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
Sunday, March 10, 2013
"Neighborhoods Seek to Banish Sex Offenders by Building Parks"The title of this post is the headline of this notable new article in today's New York Times. Here are snippets:
Parents who pick up their children at the bus stop in this city’s Harbor Gateway neighborhood say they often see men wearing GPS ankle bracelets and tell their children to stay away. Just up the street, 30 paroled sex offenders live in a single apartment building, including rapists and child molesters. More than 100 registered sex offenders live within a few miles.
So local residents and city officials developed a plan to force convicted sex offenders to leave their neighborhood: open a tiny park.
Parents here, where state law prohibits registered sex offenders from living within 2,000 feet of a school or a public park, are not the only ones seizing on this approach. From the metropolis of Miami to the small town of Sapulpa, Okla., communities are building pocket parks, sometimes so small that they have barely enough room for a swing set, to drive out sex offenders. One playground installation company in Houston has even advertised its services to homeowners associations as an option for keeping sex offenders away.
Within the next several months, one of Los Angeles’s smallest parks will open here in Harbor Gateway, on a patch of grass less than 1,000 square feet at the corner of a busy intersection. But even if no child ever uses its jungle gym, the park will serve its intended purpose. “Regardless of whether it’s the largest park or the smallest, we’re putting in a park to send a message that we don’t want a high concentration of sex offenders in this community,” said Joe Buscaino, a former Los Angeles police officer who now represents the area on the City Council.
While the pocket parks springing up around the country offer a sense of security to residents, they will probably leave more convicted sex offenders homeless. And research shows that once sex offenders lose stable housing, they become not only harder to track but also more likely to commit another crime, according to state officials involved with managing such offenders.
“Putting in parks doesn’t just break up clusters — it makes it impossible for sex offenders to find housing in the whole city,” said Janet Neeley, a member of the California Sex Offender Management Board. “It’s counterproductive to public safety, because when you have nothing to lose, you are much more likely to commit a crime than when you are rebuilding your life.”
Restrictions on where sex offenders can live, which have been passed in most states, have already rendered most residential areas in many cities off limits. The number of homeless sex offenders in California has increased threefold since 2006, when the latest residency restrictions were passed, and a third of sex offenders on parole are now homeless, according to reports from the Sex Offender Management Board....
Mr. Buscaino said he supported housing for sex offenders, but said the pocket park would improve the quality of life in Harbor Gateway. “Let’s house them, absolutely, but not in a high-population area like this one,” he said.
Many of the sex offenders who live near Harbor Gateway have been placed there with the help of parole officers, precisely so they would not end up on the street. The landlord of some nearby apartments where dozens of sex offenders on parole live, who spoke on the condition of anonymity for fear of retaliation, said that keeping paroled sex offenders together in transitional housing actually kept the community safer because it places controls on them even after they leave prison....
In some urban areas, however, there is already nowhere left for sex offenders to legally live. In Miami, dozens of convicted sex offenders camped under a bridge, unable to find any other shelter, until the encampment was broken up several years ago. Another camp in Miami, where a dozen offenders slept on the sidewalk, was dispersed last year when Marc Sarnoff, a city commissioner, had three pocket parks built in the neighborhood.
Mr. Sarnoff said he did not know where the offenders ended up. “There has to be a strategy in place so they don’t just live on the sidewalk,” Mr. Sarnoff said. “We need more resources in place so these guys don’t reoffend. But that’s beyond the city’s resources. It has to be at the state level.”
Thursday, March 07, 2013
DOJ agrees with US Sentencing Commission that child porn guidelines are badly brokenThanks to a helpful reader, I have learned that earlier this week a representative of the US Department of Justice sent a lengthy and detailed letter to the US Sentencing Commission concerning its recent huge child pornography federal sentencing report (basics here and here). Disappointingly, as of this writing, I cannot seem to find a copy of this important and interesting letter on the website of either the DOJ or the USSC. ButI have a pdf copy of the letter, which is dated March 5, 2013, and I have posted the full 7-page letter below.
The lengthy letter needs to be read in full by any and everyone concerning with federal child porn sentencing dynamics. And these sentences from the first page highlights that DOJ agrees with the USSC's basic conclusion that the current child porn federal sentencing guidelines are badly broken:
[T]he Department agrees with the Commission's conclusion that advancements in technologies and the evolution of the child pornography "market" have led to a significantly changed landscape -- one that is no longer adequately represented by the existing sentencing guidelines. Specifically, we agree with the Report's conclusion that the existing Specific Offense Characteristics ("SOCs") in USSG § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness. The current guidelines can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses.
As I suggested in this recent post, now that the US Sentencing Commission has said that the current federal guidelines for child pornography are broken, it not longer seems proper for these guidelines to be given much weight and it seems plainly improper for within-guideline CP sentences to still carry a presumption of reasonableness on appeal. Now that the Justice Department has officially stated that it agrees with the USSC's position on these guidelines, I wonder if federal prosecutors will not be not merely authorized, but actually required, to agree with the common defense arguments in CP cases that the current guidelines should be afforded little or no weight in the broader 3553(a) analysis.
Indeed, in light of this DOJ letter, which details the many ways ways in which the current CP guidelines are broken, perhaps circuit courts should begin to adopt a blanket presumption of unreasonableness for any and every within-guideline child porn sentence. (Of course, that presumption could be rebutted if and when a district judge were to explain how other 3553(a) factors justified a within-guideline sentence in a child porn case. But, in light of what the USSC and DOJ are saying about the flaws of the current CP guideline, it would seem only logical now to view any within-guideline child porn sentence as presumptively flawed rather than presumptively sound.)
Recent related posts:
- 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
March 7, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, March 05, 2013
The many (impossible?) challenges of federal child pornography sentencingThe title of this post is inspired in part by the US Sentencing Commission's recent report, which highlights many of the flaws with the current child porn sentencing guidelines and set forth a number of ideas and needs for effective reform (basics here and here). But what is really driving it is this new local article reporting on a federal sentencing in Maine, headlined "‘There will be no more victims,’ judge tells man at child pornography sentencing." First, here are the basics of the sentencing story:
“There will be no more victims of Walter Mosher,” a federal judge told the 65-year-old convicted sex offender Monday in sentencing him to more than a dozen years in prison for possessing child pornography.
U.S. District Judge John Woodcock sentenced Walter A. Mosher Jr. of Hampden to 12 years and seven months behind bars. The judge also ordered him to remain on supervised release for life when he is released.
Mosher is scheduled to be sentenced Wednesday at the Penobscot Judicial Center on one count of gross sexual assault. Mosher reported to police through his attorney that he molested a boy under the age of 14 between Feb. 1, 2011 and March 1, 2012, according to the sentencing memorandum filed in federal court by his attorney, Jeffrey Silverstein of Bangor. Mosher pleaded guilty to the Class A crime Nov. 21 at the Penobscot Judicial Center.
Under the federal sentencing guidelines, Woodcock was allowed to consider Mosher’s recent guilty plea as “relevant conduct” in connection with the possession of child pornography charge, even though the victim was not depicted in the images found on Mosher’s computer. The federal judge focused on the sexual abuse of the child as he directed his comments at Mosher.
“There are some cases in this court that cry out for justice and yours is one of them,” Woodcock told Mosher shortly before sentencing him. “This was an inexplicable and hideous violation of trust. What we’ve seen today is just the tip of the iceberg of pain you have caused.” A parent of the victim told the judge that Mosher needed “to go away, and go away for a very long time.”
Mosher was required to register as a sex offender because he was convicted in 1986 in Aroostook County Superior Court in Houlton in connection with the molestation or abuse of 15 minors, according to the sentencing memorandum. Since serving 11 years on the 1986 charges, Mosher was not charged with another crime until he was indicted by a federal grand jury on March 15, 2012, according to court documents.
In an emotional statement, Mosher described in graphic detail how he was sexually abused as a child by a female relative. He said that when he committed his earlier crimes, he was going through a divorce and drinking heavily. “I am deeply ashamed and sorry for what I have done,” he told Woodcock. “I don’t know why I have done these things. I have no idea how I got to a place to do these horrible things.”
Mosher has been held without bail since his arrest the day after he was indicted. Mosher pleaded guilty to possession of child pornography in June in federal court. According to court documents, Mosher’s computer contained images of child pornography, specifically digital images and videos that were produced using minors engaged in sexually explicit conduct....
Because of his 1986 convictions, Mosher faced a minimum of 10 years in federal prison and a maximum of 20 years and a fine of up to $250,000. On the gross sexual assault charge, Mosher faces up to 30 years in state prison and a fine of up to $50,000.
Even without knowing any more that these most basic details about the defendant in this case or the particulars of his crime, it is easy to see all the tough questions facing Chief Judge Woodcock: e.g., should the defendant's federal child porn sentence here be longer (or shorter) given that he is surely soon to get a lengthy state sentence for gross sexual assault? should the defendant's recidivism at such an advanced age mean that a federal sentence now should try to ensure Mosher dies in prison, or should the sentence at least offer the defendant a glimmer of hope that he might be able to be free again in his 80s? With the facts of the criminal and the defendants criminal history so troublesome, should the defendant get much (if any) credit for pleading guilty and accepting responsibility?
I could go on and on highlighting all these challenges in this one case, but what really caught my attention when reviewing this article was these notably disparate headlines below the piece noting "similar articles":
- "New Gloucester man sentenced to 25 years on child porn charges"
- "Old Orchard Beach man gets 1 year and 1 day for possessing child porn"
In turn, a quick search for headlines from the same local Maine paper (the Bangor Daily News) revealed these additional sentencing headlines concerning the disposition of child porn charges over just the last 24 months:
- "Berwick man gets 7 years for possessing child pornography"
- "Bangor lawyer suspended from practicing gets six months for child pornography"
- "Former Newport man sentenced to 20 years in federal prison for having child pornography"
- "Fort Fairfield man sentenced to five years in federal prison for possessing child porn"
- "Sanford man gets nearly 30-year sentence on child porn charges"
- "Ex-kindergarten teacher gets 16 years on child porn charge"
- "Ex-state prosecutor sentenced to 16 years for child porn offenses"
A quick click through to a number of these article reveals that there are a number of striking parallels as well as a number of striking differences in the offenses and offenders in these cases. Nevertheless, I still find notable and telling that even in a small and seemingly homogeous federal district like Maine, here is an accounting of the number of months in prison given to 10 child pornography offenders (going from lowest to highest sentence):
6 months; 12 months; 60 months; 84 months; 151 months; 192 months; 192 months; 240 months; 300 months; 340 months
The point of my post here is not to assert or even suggest that any of these referenced sentences is right or wrong or should be higher or lower. Without spending a lot more time looking through the facts of all these cases, I think it is extremely hard to reach even a tentative conclusion about this pattern of sentencing result. But that is my main broader point: there is, of course, a pressing interest and enduring goal for everyone involved to try to determine the "right" sentence in federal child pornography cases not only in each individual case, but also across a range of cases. But, these cases all necessarily raise so many important and challenging issues, I wonder and worry if the goal to get federal child pornography sentencing "just right" is a kind of "fool's gold" that many will pursue at a great cost but ultimately with little of value to show from the pusuit.
Recent related posts:
- 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?
March 5, 2013 in Booker in district courts, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack
Sunday, March 03, 2013
"Should defendants’ age, health issues be sentencing factors?"The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:
Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.
“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.
Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010. The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient. The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”
In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago. He questioned whether Bistline would get adequate medical care in prison.
Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.
Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not. Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”
In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems. Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.
Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease. Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.
Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”
According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010. That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.
Prior related posts:
- Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
- District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal
Wednesday, February 27, 2013
That I said, I remain ever hopeful that those circuits which embrace the so-called "presumption of reasonableness" for within-guideline sentences will try to give some sensible and functional meaning to this appellate review standard. And, as the question in the title of this post suggest, I think the US Sentencing Commission's new report on federal child pornography sentencing (basics here), provides a unique opportunity to give the review standard some real meaning. I come to this conclusion after seeing this key passage (from p. xviii) in the executive summary of the new report:
The current sentencing scheme in §2G2.2 places a disproportionate emphasis on outdated measures of culpability regarding offenders’ collecting behavior and insufficient emphases on offenders’ community involvement and sexual dangerousness. As a result, penalty ranges are too severe for some offenders and too lenient for other offenders. The guideline thus should be revised to more fully account for these three factors and thereby provide for more proportionate punishments.
In short, the US Sentencing Commission is saying that the current federal guidelines for child pornography are broken because they give too much significance to some offense factors and too little to others, and thus guideline-calculated ranges for child porn offenses are "too severe for some offenders and too lenient for other offenders." Put even more directly, the USSC is here declaring that the existing child porn guidelines are not a reasonable means to ensure just, effective and proportionate punishment.
This basic reality in turn prompts my query, which is designed to promote circuits which generally apply the "presumption of reasonableness" for within-guideline sentences to now recognize (and expressly hold) that this appellate presumption does not apply in any case involving the child porn guidelines. In saying this, I am not asserting that this new USSC report necessarily connoted that any and all within-guideline child porn sentence must be declared (or even presumed) substantively reasonable. But I am asserting that, because the USSC has now clearly declared that the existing guidelines now set forth "penalty ranges [that] are too severe for some offenders and too lenient for other offenders," it would be both unjust and obtuse for a circuit court to now presume any within-guideline child porn sentence is substantively reasonable.
Recent related post:
February 27, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack
Sixth Circuit weighs in with instructions on restitution sentencing in child porn casesA helpful reader alerted me to a notable ruling by a Sixth Circuit panel today in US v. Gamble, No. 11-5394 (6th Cir. Feb 27, 2013) (available here). Here is how the majority opinion gets started:
Judge Kethledge adds a brief and very interesting sepearate opinion which starts and ends this way:
In unrelated child pornography convictions, both James Gamble and Shawn Crawford were ordered by their respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received. Restitution was ordered jointly and severally under 18 U.S.C. § 2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases. Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers. Finally, while Gamble additionally appeals his within-Guidelines prison sentence, it is substantively reasonable.
I join all but part II.B of the Court’s thought ful opinion. I do not join that part because I would direct the district court to make a more flexible and open-ended determination of each defendant’s share of responsibility for Vicky’s losses....
In determining the amount of a restitution award under § 2259, the courts can only do their best. It seems to me that a more flexible inquiry, focused on moral fault, and using all the evidentiary tools at the c ourt’s disposal, is the way to accomplish that end.
As I have stressed before, it is only a matter of time before the Supreme Court has to take up these issues, and this Sixth Circuit opinion provides the Justices with additional thoughtful reading for when they do.
February 27, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack