Thursday, May 16, 2013
When can and how should sex offenders be responsible for harming property values?The provocative question in the title of this post is prompted by this recent local article from Pennsylvania headlined "Judge: Sex offender not required to buy victim's property." Here are excerpts:
A Lehigh County couple who say a neighbor who admitted molesting their child should be forced to buy their property apparently won't get their wish.
County Judge Michele A. Varricchio has shot down the Upper Milford Township couple's unusual request that sex offender Oliver Larry Beck be required to purchase their $235,000 property, according to court records. Varricchio issued the order last week, explaining that forcing a sex offender to buy the home of a victim living in his neighborhood would "open the proverbial floodgates."
"This court finds it against public policy to require a defendant to purchase a plaintiff's property in a nuisance case," Varricchio wrote. The judge added that ordering the home purchase would "impose almost limitless liability on a property owner by every other neighbor who claims difficulty selling his or her property, regardless of the proximity to the alleged nuisance."
Varricchio was ruling on preliminary objections in a lawsuit filed against Beck, along with Beck's wife and mother. The couple whose daughter was molested by Beck filed the suit in December asking a judge to order Beck to buy their home and pay for the child's pain and suffering and for other damages. They claim the property is virtually unmarketable....
They still are eligible to seek damages for their child's suffering and for the loss in value of their property, although Varricchio said they are not entitled to be paid for the total value of the property. Varricchio's order says that that the victim's family should amend the lawsuit to provide details and proof of the loss in the value of their property.
"There is no doubt that the parents have a right to enjoy their own residence and property without the invasion and interference caused by [Beck]," Varricchio wrote. "Property rights are protected by the United States Constitution, but the equal protection clause affords both plaintiffs and defendants that protection."...
There is some scientific evidence that sex offenders lower property values. Two economics professors at Columbia Business School in 2008 studied the effect, finding that the value of homes within one-tenth of a mile of a sex offender dropped by an average of 4 percent.
The suit accuses Beck of sexual assault, infliction of emotional distress, fraud and negligence, among other claims. It also names as defendants Beck's wife and mother, claiming both knew or should have known of Beck's attraction to young children.
Beck, now 65, pleaded guilty in 2011 to indecent assault of a child under 13 and served time in prison. He is out of prison, but under Megan's Law must register as a sex offender for the rest of his life. Investigators said that in February 2011, Beck lured the victim, then 7 years old, into his house by saying he wanted to show her a bear's head mounted in his basement. After telling the girl to feel the bear, Beck told her to take off her shirt and pants and then assaulted her, according to court records.
Beck's attorney, Robert J. Magee of Allentown, wrote in a court brief that the demand for the home purchase was "not appropriate or authorized under a legal or equitable theory." He added that the victim's family is still able to use and enjoy the property. He added, "This is just a type of injury that allows for no recourse, an injury without a remedy."
Varricchio also dismissed the couple's request that Beck pay their attorneys' fees. In addition, she dismissed a claim against Beck's wife that she be held partly liable for their property value loss.
May 16, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (41) | TrackBack
Friday, May 10, 2013
Notable new Oregon bill to allow some young sex offenders to get off registryIn this recent post about the Second Amendment rights of registered sex offenders prompted a lengthy comment thread about who does and does not end up on sex offender registries. With that discussion fresh in mind, I found this AP story about a bill making its way through the Oregon legislature interesting:
Some young offenders convicted of having sex with underage partners would be able to request the crime be removed from their records under a bill narrowly passed by the Oregon House on Wednesday. Voting 31 to 27, the House sent the bill to the Senate with little discussion.
Under the bill, in order for adult offenders to apply to have their records erased, coercion or force could not have been used in the sex act. Other conditions include completion of all required court-ordered programs and treatments.
Proponents say the current punishment for such sex offenders does not fit the crime. Opponents say people convicted of sex crimes often reoffend and should not be able to have their records expunged. "Individuals who commit sex offenses ... this isn't their first time and it won't be their last," said Crook County District Attorney Daina Vitolins, who opposes the bill on behalf of the Oregon District Attorneys Association. To say an act is consensual when it involves a person who is too young to give consent is indefensible and minimizes the law, Vitolins said.
For offenders to have their records cleared under the proposed law, they could be no more than five years older than the victim, and the victim must be at least 14. For sex crimes committed by a minor, the victim must be at least 12 and the age difference can be no more than three years.
House Speaker Tina Kotek, a sponsor, brought the legislation forward after hearing from a constituent who was 14 when his friend's parents reported him to the authorities for engaging in inappropriate behavior — which did not involve intercourse — with their young daughter. "This is the difference between a life of hopelessness and a future for this individual," the Portland Democrat told lawmakers last month.
Among those testifying for the bill was Matthew Shettles, who served three years' probation on a charge of sex abuse for having sex with his girlfriend in 2004 on the night of his high school graduation. In written testimony, Shettles said he had just turned 18 at the time and she was five weeks shy of 15. A counselor learned of the encounter and was required by a mandatory reporting law to inform authorities, he said.
He said having a sex crime on his record has made it difficult to get hired and rent an apartment. Employers and housing agencies often run criminal background checks. "It doesn't seem reasonable that a guy who had sex with his girlfriend should have to pay for the rest of his life," Shettles said in the written testimony.
Under the bill, only sex crimes that meet a specific set of requirements could be erased from an offender's record. Among other things, the person must have successfully applied to be removed from the state's sex offender registry and cannot have been convicted of other serious crimes.
May 10, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Tuesday, May 07, 2013
"The Case for Full Restitution for Child Pornography Victims"The title of this post is the title of this new paper on SSRN co-authored by Paul Cassell, James Marsh and Jeremy Christiansen concerning an issue that has riven the federal circuit courts and seems destined for SCOTUS consideration before too long. Here is the abstract:
This Article explores the issues of restitution to the victims of child pornography and other federal sex offenses in depth and contends that Congress meant what it said in Section 2259 — specifically that child pornography victims must receive an award for the “full amount” of their losses from any defendant convicted of harming them. This approach is consistent not only with the plain language of the statute but the well-established tort principle that any intentional wrongdoer is jointly and severally liable with other wrongdoers for an innocent victim’s losses. Requiring defendants to pay for the full amount of the losses that they have caused will address the significant financial losses suffered by child pornography victims.
May 7, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack
Monday, May 06, 2013
Don't registered sex offenders need gun rights for personal self-defense more than others?The question in the title of this post is my initial reaction to this big newpaper story from Iowa, headlined "50 sex offenders have gun permits: Law enforcement is concerned that state law allows offenders to easily obtain permits." Here are excerpts from the lengthy Des Moines Register story, which is less than fully informative about legal matters, but provides a lot of interesting facts nonetheless:
Joshua Duehr is one of more than 50 sex offenders in Iowa who can carry a gun in public. “I don’t leave the house without one,” said Duehr, who lives in Dubuque.
It’s legal — and it’s news that has surprised some state lawmakers and alarmed a few Iowa and national law enforcement officers. An FBI official, the president of the Iowa State Sheriffs’ & Deputies’ Association, the president of the Iowa State Police Association and two state lawmakers told The Des Moines Register they have public safety concerns after learning that a two-year-old state law on gun permits allows registered sex offenders to obtain a weapons permit....
Some, if not most, applications by sex offenders for permits to carry weapons would have been denied by county sheriffs before 2011, according to officials from the Iowa Department of Public Safety. But under a two-year-old state law, sheriffs no longer have discretion to reject such applications.
The law change means people convicted of misdemeanor sex crimes can now walk the streets, malls or virtually any public place in the state while carrying a gun. Almost all of the sex offenders on the Register’s list were convicted of misdemeanors such as lascivious conduct with a minor or assault with intent to commit sexual abuse.
But the Register found three men convicted of felony sex crimes who had permits to carry weapons in public. Two of those men had their permits revoked by sheriffs after the Register asked about their situations....
Some sheriffs were aware that sex offenders are carrying weapons in public, primarily because they issue the permits and have firsthand knowledge about the issue. But other professionals in Iowa’s law enforcement community were caught off guard.
Rob Burdess, a Newton police detective and the president of the Iowa State Police Association, was unaware that sex offenders are being issued weapon permits until he was asked about it by the Register. He noted that people with felonies or domestic abuse convictions are typically unable to obtain weapon permits, so he questions the logic of allowing sex offenders — even those convicted of non-felony offenses — to carry weapons in public....
[A] review of states surrounding Iowa found that some sex offenders can obtain permits to carry weapons even though authorities said they aren’t aware of a large number being issued. Those states — including Nebraska, Missouri and Wisconsin — have laws similar to Iowa’s that do not specifically exclude sex offenders from obtaining such permits. Minnesota law, however, makes it a misdemeanor for a person required to register as a sex offender to carry a handgun.
Just as state laws vary, so do opinions about whether armed sex offenders inherently pose more of a risk than other citizens. Sex offense recidivism rates are much lower than commonly believed, according to legislative testimony given in multiple states by Jill Levenson, an associate professor at Lynn University in Florida. She is frequently recognized as a national expert on sexual violence....
National uniform crime data from 2006 — the most recent data available — show that about half of all reported sex offenses included a weapon of some form (including the use of fists) but less than 1 percent of all reported sex offenses included the use of a firearm, according to Jason Rydberg, a graduate student at Michigan State. Iowa numbers mirror the national trend. Of the roughly 5,750 people on Iowa’s sex offender registry, 47 — or less than 1 percent — used guns in their crimes, according to data from the Iowa Department of Public Safety....
The Association for the Treatment of Sexual Abusers, a national organization focused on the prevention of sexual abuse, generally advocates for cases to be reviewed individually when assessing if a sex offender is likely to reoffend or jeopardize public safety. “There’s no blanket way of stating that sex offenders are more dangerous than everybody else,” said Maia Christopher, executive director of the association.
Iowa Rep. Clel Baudler, R-Greenfield and a former state trooper, isn’t reassured by the type of research offered by Levenson or groups like the Association for the Treatment of Sexual Abusers. Until he was contacted for this article, Baudler was unaware that the new gun permit law he advocated for in 2010 has allowed dozens of sex offenders to obtain weapon permits....
An Iowa sheriff may deny a permit to carry a weapon if he believes probable cause exists that the person is likely to use a weapon in a way that would endanger themselves or others. Those types of denials typically must be based on documented actions from the past two years. Iowans who believe sheriffs have wrongly rejected their applications for a weapon permit may appeal. Each appeal, generally reviewed by an administrative law judge, can cost a county government and taxpayers hundreds of dollars....
The cost and the real possibility of losing a case is one reason sheriffs don’t deny permits to carry weapons — even in cases where they have reservations — several sheriffs told the Register.
Washington County in January issued a permit to acquire a weapon to Ronald Nicholis Hahn Jr., who has been on the sex offender registry since 2005 because he was convicted of indecent exposure. Dunbar said he approved the permit because Hahn passed background checks. Hahn, 51, said he poses no threat to public safety and that he uses guns for hunting. “My offense happened seven or eight years ago and it has nothing to do with weapons, so why should I be denied the ability to purchase a gun?” Hahn asked.
Rep. Matt Windschitl, R-Missouri Valley, indicated that he believes Iowa’s new weapons permit law doesn’t need to be revised to specifically ban sex offenders. People convicted of felonies, including sex offenders, are already prohibited from obtaining a permit, he emphasized. “If their local sheriff does not have probable cause to restrict that person under current law from being able to obtain a permit, then that’s the situation at hand,” said Windschitl, a gunsmith who has advocated for multiple pro-gun bills.
Aggravatingly, this story fails to note that it is a serious federal crime, subject to up to 10 years imprisonment, for any and all persons convicted of a felony or a domestic violence misdemeanor from even possessing a gun. Thus, as the story indirectly notes, only persons without a felony or domestic violence conviction is even lawfully able to possess a gun, let alone get a lawful state permit for one. (I find notable that somehow three sex offender felons were able to get an Iowa gun permit, which perhaps highlights the need for background checks on how good current background checks are in the permit-issuance process in Iowa.)
More to the point of the question in the title of this post, if we think the Second Amendment right to bear arms is linked in some important and significant way to the natural right of personal self-defense (as Heller suggested), a reasonable claim might be made that it would be uniquely unconstitutional to deny gun permits to otherwise eligible persons on a state sex offender registry. There has long been considerable anecdotal evidence of considerable vigilante violence directed toward persons based simply on their presence on a sex offender registry. Given the history of private violence directed toward sex offenders — not to mention the possibility that local law enforcement might not be too quick to come to the aid of someone they know is a registered sex offender — I can fully understand why Joshua Duehr and other low-level registered sex offender might be afraid to move around in public without packing heat to potentially aid any efforts to exercise their natural right of self defense.
Though I do not fancy myself a Second Amendment expert, I wonder if a state law like Minnesota's prohibiting misdemeanor sex offenders from having a firearm in constitutional in the wake of Heller and McDonald. If and when a low-level sex offender in Minnesota or elsewhere could reasonably document a history of serious personal threats of serious violence directed toward him because of his placement on the registry and asserted a genuine belief in his need for a firearm in order to protect himself, could a state really require his name and address to stay on the sex offender registry while also denying him a right to keep and bear arms to defend himself?
May 6, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (90) | TrackBack
Sunday, May 05, 2013
Notable new Judge Weinstein opinion on child porn sentencing for juve offenderOver the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here). The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:
D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).
The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here).
Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.” How many judges can say that in any criminal case that is resolved by plea? Far, far too few.
Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected. All concerned are best served by following this course.”
This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).
May 5, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack
Wednesday, May 01, 2013
New big Human Rights Watch report assails placing juve sex offenders on registriesAs reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:
Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author. "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."
The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries. One of the boys, from Flint, Mich., killed himself even after being removed from the list....
The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said. "Many have a hard time finding — and keeping — a job, or a home."
According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....
Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries. Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.
According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries. Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.
The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....
Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.
"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...
Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul. "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said. "That's more important than the registry."
The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:
This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.
May 1, 2013 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack
Tuesday, April 30, 2013
Unsurprising (and justifiable?) gender sentencing disparities in NJ teacher-student sex casesAs detailed in this local story, an award-winning, 31-year-old female teacher in New Jersey avoided any prison time at her sentencing yesterday following a plea to sex charges after an illegal relationship a 15-year-old student. Here are the basics:
Erica DePalo was in the prime of her teaching career. Just 31-years-old, with nearly a decade of teaching behind her, letters show the Essex County Teacher of the Year was loved by students and respected by colleagues. But hidden behind her cheerful facade was a woman suffering from extreme depression and anxiety, DePalo’s lawyer told the court — leading to an illicit sexual relationship with a 15-year-old student....
The former West Orange high school teacher, who admitted to the relationship with her student, was sentenced in state Superior Court today to a three-year suspended sentence, which means she will not serve any prison time if she cooperates with the conditions of her parole. DePalo also must register as a sex offender under Megan’s Law and cannot seek public or government office nor have any contact with the victim.
The non-custodial plea was largely influenced by DePalo’s psychiatric condition at the time of the sexual relationship, attorneys said. Months before DePalo began the relationship with the boy, she was diagnosed with bipolar disorder, [defense attorney Anthony] Alfano said. A doctor incorrectly prescribed anti-depressants which affected her sense of entitlement and judgment....
In court, DePalo took responsibility for the affair, apologizing to the victim in a quivering voice, tears running down her cheeks. "I feel nothing but remorse for my actions and deep, deep sadness for all I’ve lost because of them," she said.
Police charged DePalo in August with first-degree aggravated sexual assault, second-degree sexual assault and endangering the welfare of a child. The first two charges were dropped as part of the plea deal. If DePalo had gone to trial and been convicted, she could have faced up to ten years in prison.
The non-custodial sentence was previously criticized by West Orange superintendent James O’Neil as too lenient. Both Alfano and Assistant Prosecutor Tony Gutierrez said the victim’s family consented to the plea. Gutierrez said the 15-year-old boy, who was a student in DePalo’s honor’s English class, was the only victim and that the relationship lasted a few weeks.
Alfano said gender was never brought up in plea negotiations, referencing a Star-Ledger analysis of 97 cases which revealed men serve about 40 percent longer jail terms and go to prison more often than women in these cases.
The referenced analysis on the study of NJ teacher-student sex cases appears in this companion article, which provides this accoutning:
Critics have called the punishment for the former Essex County teacher of the year too lenient and reflective of a double standard that disproportionately penalizes men for similar relationships with students.
A Star-Ledger analysis of 97 cases in New Jersey over the past decade reveals significant disparities: Men are on average sent to jail in more cases and receive longer sentences. The data about 72 men and 25 women also shows:
• Male defendants went to prison in 54 percent of cases compared with 44 percent of cases for female defendants;
• Men averaged 2.4 years in prison compared with 1.6 years in prison for women, or 50 percent more time;
• Ninety-three of the 97 cases ended in plea deals;
• Forty-seven cases ended in noncustodial sentences, which typically involved pre-trial intervention programs or probation.
There are various reasons for the disparities in these cases, experts say, including the perception that girls and women need to be protected and are more vulnerable than their male counterparts, the availability of evidence, and the willingness of the student to participate in the prosecution.
"There’s a general societal disposition that does continue to treat women as the gentler sex, so typically the threshold for sending women to prison is higher," said Martin Horn, director of the New York State Sentencing Commission and a professor at the John Jay College of Criminal Justice.
All cases studied involve teachers, substitute teachers, coaches or school personnel who admitted to, or were convicted of, engaging in sexual relationships with students connected to their school. "Juries and judges sort of make a consideration about how exploitative the crime is and how predatory the perpetrator is," Horn said. "The system is supposed to make discriminations or make distinctions between individuals based on their perceived levels of culpability."
Most of the 97 cases analyzed were described in reports as consensual in nature (though not in the eyes of the law). In New Jersey, the age of consent is 16, but a person in a supervisory role, such as a teacher, can be guilty of sexual offenses even if a student is 16 or 17.
Because New Jersey’s Administrative Office of the Courts does not keep separate records on sex crimes committed by educators, The Star-Ledger used reports filed by the state Board of Examiners detailing teacher license suspensions. The suspension reports that described inappropriate student relationships were cross-checked with court records to obtain necessary information. This is not inclusive of every teacher-student case in the past 10 years.
April 30, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (27) | TrackBack
Saturday, April 27, 2013
"Passive Pedophiles: Are child porn viewers less dangerous than we thought?"The title of this post is the headline of this notable recent commentary by Emily Bazelon at Slate. Here are excerpts:
Making child pornography is abuse. What about possessing it? As a group, these offenders — the ones who look but don’t abuse children to create new images — are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years. Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”
It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young. Their crimes aren’t “victimless,” as defense lawyers sometimes argue. These men create the market for new images. They are the demand behind the supply. I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering — and about the victims’ efforts to win restitution from these men.
But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves. Is that true? I’ve heard it so many times it’s hard to think otherwise. Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law). The commission did its own research. It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”...
This isn’t an easy subject. Punishments for sex offenders move only in one direction in this country — they get harsher. But the Sentencing Commission’s critique should get a serious hearing. Prison comes with a cost for taxpayers as well as the people it incarcerates. And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids....
Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell. Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say. The question is how many more. Do they really pose a different risk in this regard than other criminals do? The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon. In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.
April 27, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack
Thursday, April 25, 2013
Colorado report documents significant costs of poor planning for sex offender sanctionsA helpful reader alerted me to this interesting new Denver Post piece headlined "Audit rips Colorado's lifetime-supervision sentence for sex offenders." Here are excerpts:
A 15-year-old state law that created a lifetime-supervision sentence for Colorado sex offenders provides insufficient treatment for many of the highest-risk inmates and has left thousands of others waiting for therapy in prison, according to a recent audit.
Demand for treatment in the Department of Corrections' Sex Offender Treatment and Monitoring Program greatly exceeds supply, the audit found. Just one-sixth of inmates eligible to begin treatment are able to start the program each year — effectively keeping many sex offenders in prison indefinitely.
More than 1,000 inmates who are ready and waiting for treatment have passed their parole-eligibility dates, the auditors found. Their prolonged incarceration may be costing Colorado taxpayers as much as $30 million a year.
In a scathing audit given to corrections officials in February, Central Coast Clinical and Forensic Psychology Services Inc. also found the sex-offender program suffers from poorly qualified therapists and inappropriate levels of treatment given offenders.
"It's a disaster," said Laurie Kepros, who directs sexual-litigation cases for the Colorado public defender's office. "Thousands of people are being told you have to have treatment to get out of prison" by a system failing to provide that treatment, she said. "We're paying for this every day."
Former Republican state Rep. Norma Anderson, who sponsored the 1998 law, said she recognizes the high cost of keeping many violent sex offenders in prison indefinitely and would like to see funding for treatment increased. Still, "I'd rather have them there than out committing another sex crime," she said. "I'm on the side of the victim and always will be."
Tom Clements, the state corrections chief who was killed March 19, had promised a swift response to the issues raised by the audit and fundamental changes to the sex-offender program in a March 8 letter to the legislative Joint Budget Committee. Clements was shot to death at the door of his Monument home. The suspected killer, Evan Ebel, was an inmate who had been released directly from solitary confinement to "intensive supervision" parole.
Clements' murder brought intense scrutiny to the state parole system because Ebel, paroled on robbery and related charges, had slipped off his ankle bracelet five days earlier. Now, legislators say they also plan to scrutinize the sex-offender treatment program within the prisons — and the law that created potential lifetime sentences for sex offenses.
The law established indeterminate sentences — five years to life, for example — for many sex-offense crimes in Colorado. Sex offenders who successfully complete a prison-treatment program and get paroled then enter a community-based lifetime-supervision program....
The number of Colorado inmates classified as sex offenders has grown from 21 percent to 26 percent of the total prison population in five years. Much of the growth can be traced to the 1998 law. By 2012, more than 1,600 of the nearly 4,000 men classified as sex offenders in Colorado prisons were sentenced under the law.
The audit of the program was undertaken at the behest of state Rep. Claire Levy, a Boulder Democrat who serves on the Joint Budget Committee. She said it confirmed her longstanding concerns about the program's fairness and effectiveness. It affirmed that "low-risk sex offenders can be treated as effectively in the community," Levy said. "The lifetime-supervision law does not allow that."
The report described the state's sex-offender treatment program as "largely a one-size-fits-all program in which all treatment participants are generally expected to complete the same treatment exercises." This treatment occurs in groups that "are very large, often with 14 per group," the experts wrote.
The auditors reported that low-risk sex offenders in Colorado remain imprisoned at great cost, that the most dangerous offenders get too little attention and that nearly half the therapists they observed were "poor" — conducting group therapy sessions with behaviors "outside the range of what is acceptable for a therapist." In some cases, those therapists appeared bored and "sometimes expressed hostility," the authors reported. "Therapists sometimes appeared demeaning and condescending, mocking their patients."
The state spends about $31,000 a year to keep a single person in prison. That's $30 million a year the state is spending unnecessarily if the prison system holds a thousand sex offenders who could be treated safely outside, said Kepros of the public defender's office....
The audit found Colorado prisons can yearly accept just 675 of 3,959 sex offenders who are within four years of parole eligibility, leaving 3,284 unable to participate in treatment. As a result, other sex offenders may be unable to get any treatment before their release "even if they present an exceptionally high risk" to the community, the audit said. It noted that therapists and inmates alike described the treatment programs as "under-resourced," with little attention to individual needs and scant opportunity for private, individual therapy.
Monday, April 22, 2013
Notable civil rights action victory for Iowa sex offenders subject to civil confinement
Because sex offenders rarely get court victories concerning impositions on their civil rights, I found noteworthy today's panel ruling in the Eighth Circuit in Arnzen v. Palmer, No. 12-3634 (8th Cir. April 2013) (available here). Here is how the opinion starts:
Patients at the Iowa Civil Commitment Unit for Sex Offenders (CCUSO) filed a complaint under 42 U.S.C. § 1983 challenging the placement of video cameras in CCUSO restrooms, and moved for a preliminary injunction to stop their use. The district court denied the motion as to cameras in the "dormitory style restrooms" (restrooms with multiple toilets, showers and sinks) but granted a preliminary injunction ordering that cameras in the "traditional style bathrooms" (bathrooms with a single toilet, sink, and shower) be pointed at the ceiling or covered with a lens cap. The administrators of CCUSO appeal and we affirm.
Friday, April 12, 2013
Terrific SCOTUSblog preview of Kebodeaux and SORNAA helpful reader reminded me not only that the Supreme Court has a last few criminal justice cases slated for oral argument the next few weeks as its term winds down, but also that one sex offender case, US v. Kebodeaux, due to be argued next week raises a host of intricate legal issue. Helpfully, Steven Schwinn sorts through Kebodeaux via this terrific (and very lengthy) post at SCOTUSblog titled "Argument preview: Can Congress punish a former sex offender for failure to register?". Here are highlights from the analysis section of the preview:
This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here)....
In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.
Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.
On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.
Monday, April 01, 2013
California figures out GPS tracking won't work if GPS trackers don't workThe silly tilte to this post is prompted by this notable lengthy story from the Los Angeles Times, which carries the following headline and sub-heading: "Tests found major flaws in parolee GPS monitoring devices: One company's devices were deemed so unreliable that California ordered a complete switch to another firm's, citing 'imminent danger' to the public. A lawsuit ensued." Here is how the piece starts:
A little more than a year ago, California quietly began conducting tests on the GPS monitoring devices that track the movements of thousands of sex offenders. The results were alarming.
Corrections officials found the devices used in half the state were so inaccurate and unreliable that the public was "in imminent danger." Batteries died early, cases cracked, reported locations were off by as much as three miles. Officials also found that tampering alerts failed and offenders were able to disappear by covering the devices with foil, deploying illegal GPS jammers or ducking into cars or buildings.
The state abruptly ordered parole agents to remove every ankle monitor in use from north of Los Angeles to the Oregon border. In their place, they strapped on devices made by a different manufacturer — a mass migration that left California's criminal tracking system not operational for several hours.
The test results provide a glimpse of the blind spots in electronic monitoring, even as those systems are promoted to law enforcement agencies as a safe alternative to incarceration. The flaws in the equipment raise the question of whether the state can deliver what Jessica's Law promised when voters approved it in 2006: round-the-clock tracking of serious sex offenders.
In a lawsuit over the state's GPS contracting, corrections attorneys persuaded a judge to seal information about the failures, arguing that test results could show criminals how to avoid being tracked and give parole violators grounds to appeal convictions.
The information, they warned, would "erode public trust" in electronic monitoring programs. The devices, they said, deter crime only if offenders believe their locations are being tracked every minute. "The more reliable the devices are believed to be, the less likely a parolee may be to attempt to defeat the system," GPS program director Denise Milano wrote in a court statement.
State officials say the replacement devices have largely resolved the problems, but officials so far have refused to release test data showing what, if any, improvements were gained.
Some older related posts on tracking technologies:
- Are microchip implants for offenders inevitable?
- A sober (and caffeinated) look at GPS tracking realities
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
Wednesday, March 27, 2013
"On Emotion, Juvenile Sex Offenders, and Mandatory Registration"The title of this post is the title of this paper authored by Catherine Carpenter recently made available via SSRN. Here is the abstract:
It is both unremarkable and true that juveniles are different from adults. United States Supreme Court decisions over the past decade have highlighted the extent of the differences. Yet, played out against the backdrop of sex offender registration laws, the conversation takes an abrupt turn. Rather than differentiating between adult and juvenile offenders, federal sex offender registration laws require juveniles convicted of certain sex offenses to face the same onerous registration and notification burdens as their adult counterparts.
Tracking the shift in sex offender registration models from “likely to reoffend” to “conviction-based" assessment, this article argues that “conviction-based” assessment is an unstable proposition when applied to child offenders for two fundamental reasons. First, juvenile offenders lack intentionality and purpose that adult offenders possess, thereby diminishing the value that a conviction carries. Further, and more importantly, studies reveal that the commission of juvenile sex crimes does not portend future predatory behavior, raising the question of the purpose of registration for this class of offenders.
Ultimately, the legislative push to require juvenile sex offenders to suffer serious register and notification burdens demonstrates convincingly the pitfall that impacts the entire debate over sex offender registration. Emotional rhetoric controls the legislative agenda, even in the face of compelling arguments to the contrary.
Sunday, March 24, 2013
Should sex offender have to pay an annual fee for their monitoring?The question in the title of this post is prompted by this new article from Michigan, headlined "ACLU, other groups object to Michigan bill pushing annual sex offender fee." Here is how it starts:
A bill to require the more than 40,000 people on Michigan's sex offender registry to pay an annual fee is igniting a debate over who should bear the costs for operating and maintaining the state's system used to track offenders.
Registered sex offenders already are required to pay a one-time $50 fee, but some lawmakers want to charge them $50 every year to cover the $600,000 a year cost to operate the database. The state says the move could bring in about $540,000 more in revenue each year.
Sex offenders "put themselves onto this registry by their actions," said Republican Sen. Rick Jones of Grand Ledge, who is sponsoring the legislation that is headed to the Senate floor, but not yet scheduled for a vote. "Therefore, they need to pay a fee to maintain it."
But opponents, which include the American Civil Liberties Union, say it's merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.
Wednesday, March 20, 2013
Talk of reforming prison realignment in CaliforniaAs reported in this new AP piece, "Republican lawmakers proposed a package of bills on Tuesday intended to counter what they see as a growing threat to public safety from sending some inmates to county jails instead of state prisons." Here is more:
The 13 bills seek to counter the effects of prison realignment in 2011 by improving supervision of parolees and increase penalties for sex offenders and those who illegally possess or sell firearms. The measures also would send more convicts back to prison to ease the burden on local jails while protecting counties from lawsuits.
"Republicans recognize that we must close the worst realignment loopholes," said Assembly Minority Leader Connie Conway, R-Tulare.
The bills' chances are uncertain in a Legislature controlled by Democrats. The measures were proposed nearly 18 months after Gov. Jerry Brown's prison realignment took effect, sending inmates convicted of lower-level crimes to county jails instead of state prisons....
A related bill was rejected last week on a party-line vote in the Assembly Public Safety Committee. The bill, AB2 by Assemblyman Mike Morrell, R-Rancho Cucamonga, would have sent paroled sex offenders back to state prisons, instead of county jails, if they fail to register as sex offenders.
The proposals have the backing of Diana Munoz, mother of Brandy Arreola, 21, of Stockton, who was permanently injured last year by her boyfriend, Raoul Leyva, a parole violator who had been released early from jail because of overcrowding. Leyva, 34, was convicted last month of attempted voluntary manslaughter and injuring a spouse, with enhancements for causing brain injury and paralysis.
"If realignment didn't exist ... my daughter would be living her life normally," Munoz said as her daughter sat in a wheelchair by her side. "The state is responsible for what's happened to her. They should never have let him out."
Other bills in the Republican package would impose prison instead of jail time for criminals who remove their GPS-linked tracking devices; send all sex offenders who violate their parole back to prison' and have state parole agents, rather than county probation agencies, supervise all released sex offenders. The proposals come amid rising concerns over the consequences of Brown's realignment law that took effect in October 2011.
The number of paroled sex offenders who are fugitives in California is 15 percent higher today than before realignment; counties are housing more than 1,100 inmates serving sentences of five years or more in jails designed for stays of a year or less; and inmate advocacy groups are beginning to sue counties over the same type of poor housing and treatment conditions that led to years of litigation and billions in additional costs for the state.
Sunday, March 17, 2013
Comments on Steubenville outcomes: "Juvenile Court is supposed to be better than this"My Ohio State College of Law colleague Kimberly Jordan, who helps runs OSU's Justice for Children Project, sent me the following interesting (sentencing-related) comments following today's verdicts and sentences in the (surprisingly?) high-profile juvenile sex offense case in Steubenville, Ohio:
The intersection of social media, teen drinking, small town football, and sex led to two young men, Trent Mays and Ma’lik Richmond, being adjudicated delinquent in juvenile court this weekend -- the equivalent of a guilty finding if the boys had been adults at the time of the incident. Their being found guilty is not a huge surprise; the prosecution did a tremendous job pulling thousands of text messages and social media posts to make their case. The surprise is that the court failed to adequately address their disposition, or imposition of the sentence. From all appearances, no investigative work was done by the court post-adjudication. That means no pre-sentence investigation, social history, or risk assessment tool was utilized to determine what punishment was appropriate for these boys. Their attorneys, in prior hearings, had presented letters and documents to the court to argue for their pre-trial release, but did not have the opportunity today to present any witness testimony or other information before Judge Lipps ordered them remanded to juvenile prison.
This is one unique function of juvenile court; judges are given wide latitude in fashioning a disposition that serves to meet the needs of the child and hold him accountable for his offense. As an attorney, though, I am shocked at the serious deprivation Trent and Ma’lik are now facing, without any attention paid to their mental health, possible intervening life circumstances, prior participation (or not) in rehabilitative services, and individual strengths and weaknesses. Yes, they did the crime, but juveniles are not subject to mandatory sentences. Trent and Ma’Lik were not tried as adults. They could have been, having been charged with the serious crime of rape. The prosecutor handling the case for the State of Ohio has the discretion whether to ask the juvenile court to bind over, or transfer the juvenile’s case to adult court. Certain categories of offense are automatically transferred, but rape is not one of them (the legislature could certainly include it, but has wisely left transfer for the murder categories of crime). In order for the juvenile court to exercise discretion to transfer a case to the adult criminal court, it must make a finding that the particular juvenile is not amenable to juvenile court treatment. Given that Trent and Ma’lik had never been in trouble with the juvenile court before, this likely would have been an uphill battle for the prosecution.
Since the case stayed in juvenile court, only juvenile court sentences -- called dispositions -- were available if the boys were found guilty. Here, Judge Lipps utilized the most severe punishment possible for Trent and Malik -- commitment to The Department of Youth Services (DYS), or juvenile prison. Both boys will be assessed for their treatment needs once at the facility, including undergoing assessments to determine their level of risk for re-offending in a sexual manner. They will be treated like inmates, but they will also go to school and receive counseling, likely both in groups and as individuals. Their stay at DYS will be determined by the amount of progress they make in meeting their treatment goals. Trent, however, will serve a minimum of two years in DYS, while Ma’lik will serve a minimum of one year. They can both be held until they are 21 years old.
Some might wonder whether a 4-5 year juvenile sentence is enough punishment for these boys’ actions. In Ohio, juveniles can be sentenced to both juvenile and adult time if they are deemed “Serious Youthful Offenders.” Again, the individual prosecutor handling the case has the decision making power; the ultimate determination is made by the juvenile court. The court has to decide that, “given the nature and circumstances of the violation and the history of the child, the length of time, level of security, and types of programming and resources available in the juvenile system alone are not adequate to provide the juvenile court with a reasonable expectation” that the purposes of the juvenile court will not be met. O.R.C. 2152.13(D)(2)(a)(i). This boils down to a judge believing that the juvenile court’s punishment will not be enough to either rehabilitate the child, or is not adequate to hold the child accountable for his actions, or both.
Regardless of whether the boys serve anywhere close to the maximum sentence, there will be a determination, at the end of their prison stay, about whether they will have to register as sex offenders. That determination is rightly made after the provision of rehabilitative services at DYS. At the time of their release, the court will hold a hearing to determine the effectiveness of their treatment, and determine whether registration is necessary to protect the public.
Juvenile court was the right place for Trent and Ma’lik. Regardless of the circumstances surrounding them in Steubenville football and politics, their actions were ones of teenagers. Criminal, hurtful, and horrid acts, but ones that they can learn from. They are not hardened criminals and their lives are not over. Hopefully, their future interactions with the court, in addressing their treatment and possible registration issues, will be more focused on their individual rehabilitative efforts, so that all is not lost for these young men.
March 17, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack
Saturday, March 16, 2013
"Sentencing Policy Adjudication and Empiricism" with a focus on federal child porn sentencingThe title of this post is drawn from the basic title of this notable new and timely article by Melissa Hamilton now on SSRN and just titled "Sentencing Policy Adjudication and Empiricism." Here is the abstract, which highlights why this piece is especially a must-read for anyone working on federal child porn cases:
Federal sentencing is in disarray with a raging debate pitting Congress, the United States Sentencing Commission, and the federal judiciary against each other. Ever since the Supreme Court rendered the federal guidelines as merely advisory in United States v. Booker, the rate of variances from guidelines’ recommendations has increased. After the Supreme Court in Kimbrough v. United States ruled that a sentencing judge could reject the crack cocaine guideline for a policy dispute with a Commission guideline, the variance rate has risen further still. While Booker/Kimbrough permits the judiciary some discretionary authority, it is threatening to the Commission and the legitimacy of its guidelines.
The downward variance rate is at its most extreme with a very controversial crime: child pornography offending. The courts are in disagreement as to whether, as a matter of law, a sentencing judge has the authority to use a Kimbrough-type categorical rejection of the child pornography guideline. Through a comprehensive review of federal sentencing opinions, common policy objections to the child pornography guideline are identified. The guideline is viewed as not representing empirical study, being influenced by Congressional directives, recommending overly severe sentences, and resulting in both unwarranted similarities and unwarranted disparities. The issue has resulted in a circuit split. This article posits a three-way split with four circuit courts of appeal expressly approving a policy rejection to the child pornography guideline, four circuits explicitly repudiating a policy rejection, and three circuits opting for a more neutral position. A comprehensive review of case law indicates that the circuit split is related to unwarranted disparities in sentencing child pornography offenders nationwide. This assessment was then corroborated by empirical study.
The Sentencing Commission’s dataset of fiscal year 2011 child pornography sentences were analyzed to explore what impacts policy rejections and the circuit split may have on actual sentences issued. Bivariate measures showed statistically significant correlations among relevant measures. The average mean sentence in pro-policy rejection circuits, for example, was significantly lower than in anti-policy rejection circuits. A multivariate logistic regression analysis was employed using downward variances as the dependent variable. Results showed that that several circuit differences existed after controlling for other relevant factors, and they were relatively consistent with the direction the circuit split might suggest.
The article concludes that the child pornography guideline suffers from a multitude of substantial flaws and deserves no deference. It also concludes that there are no constitutional impediments to preventing a district judge from categorically rejecting the child pornography guideline. Booker and its progeny stand for the proposition that there are no mandatory guidelines, even if a guideline is the result of Congressional directive.
Some recent related posts:
- US Sentencing Commission releases big new report on federal child porn sentencing
- Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?
- The many (impossible?) challenges of federal child pornography sentencing
- DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken
- Notable debate in Wisconsin over new state child porn sentencing law
March 16, 2013 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack
Thursday, March 14, 2013
Third Circuit panel discusses at length all the problems with SORNAThe start of the Third Circuit panel's lengthy opinion today in US v. Reynolds, No. 08-4747 (3d Cir. Mar. 14, 2013) (available here), explains the current mess that is certain federal sex offender registration laws better than I could. Here goes (with footnotes removed):
This case returns to us after the Supreme Court’s review in Reynolds v. United States, 132 S. Ct. 975 (2012). Remand requires that we reach the merits of Reynolds’s claim that the regulatory rule upon which his indictment was based was promulgated in violation of the Administrative Procedure Act (“APA”). This claim gives rise to three questions: (1) What is the appropriate standard of review of an agency’s assertion of good cause in waiving the APA’s notice and comment requirements? (2) Did the Attorney General have good cause to waive these requirements in promulgating a rule governing the retroactivity of the Sex Offender and Registration Notification Act’s (“SORNA”) registration requirements? (3) If the Attorney General lacked good cause to waive the requirements, was Reynolds prejudiced by the failure to comply with the APA’s notice and comment requirements?
The courts of appeals are divided on each of these questions. On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General’s actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question. On the second question, the Fourth and Eleventh Circuits have held that the Attorney General had good cause to waive notice and comment, while the Fifth, Sixth, and Ninth Circuits have held that he did not. On the final question, the Fifth Circuit has held that the Attorney General’s lack of good cause does not prejudice defendants, while the Sixth Circuit has held that it is prejudicial.
We conclude that we need not decide the appropriate standard of review today because the Attorney General’s assertion of good cause cannot withstand review even under the most deferential standard available. We also conclude that the Attorney General’s lack of good cause is prejudicial to Reynolds. Accordingly, we will vacate Reynolds’ conviction.
Tuesday, March 12, 2013
Notable debate in Wisconsin over new state child porn sentencing lawRegular readers are quite familiar with (and perhaps even tired of) the long-running debates over federal child pornography sentencing laws. But, as detailed in this local article from Wisconsin, headlined "New law limits judges' power in child pornography cases," similar issues and debates arise in states sentencing systems, too. Here are excerpts from the article, which strikes all the usual themes concerning the impact of mandatory minimum sentencing provisions:
A new law intended to toughen punishment for those convicted of viewing child pornography is drawing criticism from court officials.
In April 2012, state lawmakers passed into law a mandatory, minimum three-year prison sentence for the felony offense. Under a clause in the old law, judges had the discretion to order lesser penalties depending on the circumstances of the case.
Rep. Mark Honadel, R-South Milwaukee, who sponsored the mandatory penalty, testified that judges were letting too many offenders stay out of prison. “Sentences of less than 3 years were meant to be issued sparingly but became the standard,” Honadel said.
State Rep. Jeremy Thiesfeldt, R-Fond du Lac, said the law was conceived as a way to provide consistent sentences for all offenders who commit the same crime. “Prior to this, sentences were all over the map. In a judicial sense, this probably wasn’t the best way to operate,” Thiesfeldt said. “Anytime you can establish standards of fairness, that’s a good thing.”...
Fond du Lac County Circuit Court Judge Peter Grimm, who has worn the hat of a public defender and district attorney before his election to the bench 22 years ago, says judges need discretion in sentencing to ensure the punishment fits the circumstances of the crime and the criminal. “These mandatory minimum sentences fly in the face of current judicial training in which judges are trained to use evidence-based sentences designed to let judges make the best decision based on the facts of the case,” said Grimm. “Judges should not be locked into a minimum sentence because the legislature wants to be tough on crime.”
Dodge County District Attorney Kurt Klomberg has mixed feelings concerning the new law. “The law does take discretion away from the judges. The judge is no longer able to go below the minimum (sentence) even in the face of strong mitigating evidence,” Klomberg said. “The prosecutor now has greater power in the sentencing process as the decision on the charge will be a decision on the minimum allowable sentence after conviction.”
Klomberg also recognizes that the new law could impact settlement in cases involving child pornography. “The defendants in these cases are often willing to plead to the charges in hopes of convincing the judge to go below the minimum,” Klomberg said. “Under the new law, there is no possibility, and it may result in more trials.”
Defense attorney and former Fond du Lac County District Attorney Michael O’Rourke disagrees with a one-size-fits-all approach. “Each case and each defendant are different and judges should have the ability to fashion a sentence that is good for both the community and aids defendants in rehabilitation,” O’Rourke said
The former prosecutor says judges need discretion in sentencing to ensure the penalty doesn’t outweigh the crime. “The retired 63-year-old with no previous record who went to an adult porn site and was browsing and clicked onto a site that includes child pornography and then looks at a couple of pictures is different than the person who may already have a record, or who is actively seeking child porn,” O’Rourke said. “Some peer-to-peer sites will download thousands of images in seconds onto a computer and the individual has seen none of them. A judge should have the discretion to consider that.”
Wisconsin’s new child pornography law offers one exception to the minimum sentence, Thiesfeldt said. Several cases involving teens trading inappropriate pictures by cell phone prompted lawmakers to include a clause in which a judge can issue lesser penalties if the offender is no more than four years older than the child depicted.
Monday, March 11, 2013
Split Eighth Circuit panel weighs in on child porn restitutution issuesA few weeks ago, as reported in this post, the Sixth Circuit in US v. Gamble ended any betting on how that court was going to sort through the circuit-splitting issues concerning awards of restitution in child porn downloading cases. Today, the majority of an Eighth Circuit panel in US v. Fast, No. 12-2752 (8th Cir. Mar. 11, 2103) (available here), was quick to adopt the majority approach to these issues (hat tip to How Appealing), via an opinion that gets started this way:
Judge Shepherd authors an extended dissent, which gets started this way:
Robert M. Fast pled guilty to one count of receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court ordered him to pay $3,333 restitution to Vicky — the pseudonym for the child-pornography victim whose images were on Fast’s computer — under 18 U.S.C. § 2259. Vicky challenges the restitution award by direct appeal and in a petition for mandamus. She argues that Fast need not proximately cause the losses defined in subsections 2259(b)(3)(A) through (E) to be liable for them, and that the district court misinterpreted the “full amount of [her] losses” under section 2259(b)(1). Because she lacks standing as a nonparty to bring a direct appeal, this court grants the motions to dismiss by Fast and the government. Having jurisdiction over her mandamus petition under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), this court denies her petition.
I concur with respect to sections I, II, and III of the majority’s opinion. I dissent with respect to sections IV and V, and with respect to the judgment, because I would follow the Fifth Circuit’s approach and hold that only damages awarded under 18 U.S.C. § 2259(b)(3)(F) are subject to a proximate cause requirement. See In re Amy Unknown, 701 F.3d 749, 752 (5th Cir. 2012) (en banc). Consequently, I would grant Vicky’s petition for mandamus relief and remand for the district court to recalculate her losses.
As I have noted before (and likely will have an opportunity to mention again in the future), it seems only a matter of time before the Supreme Court will feel it has to take up these issues in some manner.
A few more recent and some older related federal child porn restitution posts:
- DC Circuit weighs in on host of challenging child porn restitution issues
- New student note on restitution sentences for child porn downloaders