experts said. Messrs. Curly and Schultz could argue they aren't covered by the reporting law, which requires professionals "who, in the course of their employment, occupation or practice of their profession, come into contact with children" to report any suspected abuse....
Whether or not the "failing to report" charges survive, the two are each charged with one count of perjury, which carries a punishment of up to seven years in jail. Under sentencing guidelines, they would likely face one to 12 months.... The "failing to report" charge carries a maximum of 90 days in jail and a $200 fine. Some observers wonder why lying to a grand jury about knowledge of child-abuse allegations carries a stiffer punishment than failing to report them in the first place.
"Frankly, we need to take a look at whether the penalties need to be increased for failing to report," said Pennsylvania state representative Todd Stephens (R.), a former assistant district attorney who used to prosecute sex crimes.
Saturday, November 05, 2011
"Life Sentence for Possession of Child Pornography Spurs Debate Over Severity"
The title of this post is the headline of this effective New York Times story discussing the remarkable case from Florida first blogged here. Here is how the piece starts:
Does downloading child pornography from the Internet deserve the same criminal punishment as first-degree murder?
A circuit court judge in Florida clearly thinks so: On Thursday, he sentenced Daniel Enrique Guevara Vilca, a 26-year-old stockroom worker whose home computer was found to contain hundreds of pornographic images of children, to life in prison without the possibility of parole.
But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.
Thursday, November 03, 2011
Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn
The lengthy sentences sometimes given to downloaders of child pornography in federal court often are much longer than those handed out for this crime in state courts. However, as detailed in this local piece from Florida, headlined "East Naples man sentenced to life in prison for child porn," some state sentences for child porn possession are even more extreme than federal law provides:
An East Naples man was sentenced to life in prison Thursday following his conviction last month in one of the county’s largest child pornography cases. The sentencing of Daniel Enrique Guevara Vilca, 26, came after a six-person jury found him guilty Oct. 6 on 454 counts of possessing child pornography. Collier County sheriff’s investigators seized a computer from Guevara Vilca’s Landover Court apartment in January 2010 and found about 300 sexually explicit pictures containing children and 38 hours of taped child pornography.
Guevara Vilca faced more than 300 years in prison. The minimum sentence under a state score sheet was 152 years in prison. Guevara Vilca turned down a 25-year plea agreement before trial....
The sentence is the most severe in county history for a child pornography possession case. In 2009, Naples resident Douglas Deering received a 25-year sentence as part of a plea deal on 197 child pornography possession counts.
This companion piece, headlined "East Naples man's life sentence for child porn too harsh, attorney says," reports that the defendant's attorney will challenge the constitutionality of this sentence on appeal:
His defense lawyer, Lee Hollander, argues that others in Collier County have committed crimes more serious and violent, yet received lesser punishment than Guevara Vilca, who had no prior criminal record.... “People who are actually creating child porn or molesting children are getting lighter sentences than people who are in possession of it,” Hollander said. “The guy is doing life in prison for looking at child porn. I’m sorry, but that just doesn’t compute.”
Less sympathetic Thursday was Assistant State Attorney Steve Maresca. He said it was “offensive” to claim possession of child porn is a nonviolent crime, adding that consumers such as Guevara Vilca keep alive a market for children to be sexually abused. “I think (the sentence) sends a message that this is a serious crime,” Maresca said. “This is a crime that continues on and on. Those images are there forever, which means some of those children have to deal with it forever.”
[Collier Circuit Judge Fred] Hardt had little choice but to follow state law in putting Guevara Vilca behind bars for life. A sentencing score sheet required a minimum sentence of about 152 years in prison — a far cry from the 25-year plea agreement Guevara Vilca rejected before the trial. The number and severity of the charges allowed Hardt to impose a life sentence under state law.
Hardt reviewed several factors that could have allowed him to depart from the minimum guideline, including the defendant’s mental health history and the constitutionality of the sentence. He found no reason to impose a lighter sentence. “The fact that this court might — and I’m not saying it does — believe that this sentence is disproportionate is not valid grounds for departure,” Hardt said.
Hollander said he plans to appeal the sentence, calling it a cruel and unusual punishment that violates the Eighth Amendment of the Constitution.
The principle of his claim — that a child porn consumer shouldn’t receive a life sentence when child sex abusers often receive lighter punishments — drew debate Thursday from state law professors.
“That argument can be made,” said Bob Dekle, a University of Florida law professor who spent about 15 years prosecuting sex crimes in northern Florida. “How good it is and how persuasive is another question. I don’t find it very persuasive.”...
Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sex offender laws, suggested a life sentence for child pornography possession is excessive. “I don’t think somebody should get life in prison for possessing child pornography that they didn’t produce,” Lave said. “I don’t think it should be the same as somebody who commits first-degree murder or a string of violent crimes. Part of what the justice system needs to do is punish proportionally.”
Hollander said his appeal of the sentence “probably is going to end up in front of the Florida Supreme Court in some shape or form.”
Thursday, October 27, 2011
"Sex Offender Fined $200 For Licking and Fondling Cardboard Woman in Rite Aid"
The title of this post, which is the headline of this report from Gawker drawn from a local news report, describes the notable recent offense and sentencing of a Massachusetts sex offender. Befitting the amusing crime, here is the amusing Gawker account:
How many times have you come across a life-sized standee in a movie theater lobby or department store, and not thought to yourself, "If only our ass-backwards society didn't disapprove of inter-dimensional dating, this cardboard cutout of Nikita and I could probably be pretty happy together." Well, Charlie J. Price of Pittsfield, Ma., doesn't abide by musty precepts like "social mores" or "not licking cardboard ladies in public."
On Saturday evening, an intoxicated Price waltzed into a Rite Aid and locked eyes with the sunglass-display model of his dreams. According to a Pittsfield Police report, he then "grabbed hold of the sunglass display, hugged it tightly and then began to lick and kiss the face of the female party on the display." This went on for about a minute, police said, and ended with the two star-crossed, partially laminated lovers rolling around on the floor, blissfully unaware of the terrified customers inching away around them.
Price, whose lack of self-control and inhibition has gotten him into serious trouble before (he's a Level 3 sex offender, which apparently is very sex-offendery), was detained by police and soon found himself in front of a judge. He was fined $200.
Though I am certain it is not PC to make light of a drunk sex offender behaving badly at the local drug store, I promise not to be offended if commentors have some light-hearted reaction to this story.
Tuesday, October 25, 2011
Noting the costs of being tough on sex offenders in Iowa
This local article, headlined "Iowa sex offender convictions rise, pushing up costs, data show," reports data on sex offender convictions and consequences in the heartland. Here are the details:
The number of people convicted in Iowa for sex crimes has grown for each of the last five years, driving up the already growing cost to taxpayers of monitoring and imprisonment.
A draft of a new state report shows prisons are also housing sex offenders for longer periods of time and parole caseloads are growing significantly. By 2021, some 2,600 sex offenders are expected to be serving “special sentences” under a stringent state law passed in 2005, meaning they will be supervised after their prison release for 10 years or life depending on the seriousness of their crimes.
“The special sentence, particularly lifetime supervision, will increase the parole caseload by 78 percent in 10 years,” the draft report released this month by Iowa’s Division of Criminal and Juvenile Justice Planning found. The additional cost of monitoring the offenders will total at least $34.54 million during that span, according to the report.
Members of the Iowa Sex Offender Research Council will meet Wednesday at the Statehouse to discuss the new report. The council has urged state leaders to explore more effective and less expensive ways of monitoring sex offenders. “We’re trying to figure out policy-wise what makes the most sense to do now,” said Sally Kreamer, who heads the 5th Judicial District correctional services. “Caseloads are only going to get larger and larger. If we don’t figure out some strategy soon, I’ll have to come back to my board and say, ‘What is it that you don’t want us to do anymore?’ ”
The Legislature agreed last year to allow corrections officials to use risk assessments to decide which offenders should be subject to electronic monitoring after they have been released from prison. That move saved thousands of dollars without causing any increased public safety issues, Kreamer said. She said research shows Iowa has been more successful than others in monitoring those at highest risk and curbing recidivism.
Now, however, officials are running out of ideas on how to deal with the cost of housing more sex offenders in prison and monitoring hundreds more on parole throughout the state. “Were trying to brainstorm and figure out what to do,” Kreamer said. “But it’s really hard to find good ideas.”
The number of sex offenders in Iowa prisons reached 542 this year, up from 507 in 2007. Those sent back to prison for parole violations this year numbered 68, compared with four in 2007....
A 2009 investigation by The Des Moines Register found the flood of new sex offenders under supervision would cost taxpayers a minimum of $168 million over 20 years, or about $8.4 million a year. The new study tallied only the minimum monitoring that would be required under the 2005 law and excluded the probation officer salaries the Register considered....
[T]he new state report and other research nationally suggests more savings might be found by assessing and treating juvenile offenders, who make up a growing part of Iowa’s sex offender population. “There is more latitude in the juvenile area because they respond more easily to treatment,” said [State Senator Bob] Dvorsky, a member of the sex offender council. “There are ways that maybe we can work with them and get them out of the system if they are identified quickly.”
Friday, October 21, 2011
Interesting sex offender parole story (and parole data) from Kentucky
Folks like me who spend (too) much time obsessing about the federal sentencing system can (too) readily forget that parole remains an important part of many state sentencing systems. And this local article, headlined "Laurel Co. sex offender paroled after serving 12 years of 100-year sentence," provides an interesting tale of parole (and some state parole from Kentucky. Here are excerpts:
A Laurel County sex offender was paroled from prison earlier this month after serving less than 13 years of a 100-year sentence. Anthony L. Carroll, 53, was eligible for parole under the law that was in place when he committed the crimes in the early 1990s.
Still, the state Parole Board didn't have to let him out of prison, said Commonwealth's Attorney Jackie Steele, whose office opposed the parole. Steele said a jury essentially said Carroll should spend the rest of his life in prison and noted the children involved have to live with what Carroll did to them the rest of their lives.
"For him to walk out in 12 years is an insult to the victims and the Commonwealth of Kentucky," said Steele, the felony prosecutor for Laurel and Knox counties. "There's no justice in that." The mother of the boy Carroll was convicted of molesting said she thinks Carroll had somehow "gotten some strings pulled" to get released. "It was something that was just crazy. How could this happen?" the woman said....
Verman Winburn, chairman of the board, said in a statement there was no outside influence or pressure to parole Carroll. "The board took into consideration the fact that he has made changes in his life and taken responsibility for his crimes," Winburn said.
He said Carroll had completed sex-offender treatment, will receive aftercare treatment, and will be supervised for the rest of his life. Carroll must register as a sex offender. "Our hope is that he will live a law-abiding life," Winburn said.
There has been a trend toward paroling more people as officials have looked for ways to cut prison costs. In the 2005-06 fiscal year, 43 percent of eligible inmates were paroled, while 37 percent were deferred for later consideration, according to figures supplied by the Justice and Public Safety Cabinet. In the 2010-11 fiscal year, 54 percent of eligible inmates were paroled, and the deferment figure had dropped to 28 percent. In the rest of the cases, inmates were ordered to serve out their sentence.
Jennifer Brislin, spokeswoman for the state Justice and Public Safety Cabinet, said there has been a renewed focus on efforts such as substance-abuse programs and tailored parole supervision aimed at helping parolees stay out of trouble. The Parole Board, which is independent of the Cabinet, also has better tools to assess who to parole, she said. Parole decisions are made with public safety in mind, Brislin said. She said state figures show the percentage of inmates paroled who commit a new crime within two or three years has gone down since 2007.
Carroll was convicted in 1999 of five counts of sodomizing a young boy. The abuse had taken place in the early 1990s, but the boy didn't come forward until years later, after his half-sister told their mother about abuse by Carroll, their mother said. Carroll was tried for molesting the boy, who testified in graphic detail, said Danny Evans, who prosecuted the case.
A judge followed the jury's wishes and sentenced Carroll to 100 years in prison. There were indications the girl had been molested, as well, but Carroll was not tried for any alleged abuse of her, her mother said. That was because officials felt it was not necessary to put the girl through the ordeal of testifying, given the 100-year sentence Carroll faced, the mother said.
Under the law in place at the time of his crimes, a person convicted of committing a violent crime had to serve half the sentence, or 12 years — whichever was less — before becoming eligible for parole. V iolent offenders must now serve at least 85 percent of their sentence.
Saturday, October 15, 2011
Sex offender registers Occupy protest camp as home address
This local article from Oregon, which is headlined "Sex offender claims Occupy Portland as address," reports on an interesting new connection between recent public protests and crime and punishment. Here are excerpts:
Portland police report that one of the residents of the Occupy Portland camp is a sex offender from California. A police lieutenant says the man registered at the Portland Police headquarters, and gave his local address as ‘Lownsdale Square, Occupy Portland.'
Protesters whom FOX 12 spoke with remained unconcerned that a sex offender may be in their midst....
"He is in Portland from California, and he listed his address as ‘ Lownsdale Square, Occupy Portland,'" Said Portland Police Lieutenant Robert King. King says the man registered with detectives as Raymond Allen Curtis, 32, and is complying with the law by checking in with Portland Police.
"It doesn't concern me, ‘cause I lived in Southeast Portland where there's one in every corner and every house anyways," Julianne Dunn says. "You never know when you could be attacked wherever you're at. So you have to be aware of your surroundings."
Surrounded by City Hall, the Justice Center and the Multnomah County courthouse, campers are preparing for the second weekend of Occupy Portland.
Monday, October 03, 2011
Sex offender standing before SCOTUS this morning in Reynolds
As explained in this helpful SCOTUSblog post, the Supreme Court is hearing arguments this morning in a sex offender case to kick of the start of its new Term, but what is at issue seems quite narrow and of limited long-term consequences. The case is Reynolds, and here are the essentials:
In Reynolds v. United States, the Court will consider a surprisingly narrow issue: standing. In particular, the case asks whether a sex offender who was convicted before SORNA’s enactment has standing to challenge the Attorney General’s rule that applies SORNA’s registration requirement to pre-enactment offenders.
SORNA requires every sex offender to register, and to keep the registration current, in each jurisdiction where the offender lives, works, or studies. It provides that a sex offender’s failure to register, or to keep registration current, itself constitutes a federal crime. Section 16913(d) delegates to the Attorney General the authority to say whether and how SORNA’s registration requirements apply to sex offenders who were convicted before SORNA’s enactment...
The petitioner in this case, Billy Joe Reynolds, was convicted of a sex crime in Missouri in 2001 and sentenced to imprisonment. Upon his release in 2005, he registered under Missouri law and subsequently updated and verified his registration as required by Missouri law.
In November 2007, Reynolds was charged and indicted with violating SORNA’s registration requirements after he moved to Pennsylvania without updating his registration. He moved to dismiss the indictment, arguing — among other things — that the Attorney General’s rule violated the APA. The district court denied the motion, and Reynolds entered a conditional plea, reserving the right to appeal the denial of his motion to dismiss. The Third Circuit affirmed, ruling that SORNA’s registration requirements applied to pre-enactment offenders by their own force, even without the additional rule by the Attorney General. The court concluded that Reynolds therefore had no stake in the rule and no standing to challenge it. (It is not clear if this case involves formal Article III standing, or “standing" in its more colloquial sense. But it doesn’t matter: either way, Reynolds has to show that he had some stake in the Attorney General’s rule.) This appeal followed....
[T]his case is not framed to present the more interesting constitutional issues around SORNA. The Court will almost surely limit its ruling to the precise standing issue here. Given all this, we might wonder why the Court even agreed to hear the case. It’s likely that the Court just needed to resolve a circuit split — a simple explanation for a surprisingly narrow case.
I share the view that Reynolds is a "surprisingly narrow case" — I am even inclined to call it annoying narrow given all the broader constitutional and statutory issues that surround SORNA. That said, I suspect today's oral argument and the ultimate ruling in Reynolds could provide some hints as to how various Justices view SORNA and its many notable "big federal government" elements.
Wednesday, September 28, 2011
Arizona locality approves ordinance banning sex offenders from all public facilities
As detailed in this local story, which is headlined "Huachuca City bans sex offenders from public facilities," a locality in Arizona has enacted a uniquely broad ban on sex offenders in public spaces. Here are the details:
In a bold and unprecedented move for an Arizona jurisdiction, the town of Huachuca City is cracking down on registered sex offenders by banning them from all public facilities. Mayor and council unanimously approved the ordinance last Thursday, which is set to take effect late October.
“As a town and as a community, we have to protect our children. As a council, we have to make the right calls,” Mayor Byron Robertson told KGUN9 News. “Our police chief indicated that we were having a serious problem with some pedophiles that were being a nuisance and we took steps to overcome that.”
The ordinance creates “child safety zones,” by banning all registered sex offenders from schools, parks, libraries, pools, gymnasiums, sports fields and sports facilities. Sex offenders must pay $100 fine per violation; repeat offenders will be charged with trespassing.
Police say they’ll rely on tips from the community as well as heavy patrolling to enforce the ordinance. “I don’t want to make it sound like Big Brother is watching, but we do have a file on sex offenders in the area, complete with photographs, so our officers will hopefully recognize them,” said Lt. Jennifer Fuller, a spokesperson for the Huachuca City Police Department.
Fuller said the impetus for the ordinance stems from a recent incident, in which a registered sex offender spent time loitering around the public pool and taking photographs, making parents and children uncomfortable....
There are exceptions: Sex offenders may enter public facilities to pick up their children, vote in an election, or to discuss with someone their kids’ health or education.
"Megan's Laws as a Case Study in Political Stasis"
The title of this post is the title of this new piece from Professor Wayne Logan now available via SSRN. Here is the abstract:
Sex offender registration and community notification laws, today commonly known as Megan's Laws, are typically seen as consumate products of legislative panic. Unlike many other panic-driven laws, however, the political forces motivating Megan's Laws have not dissipated, and the laws have grown exponentially over time, despite research casting considerable doubt on their public safety efficacy. This symposium contribution examines how and why Megan's Laws have endured -- even thrived -- notwithstanding concerns over their utility, and reflects upon their likely continued political impregnability in the years to come.
Monday, September 26, 2011
Plans for modern
leper sex offender colony in Florida
A helpful reader alerted me to this local story from Florida, which is headlined "Sex offender village planned for Lake County" and starts this way:
A Central Florida woman wants to house hundreds of sex offenders in rural Lake County. The planned sex offender village would start with 288 predators and offenders in a leased facility, but could expand to 1,100 on 500 acres.
Barbara Farris, head of a new organization called S.O Solutions, Inc., sees the remote spot as a solution to housing sex offenders she's been fighting to keep out of neighborhoods. "It's not right in city limits. We're miles away between Sorrento and Sanford," she said.
The goal of the facility would be to take offenders away from the temptation to offend again by living near children. "They have an atmosphere where they're not looking out their window at kids in a park, not a mile away from your school," said Farris. She also says they would offer not only housing, but monitoring, counseling, help finding a job, and transportation.
"Honestly, I wanted to cry. I was absolutely furious," said mother of a year old girl Victoria Morris, who lives just outside Sorrento. "This can't happen to our neighborhood." The mother started a Facebook page and a petition she's just started to circulate online to fight the plans of a sex offender village.
Noting the significant costs (and unclear benefits) of tracking lots of sex offenders
The economic costs and uncertain benefits of tracking lots of sex offenders is spotlighted by this lengthy local piece out of Ohio, which is headlined "Keeping track of sex offenders costly: Sheriff puts the low end of costs at about $179,000 annually." Here are excerpts:
Change in laws in the past five years have forced counties to spend thousands of dollars on registering and tracking sex offenders and the way cases are handled in court. The Butler County sheriff predicts the number of sexual offenders his office must monitor will double in five years, but despite budget woes, he believes keeping vigilant is a high priority.
On average, Sheriff Richard Jones’ office monitors 460 sex offenders. That number jumps to around 700 if juveniles and offenders who only work in the county are included. The increase in the number of sex offenders will raise the cost of monitoring sex offenders for counties, and some law experts said it will continue to clog the court system....
A low estimate of the cost of dealing with sex offenders is $179,000 annually, Jones said. That number includes salaries for the assistant prosecutor, who handles all cases involving children, the sheriff’s deputies who monitor offenders once they leave prison, mailing costs for notifications that go out to neighbors when a sex offender moves into town and costs to hunt down offenders who have skipped the state and violated reporting requirements....
The across the board changes, with reporting requirements for even the least severe of sex crimes, have also permeated the court system. Chris Pagan, a defense attorney who has represented people accused of sex crimes, says the law is clogging the docket. “It is certainly a lot more difficult to settle sex cases now than it was before,” he said. “People who are truly innocent, the fact that there would be a registration requirement is a deal stopper most of the time.”
Some question why sex offenders are required to register and submit to monitoring, but murderers, robbers, burglars and other criminals remain virtually invisible once they are released from prison. Matt Kanai, general counsel for law enforcement for the state attorney general’s office, said registration isn’t meant to punish the offenders; it is a tool for the public. Sex offenders, he said, are viewed as people who will likely attack again, so keeping tabs on them and providing their locations to the public is a service.
“Sex offenders do tend to operate in their neighborhood. Crimes like murder aren’t neighborhood specific. They are not necessarily looking at everyone that’s mowing their yard or walking down the sidewalk as their next potential victim,” Kanai said. “Murders happen in the heat of the moment or in a bar or liquor store. Those people aren’t thinking when I see people walking down the street I want to go murder that person, but sex offenders we do have that concern, that every person is a potential victim.”
However, a study by J.J. Prescott of the University of Michigan and Jonah Rockoff of Columbia University in 2010 found while registering sex offenders appears to be a good, notifying the public is not always a good thing. Public notification may scare away those inclined to be future offenders. But it appears to actually increase the likelihood that convicted sex offenders will offend again, the study shows analyzing national crime data.
Thursday, September 22, 2011
"The Evolution of Unconstitutionality in Sex Offender Registration Laws"
The title of this post is the title of this notable new article by Professor Catherine Carpenter, which is now available via SSRN. Here is the abstract:
More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.
This particular article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes -- what this piece dubs super-registration schemes -- are not. Their emergence over the last several years demands reexamination of traditionally held assumptions that shaped the original legislation.
Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this article is a cautionary tale of legislation that has unmoored from its constitutional grounding because of its punitive effect and excessive reach.
September 22, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
"Texas sex offenders scramble to take advantage of 'Romeo and Juliet' law"
The title of this post is the somewhat ironic headline of this notable local article reporting on the ability for some Texans previously prosecuted for consensual underage sexual encounters to get free from the label "sex offender" and the state's sex offender registry. Here are the details:
A North Texas man, who we will call "Austin", may be among the first in the state to drop his name from the sex offender registry, under the new "Romeo and Juliet" law. The measure allows young lovers to erase a teenage romance, that turned criminal.
"I have been associated with the worst kind of human beings," said the 28-year old man. Austin says he took a plea bargain almost ten years ago, that landed him on the state registry for sex offenders. The plea followed a relationship with a 16-year old girl, when he was 18. He says the two were in love and their parents approved, but the law didn't agree. "People want to know who did I rape and they think I am the one hiding out in the bushes."
But, Austin is hopeful that he will be able to get his name off the list because of the new law. "It feels like a big weight is about to be lifted off my shoulders. There is a lot of hope," he said.
Austin will petition a judge in West Texas, where his case is located to set a hearing where the judge will rule on whether or not his name can be dropped from the list. Under the law, young lovers can petition if there is fewer than four years age difference, the minor is at least 15 and the sex was consensual. Lawmakers who supported the change believe the updated measure will make a difference for a sliver of the state's sex offenders.
"We had testimony where people who had a teenage romance would get married, but because the husband is a sex offender he can't be around the kids," Dallas State Senator, Royce West, said. West sponsored the new legislation that he says will allow valuable resources to be used to keep tabs on the truly dangerous offenders. "We need to make sure the resources are used in the most hideous situations, as opposed to teenage love affairs," West said.
I suppose we should all look out for follow-up articles in this series under headlines like "Texas sex offenders pleased to take advantage of new law that lets them avoid the sex offender label" and "Texas sex offenders who have avoided the sex offender label continue to support law that advantaged them."
September 22, 2011 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack
Wednesday, September 14, 2011
Even if banning sex offenders from public libraries is constitutional, is it a reasonable policy?
I responded yesterday to a Tennessee story about a new criminal prohibition on registered sex offenders setting foot in a public library by asking in this post, "Is it constitutional to ban sex offenders from public libraries?". I sent the post to First Amendment guru Eugene Volokh, and he responded with two great posts on his great blog here and here explaining his view that (1) this new Tennessee ban is constitutionally permissible under the First Amendment, but (2) there could be a problem with it under federal regulatory law for libraries that get federal benefits.
In addition to expressing how grateful I am for Eugene's input and analysis, I wanted to do this follow-up post asking for reactions to this ban as a matter of policy. I tend to have a negative reaction to the ever-growing and seemingly never-ending list of what registered sex offenders must and must not do. And yet, public libraries are places where not only do I want patrons to be 100% safe, but I want even the most fearful of potential patrons to believe they are 100% safe.
Before condemning this new Tennessee law, it is worth considering how a local mayor or town council member should be expected to respond if some (many? a few?) constituents assert that they genuinely would feel safer with their kids at the local library if sex offenders were barred. Though many might say it is silly to have an undue fear about registered sex offenders while at the public library, I think it must be hard for an elected official to say just that directly to a person expressing such a fear and urging the kind of ban now in place in Tennessee.
Tuesday, September 13, 2011
Is it constitutional to ban sex offenders from public libraries?
The (challenging?) legal question in the title of this post is prompted by this local story out of Tennessee, which is headlined "Knox bans registered sex offenders from county libraries." Here are the details:
People listed on the Tennessee Sex Offender Registry are banned from visiting county libraries under an executive order issued Monday by Knox County Mayor Tim Burchett.
He said they can still use the county library system's online services and have a proxy check out and return materials on their behalf. But, they face arrest if caught inside the buildings. "I just don't want them anywhere around our kids," Burchett said. "The ultimate decision is how we pursue it. I want to get out in front of this. There's no need to toil around with it. I don't want them anywhere around our kids."
The administration said the library system, which has 19 locations, is the first of the state's big four metropolitan library systems to put such a policy in place. The county, Burchett said, is taking advantage of a state law that went into effect July 1 that gives public library directors the authority "to reasonably restrict the access of any person listed on the sexual offender registry."
Officials will compare a list of registered offenders to its 150,000 active cardholders and then mail them notices, advising them of the change. State law says that a sex offender who enters a library five days after the notice is mailed can be prosecuted for criminal trespass. In addition, the county also will post notices on the entrances to all its public library buildings.
Listed offenders on the state's registry include those convicted of sex crimes against children, rape, statutory rape, attempted rape, sexual battery, criminal attempt to commit statutory rape and solicitation to commit aggravated prostitution. "People will say they've paid their debts to society, but they've given some of those kids a life sentence," Burchett said. "(Some of the) kids have been abused and they carry it with them for the rest of their lives. And I don't want to give (the offenders) a chance to be anywhere near them again."
Knox County Sheriff Jimmy "J.J." Jones agreed, saying he was pleased with the new policy. "I applaud the state of Tennessee for putting tougher regulations on these dirt bags who prey on our children," he said. Officials say they can't recall an incident at the library that involved a sex offender, but communications manager Michael Grider said the Knoxville Police Department is investigating a complaint made roughly a month to six weeks ago....
Sixth Judicial District Public Defender Mark Stephens said Monday he doesn't question the county's purpose of ensuring public safety, but he questioned whether the move was constitutional. "A regulation like this proposes too broad a ban to include people who impose no threat to library goers," he said. "A ban like this would have to be so narrowly tailored to avoid infringing on the rights of those people who don't present a risk, and the Knox County proposed ban doesn't meet that test."
Stephens said a New Mexico district court recently ruled that a similar ban in Albuquerque was unconstitutional. Additionally, he said courts have held that public libraries are limited public forums, which means the First Amendment protects peoples' rights to use them.
When asked whether the county's plan unfairly punished those whose crimes were not child-related, Burchett said: "Sometimes people plead down to lesser offenses. My main concern is protecting innocent people, and all we're doing is enforcing state law and going after it very aggressively. I don't know how you'd differentiate. The state can work that out."
Thursday, September 08, 2011
Second Circuit panel reverses child porn restitution award to "Amy"
The Second Circuit has today issued an important new opinion in the on-going saga concerning whether and how the kids victimized by being featured in illegal child pornography can secure restitution awards from defendants who downloaded these pictures via the internet. The panel opinion in US v. Aumais, No. 10-3160 (2d Cir. Sept. 8, 2011) (available here), gets started this way:
Gerald Aumais (“Aumais”) appeals from an Amended Judgment of Conviction entered on August 3, 2010 in the United States District Court for the Northern District of New York (Sharpe, J.). Aumais pleaded guilty to transporting and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district court sentenced Aumais to 121 months’ imprisonment and ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in restitution to finance future counseling costs of “Amy” (a pseudonym), one of the victims depicted in the images and videos. Aumais challenges the restitution order on the ground that his possession was not a proximate cause of Amy’s loss. Aumais also argues that the district court committed procedural and substantive error in sentencing him to 121 months’ imprisonment. We conclude that: based on the facts in this case, Aumais’ possession of Amy’s images was not a substantial factor in causing her loss; and that the district court committed no procedural or substantive error in imposing the sentence of imprisonment. Affirmed in part and reversed in part.
And here are the key concluding paragraphs in the court's restitution analysis from the later part of Chief Judge Jacobs' opinion for the panel (with cites omitted and emphasis in original):
The magistrate judge found that “Amy had no direct contact with Aumais nor even knew of his existence.” Amy’s Victim Impact Statement makes no mention of Aumais (or any other possessor of her images for that matter). Moreover, Dr. Silberg’s evaluation of Amy, upon which the doctor’s testimony was based, took place on June 11-12, 2008, July 29, 2008, and November 10, 2008, whereas Aumais was not arrested at the border until November 16, 2008. While Dr. Silberg may describe generally what Amy suffers from knowing that people possess her images, Dr. Silberg cannot speak to the impact on Amy caused by this defendant.... Here, in the absence of evidence linking Aumais’ possession to any loss suffered by Amy, we cannot agree with the magistrate judge’s conclusion that “Aumais’ conduct remains a substantial cause of [Amy’s] harm.”
This opinion does not categorically foreclose payment of restitution to victims of child pornography from a defendant who possesses their pornographic images. We have no basis for rejecting Dr. Silberg’s findings that Amy has suffered greatly and will require counseling well into the future. But where the Victim Impact Statement and the psychological evaluation were drafted before the defendant was even arrested -- or might as well have been -- we hold as a matter of law that the victim’s loss was not proximately caused by a defendant’s possession of the victim’s image.
It will be very interesting to see whether prosecutors or the folks who have been representing "Amy" and other victims in seeking restitutional awards will pursue further review of this ruling. The forcefulness of this ruling (which comes on the heels of a similar pro-defendant ruling from the Ninth Circuit a few months ago) may lead many child porn defendants, and even those outside of the Second Circuit, to resist even more forcefully these kind of restitution claims in district courts. For that reason (and others), those who advocate for restitution awards in these kinds of cases may be especially eager to at least try to have Aumais further reviewed.
Some related recent federal child porn restitution posts:
- Federal sentence for receiving child porn includes forfeiture of home
- Federal judge imposes large restitution punishment for downloading child porn
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
Wednesday, August 31, 2011
Two new pieces in Journal of Law & Econ examine efficacy of sex offender registries
This new press release from the University of Chicago Press Journals reports on two newly published articles examining the effectiveness of modern sex offender laws. Here are highlights:
Two studies in the latest issue of the Journal of Law and Economics cast doubt on whether sex offender registry and notification laws actually work as intended.
One study, by J.J. Prescott of the University of Michigan and Jonah Rockoff of Columbia University, found that requiring sex offenders to register with police may significantly reduce the chances that they will re-offend. However the research also finds that making that same registry information available to the broader public may backfire, leading to higher overall rates of sex crime.
Meanwhile, another study by University of Chicago Ph.D. student Amanda Agan finds no evidence that sex offender registries are at all effective in increasing public safety....
Using data from 15 states over more than 10 years, Prescott and Rockoff examine the evolution of sex offense rates as states passed and began to enforce their registration and notification laws....
Prescott and Rockoff find that a registration requirement without public notification reduces reported sex crime substantially, most likely through better police monitoring and more effective apprehension of recidivists. For a state with an average-sized registry, a registration requirement reduces crime by about 13 percent from the sample mean. The drop in crime gets larger as registries grow larger, indicating that registry laws lower crime by discouraging registered offenders from re-offending, as opposed to discouraging potential first-time offenders.
In contrast, public notification laws, such as the listing of released offenders on the Internet, may actually undo some or all of a registry's crime-reducing power. While Prescott and Rockoff discover that the threat of being subjected to notification deters some potential first-time sex offenders from committing crime, released offenders appear to become more likely to do so. In fact, adding public notification to an average state's registration law leads to slightly higher levels of total reported sex crime. Taken as a whole, the research shows that while police registration discourages sex offender recidivism, public notification actually encourages it.
Why would public notification encourage sex offenders to re-offend? Perhaps because they have little else to lose. In particular, notification can make the threat of prison less effective....
Agan finds no evidence that sex offender registries are effective in increasing public safety. Her study used three different types of analysis to test the effectiveness of sex offender laws. First, she compared arrest rates for sex crimes in each U.S. state before and after registry laws were implemented and found no appreciable changes in crime trends following the introduction of a registry.
Second, Agan tested whether registries discourage convicted offenders from re-offending. To do that, she looked at data on over 9,000 sex offenders released from prison in 1994. About half of those offenders were released into states where they needed to register, while the other half did not need to register. She could then compare crime rates in the two groups.
She found little difference in the two groups' propensity to re-offend. In fact, those released into states without registration laws were slightly less likely to re-offend. "The results show that an offender who should have had to register appears to behave no differently, or possibly worse, than on who did not have to register," she writes. "If anything, registered offenders have higher rates of recidivism."
Third, Agan looked at census blocks in Washington D.C. to see if higher numbers of sex offenders in a given block correspond to higher rates of sex crime arrests. She found that crime rates in general, and sex crimes in particular, do not vary according to the number of sex offenders in the area....
She concludes that sex offender registries do little to increase public safety, "either in practice or in potential."
Both these pieces appear in the February 2011 issue of the Journal of Law and Economics. The Prescott and Rockoff piece, which is available on-line here, is titled "Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?". The Agan piece, which is available on-line here, is titled "Sex Offender Registries: Fear without Function?".
Wednesday, August 24, 2011
"The Child Pornography Crusade and its Net Widening Effect"
The title of this post is the headline of this new article by Professor Melissa Hamilton, which is now available via SSRN. Here is the abstract:
The criminal justice system’s effort to combat child sexual exploitation has taken on a primary and aggressive focus toward prosecuting those who violate child pornography laws. The deontological policy labels all child pornography offenders, whether they are producers or merely viewers, as morally bankrupt and a threat to the nation’s children. Yet the basis for the policy bears fundamental flaws, and this article explores them. The article first summarizes legislative efforts to bolster child pornography laws and lengthen sentences for violators. It then provides a synthesis of criminal justice initiatives that are expending substantial resources targeted toward investigating, prosecuting, and punishing child pornography offenders. The policy and the initiative rely on a presumption that child pornography consumers are in reality undetected pedophiles and child molesters who are at high risk of sexually abusing children.
This article challenges the presumption by comprehensively analyzing certain of the most commonly cited studies that purport to empirically support correlations between child pornography, pedophilia, and child molestation. It also highlights other empirical evidence, as well as some practical considerations, that instead tend to show that most child pornography offenders are at low risk of committing contact sexual offenses. In sum, the concentration on child pornography crimes appears to be a misinformed policy that fails to directly protect real children from harm.
Tuesday, August 23, 2011
What sentence is deserved (and not disparate) for mass horrific stash of downloaded kiddie porn?
The question in the title of this post is prompted by this eye-pooping local story out of Ohio, which is headlined "More than 177,000 child-porn images found at London man's home." Here are the details:
A London man has been charged with possession of what a prosecutor describes as the largest cache of computerized child pornography ever uncovered in Madison County.
Donald Lemasters, 43, was charged with 15 counts of pandering sexually oriented material involving minors, nine counts of possessing sexually oriented material involving minors and one count of possession of criminal tools.
Assistant Prosecutor Eamon Costello said authorities found more than 177,000 images of nude children and minors involved in sexual activities on a computer and CDs at Lemasters’ home. Lemasters is not accused of producing the pornography....
Lemasters appeared yesterday in Madison County Common Pleas Court. Judge Robert D. Nichols released Lemasters on his own recognizance and placed him under house arrest.
Madison County Prosecutor Steve Pronai said the case is easily the worst he has handled. “This is some of the most disgusting stuff I have ever seen. You can’t even look at it,” he said. “We’re talking just babies here.”
He said a Franklin County task force that trolls the web to target child pornographers received a hit on a file-sharing website that linked thousands of images to Lemasters.
Regular readers are surely aware of examples of federal defendants getting sentences that run into decades for downloading only a few hundred picture of the worst kidde porn, and the enhancements that are imposed under the federal sentence guidelines based on the number of images top out at 600. How then should the criminal justice system (and in this case it for now appears to be the Ohio state system) deal with an offender who has literally hundreds of thousands of more images?
Monday, August 22, 2011
Texas man gets 220-year state sentence for kiddie porn possession (and uncharged child rapes)
This local piece, headlined "220 years handed out in porn case; Stacked sentences are among longest in memory," discussing a (record-long?) Texas sentence has many interesting (and sad) elements concerning modern sentencing discretion and the justification for extremely long prison terms. Here are the details:
A San Antonio man convicted by a jury in June of downloading hardcore prepubescent child pornography was ordered Friday to serve 220 years in stacked sentences — one of the longest punishments prosecutors said they could recall, locally or elsewhere.
Paul Joseph Lamarre, 43, initially faced up to 10 years in prison for each of the 22 counts of possession of child porn. But convictions related to child exploitation and molestation are among the few crimes in Texas that judges are allowed to stack.
Prosecutors in Bexar County tend to ask for consecutive sentences only in “extraordinary” circumstances, and this one qualified as such, Assistant District Attorneys Patrick Ballantyne and Stephen Ahl said after state District Judge Maria Teresa Herr announced her decision. “This is not a man exploring the outer bounds of his sexuality,” Ballantyne said during closing arguments to the judge. “He is an active sexual predator.”
Prosecutors called two women to the stand who each tearfully recalled Lamarre molesting them between the ages of 5 and 13. “It's pretty much ruined my life,” one of the women said, explaining that, among other things, Lamarre would put cash and lingerie in her drawer for her to wear during the rapes. “I suffer from severe, severe depression. I can't hold a stable relationship.”
The other woman recalled Lamarre filming her in the bathtub and waking up in the middle of the night with him on top of her, naked and with a video camera. “He stole my innocence from me,” she said.
But Lamarre had a lot of time to think about his actions while in jail, defense attorneys Richard Langlois and William Brooks countered, adding that he never got in trouble while free on bond. Prosecutors initially offered Lamarre a five-year prison sentence as part of a plea agreement he rejected, Langlois pointed out. That offer was made before child molestation allegations surfaced, prosecutors said.
Given the revelations during the punishment hearing, it was an “ideal time” to seek what amounts to life in prison without parole, District Attorney Susan Reed said. “It's not just possessing an image,” she said. “It's victimizing someone, and that leads to other things which we saw in this particular incidence where he's abusing young children.”
It seems to me that Lamarre did not really get 220 years as a sentence for possessing 22 images of child porn, nor that prosecutors sought stacked sentences because of his kiddie porn downloading. Rather, it seem pretty clear based on this news report that Lamarre (deservedly) received an extremely long sentence because he molested two girls for nearly a decade.
As reported here, I am not all that troubled that Lamarre will rot the rest of his life away in a Texas prison. But I wonder if others are troubled by the reality that his sentencing fate was really the result of crimes for which he was not formally charged and convicted. I also wonder just (1) why prosecutors were willing to offer a plea deal of only five years without having investigated Lamarre's history, (2) why Lamarre decided to turn down such a deal given his history, and (3) whether this evidence of prior extreme molestation would have ever been unearched if Lamarre had taken the deal.
"Can Schools Punish Students for Posting Racy Photos Online?"
The question in the title of this post is the headline of this new Time column. Here are excerpts:
Two Indiana girls — one 16, one 15 — took racy photos of themselves at a slumber party and posted them online. When their high school found out, it suspended the girls from participating in a certain amount of their extracurricular activities. Can the school legally do that?
A federal district court in Fort Wayne, Ind., recently ruled that it cannot — because the punishment violated the girls' First Amendment rights. The legal question of what rights students have to post provocative material on the Internet, and what rights schools have to restrict such postings, is still unsettled. But the Indiana decision is the second important ruling in recent months to strike a blow for students' online speech rights....
The Indiana ruling follows a June decision from the Philadelphia-based U.S. Court of Appeals in J.S. v. Blue Mountain School District, which held that a student could not be disciplined for posting a crude parody of her middle-school principal on MySpace. In that case, the court said that even if the parody was offensive — it presented the principal as a bisexual named M-Hoe with a sexual addiction and a child who looked like a gorilla — there was no reason to believe it would cause substantial disruption.
Taken together, the back-to-back Indiana and Pennsylvania rulings suggest two things. First, with the rise of the Internet, students are posting a lot of "crass foolishness," as the Indiana court tartly put it. And second, that courts are correctly determining that, except in the most extraordinary cases, students have a constitutional right to do so.
Obviously, these cases have more to do with the First Amendment than with sentencing. That said, I often view school discipline efforts as an example of kids getting "sentenced" by school officials. Moreover, in the severity of federal kiddie porn sentencing, any ruling finding constitutional rights in the posting racy photos of underage persons seems noteworthy.
Sunday, August 21, 2011
"Sentencing disparities in child-sex-assault cases point to double standard"
The title of this post is the headline of this intriguing piece appearing today in the Denver Post. Here are excerpts:
Women in Colorado convicted of sexually assaulting a child in their care are far less likely to go to prison than men sentenced for the same crime.
A Denver Post analysis of sentencing data provided by the Colorado Judicial Branch shows that of the 2,128 men convicted of sexual assault on a child by a person in a position of trust from 2006 through 2010, more than 50 percent were sent to prison. Of the 79 women convicted of the same felony offense, 38 percent went to prison. A little more than 39 percent of female defendants in that same period — 31 — were put on intensive supervised probation. Less than 35 percent of men were given the same sentence.
Experts who have studied the issue say those statistics are mirrored nationwide and show a clear disparity between how male and female teachers, coaches and babysitters are treated when they are convicted of sexually abusing a child....
With women, the victim is often a young or teen male in her charge, and too often the abuse is seen as less traumatic and almost a badge of honor for the boy, said forensic psychologist Katherine Ramsland.... Ramsland and others who track sexual-assault cases involving both men and women say prosecutors are starting to understand that women caught preying on teens — both boys and girls — can do just as much damage as men and are pushing for judges to treat offenders of both genders equally....
Several studies show that males molested by female caregivers run a huge risk of becoming sex offenders in adulthood. Also, 80 percent of male victims of female sexual abuse have been divorced, according to a study done by Stephanie Reidlinger, a law student at Regent University School of Law in Virginia Beach, Va.
Her study says that women who molest boys are most likely victims of abuse themselves. Reidlinger also says that many cases of woman-on-boy crimes are not reported at all, due in part to the media. "Media outlets rarely use language to convey this type of sexual abuse as a traumatic crime," Reidlinger said. "While reports about male offenders quite often include words like 'predator' or 'monster,' reports of female crimes refer to the perpetrators as 'bombshells' or the conduct as a 'romp.' "...
To be sure, women who abuse children and who are also teachers, coaches and babysitters are a significant minority. In fact, only eight women either had their teaching credentials revoked or denied by the Colorado Department of Education from 2006 to the present because of sexual misconduct. During that same period, 32 male educators were disciplined for the same reason, according to the department.
Prosecutors and defense lawyers also contend that the sentencing disparity between the genders could result from multiple factors, including prior history and likelihood of recidivism. A 2005 study shows that females convicted of a sexual offense repeat the same offense only about 1 percent of the time. The recidivism rate for male sex offenders is 13.4 percent.
That could play a role in determining whether a female offender should be sent to prison and, if she is, how long she should stay, said Larimer County District Attorney Larry Abrahamson. "You look at the charges, you look at the level of threat that individual is causing the community and if that person is subjecting the victim to pretty significant trauma. You have to look at all of those factors," Abrahamson said.
Sex offenders also are subject to intense psycho-sexual evaluations that weigh whether that person is likely to recommit a sex crime, he said. "Those responses can determine what kind of punishment level you are seeking," Abrahamson said.
Friday, August 19, 2011
Feds seeking LWOP sentence for priest involved with kiddie porn
This new Kansas City Star article, which is headlined "Federal prosecutors want life sentence for priest in child pornography case," reports on a notable child porn case involving notable defendant. Here are the details:
A Catholic priest accused of producing child pornography should receive life in prison if convicted, federal prosecutors declared Thursday. Prosecutors disclosed their sentencing goals in a motion asking that the Rev. Shawn Ratigan remain in jail pending trial. They filed the paperwork just minutes before Ratigan’s first federal court appearance on 13 counts of production, attempted production and possession of child pornography.
John P. O’Connor, Ratigan’s lawyer, entered not guilty pleas to all the federal charges on his client’s behalf. The priest, dressed in black jail scrubs and still sporting a bushy, full beard, did not speak during his brief appearance.
Because Ratigan has not been able to make bond on three Clay County counts of possessing child pornography, U.S. Magistrate Judge Sarah W. Hays said she would defer ruling on the federal detention motion unless it became necessary.
The court filings also disclosed new information about how leaders of the Roman Catholic Diocese of Kansas City-St. Joseph responded when they learned that troubling photographs had been discovered on Ratigan’s computer. The priest had given that computer to a technician for repair in December.
Ratigan allegedly lied to his supervisors when they asked if he had taken the pictures, court records said. In addition to various “upskirt” and “crotch” photographs, the supervisors asked Ratigan about a “close-up vaginal” photograph found on his computer, court records said. Other court records have described that picture as a girl lying down with her panties pulled aside.
Church officials have not described their initial discussions with Ratigan about the photographs, but have suggested that they weren’t certain that the pictures constituted child pornography. In a statement on May 20, just after Ratigan was arrested on the state charges, Bishop Robert Finn said that he had learned in December about “images of an unclothed child who was not identifiable because her face was not visible.”
The diocese soon described the images to a Kansas City police officer and showed them to a lawyer, Finn said. Both said the images were troubling, but were not child porn because they did not show “sexual conduct or contact,” according to Finn.
Federal prosecutors later concluded that the image that Ratigan denied taking was pornographic and charged him....
Immediately after church officials seized Ratigan’s computer, the priest attempted suicide, received psychiatric care and was assigned to live in an Independence mission house.
Prosecutors disclosed Thursday that in addition to accessing Facebook from a computer in a common area of the house, Ratigan also purchased a computer, which he used in his apartment for about 10 days before his arrest. Images of a 12-year-old girl found on that computer, taken on Easter Sunday, April 24, formed the basis of a charge against Ratigan of attempted production of child pornography.
Wednesday, August 17, 2011
Texas giving up unilateral branding as sex offenders those not convicted of sex crimes
This interesting piece from the Austin American Statesman reports on notable developments with sex offender designations in Texas. The piece is headlined "Some Texas parolees freed of sex offender label; After losses in court, state changes how it deals with those not convicted of sex crimes," and here are excerpts:
After years of fighting in court against giving parolees a hearing before they are classified as sex offenders, state officials have begun dropping the sex offender designations — in some cases without administrative hearings, according to parole attorneys.
Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles, and Stuart Jenkins, parole director for the Texas Department of Criminal Justice, who have steadfastly defended the past policy in court, could not be reached for comment Tuesday.
The change occurred after an 8-0 ruling by the Texas Court of Criminal Appeals in May affirmed what several federal courts previously had ruled: The parole board cannot unilaterally decide whether to brand a prisoner as a sex offender if he or she has not been convicted of a sexual offense.
By officials' earlier estimates, as many as 6,900 of the 80,600 parolees could be affected by the change. To review those cases would require perhaps as many as 1,000 hearings a week — an impossible number, some parole officials had said.
The change caps more than a decade of court challenges, including at least five high-profile court decisions branding the action without hearings unconstitutional...
Attorneys who have seen parolees' Condition X designations removed said the policy change is long overdue. "This is a huge change," Austin attorney Gary Cohen said. "The law has been clear for years on this. But it just shows the institutional mentality of parole officials: Instead of doing the right thing, they resist and resist and resist and continue losing in court. If they had (changed the policy) years ago, as they should have, they would have saved a lot of money and litigation."
Bill Habern, a Riverside attorney who filed several of the cases that resulted in adverse decisions for parole officials, agreed. "That May decision was the nail in their coffin," he said. "There are thousands of cases that could be affected."
Friday, August 12, 2011
South Dakota high court rejects constitutional challenges to sex offender loitering crime
As reported in this AP article, the South Dakota Supreme Court earlier this week rejected a constitutional attack on a state law crminalizing loitering by sex offenders. Here are the details:
A state law barring registered sex offenders from loitering near schools, public parks and public playgrounds is constitutional because it provides sufficient warning of what conduct is prohibited, the South Dakota Supreme Court ruled Thursday.
The high court's unanimous ruling upheld the conviction of a Sioux Falls man who argued the law is unconstitutional because it is too vague. Kenneth Dale Stark, 61, was convicted of two counts of loitering in a community safety zone after law officers observed him near two public parks in Sioux Falls. A circuit judge then sentenced him to six years in prison....
After a woman reported that someone in a vehicle registered to Stark was watching or following children going to swimming lessons in April 2009, law officers followed Stark after he left work the following day. They testified in his trial that they saw Stark circle one park for about 20 minutes and later saw him drive away after being parked near another park....
During his trial and in the appeal, Stark argued the law was too vague and violated his constitutional freedom to loiter for innocent purposes. He contended he just drove past the first park and pulled over near the second park to yield to an oncoming car and allow some children to cross the street....
South Dakota law specifically prohibits registered sex offenders from loitering within 500 feet of any school, public park or public playground for the purpose of observing or contacting minors, the Supreme Court ruled. That language limits application of the law to loitering that has an apparently harmful purpose or effect, the justices said. "The statutes at issue were sufficient to provide Stark with notice that his conduct was prohibited, and they did not authorize the law enforcement officers in this case to act in an arbitrary or discriminatory manner," Justice Glen Severson wrote for the court.
The full opinion in South Dakota v. Stark is available at this link.
Wednesday, August 10, 2011
"Bronx Judge Finds Constitutional Defect in Sex Offender Law"
The title of this post is the headline of this New York Law Journal article from earlier this week. Here is how it begins:
A Bronx judge has ordered the state to release a potentially dangerous sex offender because of a constitutional defect in the Mental Health Law. Supreme Court Justice Colleen Duffy held in State v. Enrique T., 2011 NY Slip Op 21269, that the law empowering New York to civilly manage sex offenders after they have completed a criminal sentence unconstitutionally requires confining them before there has been a trial to determine if civil confinement is even necessary.
Justice Duffy found that the law is rendered facially unconstitutional by the fact that it does not permit any less restrictive remedy. Her decision follows a federal court decision in March by Southern District Judge Deborah A. Batts that came to the same conclusion.
The rulings center on the 2007 Sex Offender Management and Treatment Act, which permits the "civil management" of sex offenders who have completed their criminal sentence but remain a danger to society. Under the law, if a court finds probable cause that a convicted sex offender remains a danger, the individual must be confined until a civil trial.
At trial, the attorney general has the burden of establishing by clear and convincing evidence that the offender suffers from a "mental abnormality" that predisposes him to commit sex crimes. If the attorney general prevails, the court then determines if the individual requires involuntarily confinement in a mental institution, or if the offender can safely be managed through strict, intensive community supervision.
In the case at hand, Justice Duffy in May found probable cause that Enrique T. was in need of civil management and issued an interim order holding that he is a danger to the public. Her decision last week addresses whether Enrique T. can be confined until trial, as required by Mental Hygiene Law §10.06(k).
Relying primarily on the U.S. Supreme Court's ruling in United States v. Salerno, 481 U.S. 739 (1987) — and referencing Judge Batts' directly on point decision in Mental Hygiene Legal Service v. Cuomo, 07 Civ. 2935 — Justice Duffy held §10.06(k) facially unconstitutional. Salerno held that pretrial detention is permissible under the Fifth and Fourteenth amendments only when the public safety interest would not be satisfied with less restrictive conditions.
Tuesday, August 09, 2011
Sentencing jury gives Warren Jeffs life PLUS twenty years for child rape offenses
As detailed in this CNN report, "[p]olygamist leader Warren Jeffs was sentenced Tuesday to life in prison plus 20 years for sexually assaulting two girls he claimed were his 'spiritual wives'." Here is more:
Jeffs, 55, will have to spend at least 45 years in prison before being eligible for release, according to Jerry Strickland, spokesman for the Texas Attorney General's office.
The jury sentenced Jeffs to life in prison for aggravated sexual assault of a 12-year-old girl and 20 years in prison for the sexual assault of a 15-year-old girl. He must serve at least 35 years of the life sentence and half of the other sentence, Strickland said. The judge in the case ordered that the sentences be served consecutively.
Sounds about right to me.
"With nowhere to go, sex offenders file suit: New school ousts nearby safe house residents"
The title of this post is the headline of this new local article from Delaware, which begins this way:
For nearly three years, 52-year-old Richard Paredes has lived on Wilmington's East Side, sharing quarters with men recently released from prison who have nowhere else to live. Paredes, a former teacher, also works out of the home as a case manager trying to find jobs and permanent housing for the former offenders.
But by next week, Paredes and the other registered sex offenders living at the Harriet Tubmans Safe House -- one of the few places in the state that takes in homeless registered sex offenders -- must move out. That's because of a learning center and preschool that recently opened less than 500 feet from the safe house.
"I understand the law, but there also should be like a pre-existing clause like in some other states," said Paredes, who was convicted of two sexual offenses. "This program has been here first, and this program actually is respected by the community."
Under Delaware law, certain sex offenders are not permitted 500 feet from a school, even if the school opens after the registered sex offender began living there.
Harriet Tubmans Safe House, which consists of two homes less than a block away from each other, housed about 24 people at one time. But since Wilmington police informed them of the coming evictions, 11 registered sex offenders have moved out. Five others remain there hoping a federal lawsuit will allow them to stay in at least one of the houses.
Sunday, August 07, 2011
Massachusetts top court finds constitutional problems with state law barring certain sex offenders from nursing homes
As detailed in this Boston Globe article, which is headlined "SJC limits nursing home ban on sex offenders," the top state court in the Bay State found unconstitutional as applied a legislative restriction on sex offender residency in a nursing home. Here are the basics from the article:
A state law that makes it illegal for dangerous sex offenders to live in a nursing home was unconstitutionally used to try to oust a man from a Boston home, the Supreme Judicial Court ruled yesterday.
In a unanimous ruling, the high court said that the rights of the offender, identified only as John Doe, were violated when Boston police invoked the law in 2010 and told the frail 65-year-old he had to leave the nursing home where he was living. The court said the statute overreached in providing no opportunity for the offender to make the case that he could safely stay.
Attorneys familiar with the case said the ruling is narrowly written and technically applies only to John Doe’s situation. But advocates for aging sex offenders in need of long-term care said they hope the court’s criticism of the state law will sway nursing home administrators to let sex offenders into their facilities when the risk they pose is low.
The court previously ruled that it was constitutional for these offenders to lose protections, such as privacy rights, after being classified as a Level 3 offender, those considered most likely to reoffend, by the Sex Offender Registry Board. But the court said the state law barring Level 3 offenders from nursing homes goes too far under the state’s Declaration of Rights, because it transforms a person’s right to choose where to live into a crime.
The full ruling in Doe v. Police Commissioner of Boston is available at this link, and it begins this way:
The plaintiff is a level three sex offender currently residing in a rest home. Pursuant to a statute enacted by the Legislature in 2006, a level three sex offender who "establish[es] living conditions within, move[s] to, or transfer[s] to" a long-term care facility such as a rest home commits a crime. See G. L. c. 6, § 178K(2)(e), inserted by St. 2006, c. 303, § 6 (§ 178K[e], or the statute). The plaintiff asks this court to declare § 178K(2)(e) unconstitutional as applied to him. We conclude that the statute infringes on the plaintiff's protected liberty and property interests and violates his right to due process; because the statute fails to provide for an individualized determination that the public safety benefits of requiring him to leave the rest home outweigh the risks to the plaintiff of such a removal, the statute is unconstitutional as applied to the plaintiff.
Thursday, August 04, 2011
Texas state jury now in charge of sentencing after convicting Warren Jeffs of child rape
As detailed in this new AP report, this afternoon a "Texas jury convicted polygamist sect leader Warren Jeffs of child sexual assault Thursday in a case stemming from two young followers he took as brides in what his church calls 'spiritual marriages'." Here are more details:
The 55-year-old head of the Fundamentalist Church of Jesus Christ of Latter Day Saints stood stone-faced as the verdict was read. Jeffs, who acted as his own attorney, faces up to life in prison. The jury went immediately into sentencing proceedings. They had deliberated on a verdict for more than three hours.
Police had raided the group's remote West Texas ranch in April 2008, finding women dressed in frontier-style dresses and hairdos from the 19th century as well as seeing underage girls who were clearly pregnant. The call to an abuse hotline that spurred the raid turned out to be a hoax, and more than 400 children who had been placed in protective custody were eventually returned to their families.
But authorities brought charges against several men from the group, with Jeffs by far the highest-profile defendant. Prosecutors used DNA evidence to show Jeffs fathered a child with a 15-year-old girl and played an audio recording of what they said was him sexually assaulting a 12-year-old girl. They also played audio recordings in which Jeffs was heard instructing young women on how to please him sexually.
Jeffs has claimed he was the victim of religious persecution. The FLDS, which has at least 10,000 members nationwide, is a radical offshoot of mainstream Mormonism. The church believes polygamy brings exaltation in heaven and that Jeffs is God's spokesman on earth. Jeffs stood mute and expressionless, staring at the floor, for all but a few seconds of the half hour he was allotted for a closing argument on Thursday. At one point he mumbled, "I am peace," and said no more....
Jeffs represented himself after firing seven attorneys in the six months leading to the trial. He broke his courtroom silence with an objection marked by a nearly hourlong speech defending polygamy, and twice threatened the judge and the court with warnings of punishment from God....
The lone defence witness Jeffs called, church elder JD Roundy, spent about 10 minutes on the stand Thursday discussing FLDS history after 4 1/2 hours of testimony Wednesday evening....
Eleven other FLDS men were charged with crimes including sexual assault and bigamy. All seven of those who have been prosecuted were convicted, receiving prison sentences of between six and 75 years.
Any advice for, or predictions about, what the sentencing jury should or will do here?
New Heritage Foundation paper urges all states to adopt federal SORNA rules
A notable new paper concerning the federal efforts to have national sex offender notification rules and regulations appears here via The Heritage Foundation. The paper is authored by Charles Stimson and Maya Noronha, and is titled "Get SMART: Complying with Federal Sex Offender Registration Standards." Here is the abstact:
Just before Christmas 2009, 11-year-old Sarah Haley Foxwell was brutally raped and murdered by a convicted high-risk sex offender, Thomas J. Leggs. Although Leggs was classified as a high-risk offender in Delaware, because of inconsistencies in sex offender classification between states, Maryland identified Leggs as “compliant.” Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006 to provide minimum registration and notification standards for all jurisdictions. Yet, for several years, jurisdictions have made flimsy excuses — often the product of misinformation — for not implementing SORNA. The time for excuses is past. Not only are the reasons for delaying implementation of SORNA invalid, but the dangers of allowing this nation’s sex offender laws to remain so inconsistent are extraordinary.
Some recent related posts:
- Years later, Adam Walsh Act not a real fix for sex offender registries
- States persist in resistance to Adam Walsh Act sex offender rules five years latter
- Ohio Supreme Court finds new Ohio SORNA-compliant sex offender requirements punitive
- "Sex Offender Registration and Notification Laws at Home and Abroad: Is an International Megan’s Law Good Policy?"
- Noting state resistance to federal law on sex offender registries
Wednesday, August 03, 2011
"U.S. says online child pornography network dismantled"
The title of this post is the headline of this Reuters piece. Here are the basics:
U.S. authorities said on Wednesday they have dismantled an online bulletin board allegedly used by 600 people in the United States and abroad to trade graphic images and videos of child sex abuse.
They said more than 70 people have been charged in the United States with taking part in the alleged child pornography network dubbed "Dreamboard," a private, members-only online bulletin board....
U.S. officials called it the largest prosecution of individuals who participated in an online child exploitation enterprise operated for the purpose of promoting child sexual abuse, disseminating child pornography and evading law enforcement.
Of those charged in the United States, 43 have been arrested in this country and nine foreign nationals have been arrested overseas, including accused bulletin board administrators located in Canada and in France, they said.
The board's administrators required prospective members to upload child pornography when applying for membership. They also used encryption and aliases rather than their real names in an effort to avoid detection, the officials said.
The bulletin board, created in 2008, folded in the spring of this year when members became aware of the U.S. government's investigation, Justice Department officials said. The 600 members offered to trade images and videos of infants and children 12 and younger, contained in some 27,000 posts, the authorities said. The criminal charges carry sentences ranging from 20 years to life in prison.
I am always pleased to see these kinds of reports indicating that the federal good guys have captured a whole bunch of baddies. But I fear that, given the depressingly large number of individuals involved in child pornography offenses, this may amount to just a few more buckets of smut being bailed from this revolting ocean.
Tuesday, August 02, 2011
"The Eleventh Circuit's Selective Assault on Sentencing Discretion"
The title of this post is the title of this notable new article focused in large part on the Eleventh Circuit's notable reasonableness decision in the controversial Irey case (basics here and here). Here is the abstract:
Ever since the Supreme Court declared that the sentences which district courts impose on criminal defendants are to be reviewed on appeal for “unreasonableness,” the standard’s contours have remained elusive and mired in controversy, despite the Court’s repeated attempts at elucidation. In few instances is this confounding state of affairs more apparent and acute than in the Eleventh Circuit’s recent lengthy and factious en banc decision in United States v. Irey.
This article explores Irey’s merits, mistakes, and lessons, trying to locate each within the broader context of the Eleventh Circuit’s sentencing jurisprudence. In doing so, the article advances three principal arguments. First, Irey represents a serious and unlawful encroachment on district courts’ sentencing discretion, one based in part on misguided notions of culpability, mental illness, deterrence, the severity of supervised release, and obeisance to the Sentencing Guidelines. Second, Irey’s lasting impact is likely an increased yet largely unjustified pressure on district courts to sentence defendants more harshly, particularly for sexual offenses. Third, Irey and its predecessors demonstrate that in reviewing for unreasonableness, the Eleventh Circuit unnecessarily and unfairly wields a single-edged sword, capable of striking what is perceived as an unduly lenient sentence yet impotent against an unduly harsh one. Recognizing the pretextual nature of much sentencing discourse — in which stakeholders inconsistently advance varyingly deferential degrees of appellate review suspiciously consonant with the practical sentencing outcomes they desire — the article concludes with a call for appellate judges to transcend such partisanship and exercise dispassionate, reasoned, and balanced (i.e., double-edged) sentencing review.
Monday, August 01, 2011
Continued controversy over defendant gettting jailhouse access to kiddie porn he created
Regular readers may recall this post last month discussing an interesting local criminal procedure story out of Washington, headlined "Accused sex offender allowed to watch child porn in jail." The story has developed further and has now hit the New York Times via this piece headlined "Furor Over Giving Rape Suspect Explicit Tapes." Here are excerpts:
[Weldon Marc] Gilbert created more than 100 videos of the boys, sometimes turning the camera on himself. In 2009, he pled guilty in federal court to 31 counts of producing child pornography involving 17 victims and was sentenced to 25 years in prison.
While Mr. Gilbert sits in jail here, he is preparing for another trial next month, this time on state charges of rape and molestation. In this case, he is acting as his own lawyer. And as such, he is allowed to review the evidence against him — including the pornographic videos — and watch them as often as he likes. Restricting his access could result in a mistrial.
Local law enforcement officials are furious, but there is not much they can do about it. “It’s absurd and maddening,” said Mark Lindquist, the prosecutor for Pierce County, which includes Tacoma, where the state trial is to begin Sept. 19. While defendants normally can view evidence against them, Mr. Lindquist said, they are not usually allowed to possess it, particularly when it is contraband like pornography.
“Defense attorneys typically ask to see some portion of the pornography that will be used as evidence, review a nominal amount of it and leave,” Mr. Lindquist said. “I have never had a case where a defense attorney wanted to possess the pornography. We don’t turn cocaine over to defendants for them to personally check out.”
After a local television station, KOMO, reported the situation last month, there was a public protest at the jail here where Mr. Gilbert is being held. Many state legislators have vowed to change the law but they cannot do so in time to affect Mr. Gilbert’s case. Mr. Lindquist said his office would draft language that would “pass constitutional muster,” though he expects challenges from defense lawyers concerned about the rights of defendants.
Unlike most inmates, who follow their lawyers’ advice not to discuss their cases with the news media, Mr. Gilbert, 50, who flew for U.P.S., is speaking out from behind bars. He sent a four-page handwritten letter to Mr. Lindquist early last month, denouncing him and others for stirring up the outcry against him. He blamed officials for giving the public the impression that he was reviewing the tapes for his own prurient interests and noted that this was “ludicrous” since he had to look at them in a separate room monitored by corrections officers and with his private investigator present.
He told Mr. Lindquist to drop the charges because he was not guilty. He also suggested that Mr. Lindquist was pursuing the case for his own political advantage. “Who, beside yourself, benefits from the second round of prosecution?” Mr. Gilbert asked. In response, Mr. Lindquist said he did not give “a free pass” to criminals just because they were already serving time....
Federal prosecutors have described Mr. Gilbert, who lived in an expensive house in Lake Tapps, just east of Tacoma, as a “master manipulator” who would groom his victims to gain their trust before abusing them. “Gilbert saw each of the dozens of boys that he sexually abused as sex objects he could obtain by giving them things,” federal prosecutors wrote a few years ago. He gave them money, cellphones, flying lessons, trips overseas, strippers and alcohol, they said — even help with their homework. “His sexual sadism and his fascination with boys was the center of his life,” they wrote.
John Henry Browne, a lawyer from Seattle who represented Mr. Gilbert on the federal charges and helped arrange the deal under which Mr. Gilbert pleaded guilty, is acting as standby counsel in the state case. He said in an interview that Mr. Gilbert was exercising his constitutional rights and that they should be protected.
Mr. Browne also said that he — and Mr. Gilbert — had watched the videos a few years ago in preparing for the federal case. He said 90 percent of them were “silly” and described them as “birthday spankings.” The remaining 10 percent, he said, were “problematic.”
Recent related post:
Sunday, July 31, 2011
Years later, Adam Walsh Act not a real fix for sex offender registries
As effectively reported in this lengthy CNN piece, headlined "5 years later, states struggle to comply with federal sex offender law," an attempt by Congress to bring national order to sex offender registries has not been a complete success. Here are highlights from a must-read for anyone follwing these issues:
Five years ago this week, President George W. Bush signed the Adam Walsh Child Protection and Safety Act with the intention of making it the law of the land for keeping tabs on sex offenders.
Named for the 6-year-old whose slaying by a stranger galvanized child safety reforms and turned his father, John Walsh, into one of the nation's most recognizable victims' advocates, the law set forth the most comprehensive national standards to date for monitoring sex offenders in America's communities.
This week also marks a key deadline for states, tribes and U.S. territories to meet the act's requirements or face a 10% cut in federal justice assistance funding, not exactly small change in tight economic times.
As of Wednesday, the 30th anniversary of Adam Walsh's disappearance from a Florida department store, 14 states, nine tribes and the territory of Guam had "substantially implemented" what's known as the Sex Offender Registration and Notification Act, or SORNA, provisions of the Adam Walsh Act. On the eve of the July 27 deadline, last-minute submissions were pouring into the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, known as the SMART office.
The law expanded the categories of crimes eligible for registration and increased the period and frequency of registration for certain adults and juveniles, effectively growing registries by as much 500% in some states. It called for jurisdictions to retroactively register some adult offenders who'd already done their time on the registry. It also called for registration of certain juveniles who'd been shielded from the registry in the past, based on the notion that confidentiality offers them a greater likelihood of rehabilitation.
The goal was to corral the information into a national public registry and FBI database. But the act is still very much a work in progress.... Many states don't want to change their laws; others believe the legislation's cost outweighs its predicted benefits, she said. Texas has put the estimated federal funding cuts at $1.4 million, compared to a cost of $38.7 million....
Controversial legal issues like retroactive registration -- requiring an offender who was sentenced before the legislation to follow the new rules -- and juvenile registration get the most notice. For most states, however, the biggest hurdles are implementing technology and adjusting statutes, said Linda Baldwin, director of the SMART office....
The effectiveness of registries -- for sex crimes and other offenses -- has long been a topic of debate. Supporters ... tout their public safety benefits, while critics say they can have the unintended consequence of destabilizing sex offenders....
Some states have attempted to evaluate the benefits of SORNA. In Texas, home to more than 60,000 registered sex offenders, a 2010 report from the Senate Criminal Justice Committee concluded, "It is clear registries do not provide the public safety," noting the issue contained "gray areas." The California Sex Offender Management Board also recommended against implementing the provisions of the Adam Walsh Act, stating, "California state law and practice related to offender risk assessment, juvenile registration and sex offender monitoring is more consistent with evidence-based practice that can demonstrate real public safety outcomes."
People on both sides of the debate agree that truly dangerous sexual predators, such as pedophiles and rapists, need to be monitored closely if they're going to be released into communities....
Laws vary from state to state, but examples of offenses under SORNA that could land someone on the registry range from sexual contact with a minor or rape of an adult, non-parental kidnapping or false imprisonment to possession or distribution of child pornography. The so-called "Romeo and Juliet" cases, or consensual sex involving at least one person under 18, do not require registration if neither person is more than four years older than the other, but discretion lies with law enforcement and prosecutors.
Each offense is tied to a specific tier that designates whether an offender registers for 15 years (Tier I), 25 years (Tier II) or for life (Tier III). Critics say that using offense-based registration instead of an approach based on risk-assessment -- favored by states like Texas and California -- pulls too many offenders onto the registry and overburdens law enforcement, preventing police from keeping a close eye on the worst of the worst....
Besides Ohio, states that have adopted SORNA are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, South Carolina, South Dakota, and Wyoming. The number of offenders on Wyoming's registry increased from 125 to 1,450 after the state moved from risk-based assessment to a tier system for registration, said Kevin R. Smith, deputy director of the state's Criminal Justice Information Services.
This front-page article in today's Columbus Dispatch, headlined "Ohio sex offender registry a mess; Supreme Court has twice ruled it unconstitutional," details many of the challenges Ohio has faced upon being the first state to adopt the registries rules of the Adam Walsh Act.
Friday, July 22, 2011
Two Seventh Circuit opinions reject efforts to assail lengthy child porn and child enticement sentences
The Seventh Circuit today issued a pair of rulings affirming lengthy sentences over various objections for two men who have now learned the hard way that federal law provides severe punishment for making bad use of a computer.
US v. Brucker, No. 10-3057 (7th Cir. July 22, 2011) (available here), rejects a series of creative constitutional challenges to the 10-year mandatory minimum prison term imposed on a 62-year-old man who sought to hook-up with a 15-year-old "Lisa," who turned out to be "in fact an online persona for a deputy in the Peoria County Sheriff’s Office."
US v. Adams, No. 10-2968 (7th Cir. July 22, 2011) (available here), rejects a series of not-so-creative reasonableness challenges to the 15-year (below-guideline) prison term impose on 38-year-old Air Force veteran man who traded lots of awful kiddie porn via the Limewire program.
I am not sure there is anything all that legally notable about these two opinions, but I cannot help but note how mundane these offenders and their significant sentences now appear to anyone who follows federal sex offender prosecution and sentencing.
Wednesday, July 20, 2011
NJ appeals court upholds lifetime sex offender registration based on buttocks horseplay by 14-year-olds
A helpful reader altered me to this notable sex offender registration news story coming from New Jersey, which is headlined "2 N.J. teens labeled sex offenders for life after 'horseplay' incident." Here are the basics:
Call it bullying or call it horseplay. Either way, a state appellate court panel says roughhousing with a sexual connotation by a pair of 14-year-old Somerset County boys was a crime that requires them to register as sex offenders for the rest of their lives.
In a decision handed down Monday, the three-judge panel acknowledged the severity of its decision, but said it was bound to uphold the law. "We are keenly aware that our decision may have profound lifelong ramifications for these two boys as well as others similarly situated," Judge Jose Fuentes wrote.
One of the boys, whose case went to trial, said he had sat on the faces of a pair of 12-year-old schoolmates with his bare buttocks in November 2008 "cause I thought it was funny and I was trying to get my friends to laugh," he told a family court judge.
But an act is considered criminal sexual contact if it is done for sexual gratification or to degrade or humiliate the victim, and punishable by lifetime registration — even for juveniles — under Megan’s Law, which requires a person convicted of a sex crime against a child to notify police of changes of address or employment.
The trial judge concluded the teenager intended to humiliate or degrade his victims and found him guilty of criminal sexual contact. The second teenager who was implicated pleaded guilty to criminal sexual contact, and received the same penalty.
The full appellate court opinion in this case is available at this link.
Tuesday, July 19, 2011
Seeking information on large number “other government-sponsored departures” in federal child pornography cases
Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced. An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post. Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.
As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1. But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.
But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure. (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.) Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).
Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure. I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.
These data and realities prompt a range of follow-up questions. I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases. I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others. I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures. I wonder if this trend will continue and expand to other kinds of cases.
I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand. I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.
July 19, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Friday, July 15, 2011
Might horrific Jaycee Lee Dugard case have led SCOTUS to permit death penalty for child rape?
The question in the title of this post is prompted by this new commentary by Charles Lane for the Washington Post, which is headlined "The justices and Jaycee Dugard." Here is how the piece starts and ends:
A Stolen Life, Jaycee Lee Dugard’s harrowing memoir of sexual torture and confinement at the hands of Phillip Garrido, has hit the top of Amazon’s best-seller list. I read it, astonished at her courage and her eloquence — and disgusted at the crimes Garrido, on parole for a previous rape, committed against Dugard for years, starting when she was 11.
I also wondered how history might have been different if Dugard had escaped from her 18-year hell before the Supreme Court’s 2008 decision in Kennedy v. Louisiana, instead of a year after it. This was the case in which the court voted 5-4 to ban the death penalty for raping a child. No future Phillip Garrido need ever fear execution, though many who read Dugard’s book will agree with me that he would richly deserve it.
At the time, the majority opinion by Justice Anthony M. Kennedy struck me as a mixed salad of moralizing and debatable assertions. Post-Dugard, it’s even less persuasive. ...
To be sure, Phillip Garrido, now sentenced to 431 years, would never have faced capital punishment in California even prior to Kennedy v. Louisiana, because the state didn’t allow it except for murder. (His accomplice wife, Nancy Garrido, is also in prison).
And Justice Kennedy — joined by Justices John Paul Stevens, Stephen A. Breyer, David H. Souter and Ruth Bader Ginsburg — was not wrong to worry about allowing capital punishment for any rape, given this country’s sorry history of racially-biased sex-crime prosecutions. The court has rightly ruled that the death penalty should be limited to the “worst of the worst”; reasonable people can debate whether non-lethal crime belongs in that category.
But that’s the point: These are as much policy issues as constitutional ones, and the court was wrong to trump the people’s representatives, especially on such a flimsy factual foundation.
If anything, there’s a “national consensus” in favor of the death penalty for raping a child. A poll after the court’s ruling showed that only 38 percent of the public agreed with it, while 55 percent disagreed.
A major presidential candidate said that “the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution."
Barack Obama was exactly right.
Wednesday, July 13, 2011
"Accused sex offender allowed to watch child porn in jail"
The title of this post is the headline of this local article out of Washington state concerning a story which becomes somewhat less alarming (though still notable) when all the details are explained. Here are all the details:
A strange quirk in the law is allowing an accused child rapist to watch child pornography inside the Pierce County Jail. Marc Gilbert is accused of sexually assaulting young boys and videotaping the abuse.
Under the law, defense attorneys are allowed to review material tied to the case. And because Gilbert has chosen to act as his own attorney, he has had unlimited access to the pornographic footage. Therefore, the jail says it has no choice but to allow Gilbert to review the footage times over with no limits. Restricting his access would risk a mistrial.
Investigators seized from Gilbert's possession more than 100 DVDs containing 28 hours of pornographic footage. Some of the material was allegedly shot by the former jet pilot, and feature the young boys he's accused of luring to his home and exploiting.
The prosecutor and the sheriff say the results of the legal loophole are sickening in this case, but say the state Supreme Court has ruled in Gilbert's favor. "Make no mistake -- I don't like it," said Pierce County Sheriff Paul Pastor. "But it is not my choice whether to do it or not to do it. There's no question that I don't like it. There's no question that this makes me grind my teeth."
"We don't like it. We don't want to do it, but we have to follow the law. The fix here is to change the law," said Pierce County Prosecutor Mark Lindquist.
To make sure no other inmates get a chance to see the pornography, Gilbert is made to review them in a separate room. Child advocates say allowing the tapes to be viewed further victimizes the victims.
I am not sure it is quite right to describe this defendant's right to defend himself by having access to the evidence against him as a "strange quirk in the law" or as a "legal loophole." Nevertheless, as the headline suggest, this is a story that seems sure to be sensationalized.
Digging a bit deeper, I wonder about the local prosecutor's suggestion that the "fix here is to change the law" concerning access to trial evidence by the defense team: could there be constitutional problems with entirely preventing a defendant from having at least some access to the principal evidence to be used against him at trial?