Sunday, March 25, 2012

Another effective review of federal sentencing severity for child porn downloaders

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, March 18, 2012

Extraordinary review of federal sex offender civil commitment program

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 13, 2012

Wisconsin Supreme Court addresses registration requirements for homeless sex offenders

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

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

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

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

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

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

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

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

Thursday, March 08, 2012

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

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

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

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

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

Monday, March 05, 2012

Super Tuesday meets sex offender panic in Virginia

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

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

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

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

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

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

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

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

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

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

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

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

Friday, March 02, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, March 01, 2012

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

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

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

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

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

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

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

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

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

Monday, February 27, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 21, 2012

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

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

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

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

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

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

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

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

Wednesday, February 15, 2012

Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing

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

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

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

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

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

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

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

Sunday, February 12, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, February 08, 2012

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

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

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

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

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

Monday, February 06, 2012

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

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

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

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

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

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

Wednesday, February 01, 2012

Notable recent state child porn sentencing developments in South Dakota

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

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

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

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

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

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

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

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

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

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

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

A concurring opinion in Bruce adds these notable observations:

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

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

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

Tuesday, January 31, 2012

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

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

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

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

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

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

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

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

Sunday, January 29, 2012

"Should Teens Be Jailed for Sex Offenses?"

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

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

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

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

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

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

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

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

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

Saturday, January 28, 2012

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

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

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

Some related recent federal child porn restitution posts:

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

Tuesday, January 24, 2012

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

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

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

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

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

Monday, January 23, 2012

SCOTUS sorts through applicability of SORNA in Reynolds

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

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

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

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

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

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

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

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

Sunday, January 22, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, January 21, 2012

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

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

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

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

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

Friday, January 20, 2012

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

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

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

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

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

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

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

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

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

Tuesday, January 17, 2012

Iowa legislators talking about special nursing home for aging sex offenders

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

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

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

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

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

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

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

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

Tuesday, January 10, 2012

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

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

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

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

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

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

Monday, January 09, 2012

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

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

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

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

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

Saturday, January 07, 2012

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

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

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

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

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

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

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

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

Friday, January 06, 2012

Many states still resisting federal sex offender mandates

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

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

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

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

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

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

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

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

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

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

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

Saturday, December 24, 2011

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

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

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

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

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

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

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

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

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

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

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

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

Friday, December 23, 2011

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

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

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

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

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

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

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

Tuesday, December 20, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 14, 2011

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

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

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

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

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

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

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

Some related posts on related rulings from other circuits:

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

Tuesday, December 13, 2011

Eleventh Circuit addresses interesting SORNA and ex post facto issues

The Eleventh Circuit has an interesting decision today on federal sex offender registration rules and ex post facto concerns in US v. WBH, No. 09-13435 (11th Cir. Dec. 13, 2011) (available here). The unanimous panel ruling begins this way:

The Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901, et seq., which was enacted in 2006, requires criminals who have been convicted of a sex offense to register as sex offenders.  In 1987, nearly 20 years before that Act was enacted, the defendant in this case was convicted of first degree rape.  If he had ended his criminal career back then, he might not have had to register under SORNA.  Instead of giving up crime, however, the defendant branched out into another field of criminality and in 2009 was convicted in this case for conspiracy to violate federal drug laws.  Because of the defendant’s earlier youthful offender adjudication on the rape charge, in sentencing him on this federal drug charge the court imposed as a condition of supervised release that he register as a sex offender under SORNA.  This is the defendant’s direct appeal from that sentence, challenging the requirement that he register as a sex offender.

The issue is whether it violates the Ex Post Facto Clause to require a defendant who is convicted of a post-SORNA crime that is not a sex offense to register as a condition of supervised release because of a pre-SORNA, Alabama Youthful Offender Act conviction that is a sex offense.  See U.S. Const. Art. I, § 9, cl. 3. The answer, as we will explain, depends on whether the SORNA registration requirements are civil or criminal in nature for ex post facto purposes. As we will also explain, those registration requirements are, on the whole, civil in nature.

December 13, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (22) | TrackBack

Wednesday, December 07, 2011

"Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259"

The title of this post is the title of this new paper by Steven Joffee now available via SSRN. Here is the abstract:

Child Pornography is a vicious and heinous crime that preys on the most vulnerable and innocent members of our society.  In recognition of the devastating impact that child pornography can have on its victims, Congress has enacted multiple anti-child-pornography statutes designed to address the problem. Among these statutes is the Mandatory Restitution for Victims of Sex Crimes Act, codified at 18 U.S.C. section 2259.  Section 2259 was specifically enacted to ensure that victims of any defendant convicted of producing, distributing, or possessing child pornography would receive restitution for the full amount of the victim’s losses.

Although Congress intended for Section 2259 to apply in any case in which a victim has “suffered harm” as a result of a defendant’s conduct, its inclusion of the term “proximate result” in the Act’s catchall loss provision has created much confusion amongst federal courts.  As a result of this confusion, several courts have simply ignored the mandatory language of Section 2259 and have flatly refused to award victims of child pornography with restitution, ultimately rendering the Act mere rhetoric.

To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear.  Only by resolving this issue will Congress’ intent to provide all victims harmed by child pornography with full compensation be achieved, ensuring that those who harm the “Amys” of this world will be held fully responsible for their abhorrent conduct.

December 7, 2011 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, November 28, 2011

Notable Ninth Circuit ruling questioning residency restriction as supervised release condition

While on the road for the holiday weekend, I missed a notable Ninth Circuit ruling handed down on Wednesday concerning the creation of a residency restriction as a supervised release condition for a sex offender. The panel opinion in US v. Rudd, No. 10-50254 (9th Cir. Nov. 23, 2011) (available here), gets started this way:

William Newton Rudd appeals the district court’s imposition of a residency restriction as a special condition of supervised release, following his conviction and sentencing for one count of violating 18 U.S.C. § 2423(c), which prohibits U.S. citizens from traveling to a foreign country and engaging in illicit sexual conduct.  The special condition prohibits Rudd from residing “within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18.”  We have jurisdiction pursuant to 18 U.S.C. § 3742.  Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error.  Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction. 

November 28, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Monday, November 21, 2011

Committed sex offenders climb roof with nooses to protest confinement conditions

ImagesCAFGHOTPBreaking this afternoon is this interesting story out of Virginia, headlined "Rooftop standoff with noose-clad sex offenders ends."  The piece reports on the extreme (and successful) efforts by a pair of confined sex offenders to bring attention to their complaints about the conditions of their confinement.  Here are the details:

A three-and-a-half-hour standoff at a psychiatric facility for sex offenders who have already served their prison sentences ended without incident Monday when the two men who had climbed onto a roof with nooses around their necks climbed down and shook hands with police and officials.

The standoff at the Virginia Center for Behavioral Rehabilitation, which began around 11:30 a.m., ended just before 3 p.m. when police brought in ladders and the offenders took off their nooses and climbed down.  The men were not immediately arrested but were assessed by medical personnel, Virginia State Police Sgt. Thomas Molnar said.

Offenders at the facility told The Associated Press the men climbed a fence to get to the awning, which is connected to the main building and is about 15 feet off the ground.  The men had fashioned nooses from bed sheets and tied them to a building support, demanding to speak to a state official about conditions at the facility.  The protest could be seen from a nearby highway....

[S]everal residents of the facility identified them as William Dewey and Victor Johnson. Dewey has complained to the AP about his treatment at the facility on several occasions. "Nobody wants to listen to us anymore," said offender Timothy East, one of several to report the standoff.  "There's no voice here.  Some people are taking drastic measures to make their voice be heard."

In calls and letters to the AP, Dewey and other offenders have complained about an increase in security.  The nearly 300 offenders were sent to the facility after serving their prison sentences.  The U.S. Supreme Court has said such civil commitment programs are constitutional as long as the offenders are there for treatment, not further punishment.

The offenders argue their privileges, such as outside recreation and property allowances, continue to be cut back while security increases.  "It's too much of a prison mentality here," East said.  "When they start going back to prison mentality that means we'll go back to it, too, and they're not going to like it."

Gordon Harris, another offender at the center, said he was in art class when everyone started running toward the yard where the standoff was taking place.  He said many residents are upset over the restrictions and the lack of treatment.  "There is no treatment here," he said.  While two state inspector general reports in 2007 and 2008 were highly critical of the amount of treatment offenders received, that has increased in recent years.

November 21, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Sex Offender Sentencing | Permalink | Comments (30) | TrackBack

North Carolina sex offender sentenced 5.5 to 7.5 years(!) for Facebook friending of victim

Because I am not a First Amendment expert, I am not sure if there are any viable constitutional arguments against punishing persons for using Facebook.  But as a sentencing expert, I am sure that this local story from North Carolina highlights how severe some punishments can be for sex offenders who use social media in prohibited ways.  Here are the details:

A convicted sex offender was sentenced to 66-89 months in prison Thursday after officials said he sent a Facebook "friend request" to one of his victims.   Victor Terrell Gaston, 36, of Reidsville, pleaded guilty to one count of using social media as a sex offender in Rockingham County Superior Court.  Judge Stuart Albright sentenced his as a habitual offender.

Officials say Gaston sent the request on July 4, exactly 10 years after the offense occurred in 2001.  Gaston had been ordered to not have contact with the victim. Gaston was arrested three days after sending the request. Officers said he had been using Facebook for about two weeks.

Gaston had been a registered sex offender since November 26, 2003.  He has previously been convicted of charges involving assault, larceny, indecent liberties with a child and burglary.

Rockingham County Chief Assistant District Attorney Julia Wolf Hejazi said it is important to keep sex offenders away from social media websites.  "Victims of sexual assaults have a right to be left alone, and this law helps to protect their privacy," Hejazi said, in a press release.

Some related posts:

UPDATE:  This recent AP article, which is headlined "Inmates harass victims via Facebook," highlights why the next bit important criminal law specialty may become social media and crime and punishment. Here is an excerpt:

Across the U.S. and beyond, inmates are using social networks and the growing numbers of smartphones smuggled into prisons and jails to harass their victims or accusers and intimidate witnesses.  California corrections officials who monitor social networking sites said they have found many instances in which inmates taunted victims or made unwanted sexual advances....

"The ability to have these kinds of contacts is increasing exponentially. In many ways, the law has not caught up with these changing technologies," said Rob Bovett, an Oregon district attorney...

Timothy Heaphy, U.S. attorney for the Western District of Virginia, said criminals' use of social networks to reach witnesses has made his job harder. "We deal every day with witnesses who are afraid of being identified," he said.  "If there are increased instances where folks who are incarcerated can reach outside the walls of the jail, that's going to make it more difficult for us to get cooperation." ...

The issue has emerged as cell phones have proliferated behind bars. In California, home to the nation's largest inmate population, the corrections department confiscated 12,625 phones in just 10 months this year.  Six years ago, they found just 261.  The number of phones confiscated by the federal Bureau of Prisons has doubled since 2008, to 3,684 last year....

In the old days, those behind bars would have to enlist a relative or friend to harass or intimidate to get around no-contact orders.  Social networks now cut out the middle man....

Last June, Oregon legislators approved a law prohibiting inmates from contacting their domestic violence victims from behind bars.   In California, prison officials are working with Facebook to identify inmate accounts and take them down. But that only generally happens only after the damage is done.

November 21, 2011 in Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (23) | TrackBack

Wednesday, November 16, 2011

Fascinating CVRA and FSA issues seemingly ready for SCOTUS review

As I have mentioned before, John Elwood at SCOTUSblog does amazing work keeping up with the cases that the US Supreme Court is keeping in its midst for an unusually long time through his periodic posts labelled "Relist (and Hold) Watch."  And, in this latest installment, he notes sets of cases raising two issues that have gotten a lot of attention on this blog now perhaps finally groomed for SCOTUS review:

The Court relisted for the first time since calling for a response in Fisher v. U.S. District Court for the Northern District of Texas, 10-1518, which presents the question whether a crime victim seeking to enforce a right under the Crime Victims’ Rights Act is entitled to ordinary appellate review of a district court’s disposition of his claims, or only more limited mandamus review for clear and indisputable error.  The Court likely relisted Fisher to consider it together with Amy v. Monzel, 11-85, scheduled for the November 22 Conference.  In addition to the standard-of-review question also at issue in Fisher, Amy presents another question, and alleges another circuit split, about the role of proximate cause in restitution awards for victims of child pornography....

The Court also relisted in Davis v. United States, 11-5323, another in the group of petitions discussed last week that the Court is collecting for the November 22 Conference along with Hill v. United States, 11-5721, all addressing whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.  As noted last week, it seems all but certain the Court will grant cert. in one of these cases.

My SCOTUS sentencing cup will be running over if the Justices grant review on both these issues in the weeks ahead.  And, if the Court takes up these matters ASAP, what started as a pretty sleepy sentencing Term for the Court could quickly become one of the most interesting to watch in recent years.

November 16, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 14, 2011

Prison terms for downloading child porn in Canada are a lot different, eh?

This crime and punishment story from Canada, which is headlined "Man in record child porn bust set for sentencing," spotlights just how different the sentencing scale is for child porn downloading north of the border.  Here are the basics (with my emphasis added):

A New Brunswick man who pleaded guilty in a case involving the largest collection of child pornography in Canada will be sentenced Monday following a delay for a psychiatric evaluation.  Douglas Hugh Stewart, 52, of Moncton earlier pleaded guilty to possessing, accessing and distributing child pornography.

Crown prosecutor Karen Lee Lamrock said police found almost six million images and videos of girls — more than 4.5 million pornographic.  The others were images of children who were nude, including in bathtubs.

Lamrock said Stewart had been collecting since the 1980s and he looked for new material on a regular basis, and the size of the collection is something never dealt with before in Canadian courts.  Police spent 700 hours going through the images, involving girls as young as two years old.

The Crown is recommending a sentence of five to seven years in prison and wants Stewart to be listed as a registered sex offender.  Defence lawyer Maurice Blanchard is requesting a sentence of four years. The defence also noted Stewart has no criminal record, and co-operated with police from the beginning of the case.

Because the defendant here had downloaded and stored 6 million(!) images, I am tempted to call this case the holocaust of kiddie porn and to call the defendant the Hitler of child porn downloaders.  And yet notably, prosecutors in Canada have responded to the most aggravated of all cases of child porn downloading by recommending a sentence of five to seven years in prison.  

Meanwhile, in the United States, defendants prosecuted in federal court who downloaded 600 images of child porn regularly face guideline recommended sentencing ranges of a decade or more in federal prison — in other words, defendants who downloaded only 0.01% of the number of images downloaded by this Canadian defendant regularly face federal sentences at least twice as long as the sentence being urged by Canadian prosecutors.  And, in a notable state case from Arizona a few years back, Morton Berger received a 200-year state sentence for a much smaller kiddie porn collection (basics here and here), and just a few weeks ago in Florida, Daniel Enrique Guevara Vilca received a life without parole sentence for having lots of kiddie porn on a single laptop (basics here and here).

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

UPDATE:  The link above (also here) now has the updated sentencing story reporting that the Canadian defendant that I am calling the Hitler of child porn downloaders "has been sentenced to five years in prison in connection with the largest collection of child pornography ever seized in Canada."  Notably, five years is the statutory mandatory minimum term facing federal defendants charged with receipt of just a few images of child pornography, and the latest federal statistics reveal that federal child porn offenders on average receive a 10 year federal prison term.

November 14, 2011 in Offense Characteristics, Scope of Imprisonment, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (26) | TrackBack

Tuesday, November 08, 2011

"Child-Abuse Reporting Law Is Challenge to Prosecutors"

The title of this post is the headline of this Wall Street Journal report, which ends with a notable sentencing spin on the stunning sex abuse scandal emerging from the Penn State football program.  Here are excerpts:

Ambiguity in a state law on reporting child abuse could complicate the prosecution of Pennsylvania State University administrators in the Jerry Sandusky case.

Tim Curley, Penn State's athletic director, and Gary Schultz, vice president for business and finance, were charged on Monday with failing to report to the authorities allegations that Mr. Sandusky, formerly Penn State's defensive coordinator, had sexually assaulted a minor on campus.  Pennsylvania Attorney General Linda Kelly said the university sat on information that could have prevented further abuse.  The two men have also been accused of lying to a grand jury about what they knew of the allegations.  They have denied the charges. Mr. Sandusky has denied any wrongdoing.

It is unclear if the officials were obligated to report the allegations in the first place, legal experts said.  Messrs. Curly and Schultz could argue they aren't covered by the reporting law, which requires professionals "who, in the course of their employment, occupation or practice of their profession, come into contact with children" to report any suspected abuse....

Whether or not the "failing to report" charges survive, the two are each charged with one count of perjury, which carries a punishment of up to seven years in jail.  Under sentencing guidelines, they would likely face one to 12 months....  The "failing to report" charge carries a maximum of 90 days in jail and a $200 fine.  Some observers wonder why lying to a grand jury about knowledge of child-abuse allegations carries a stiffer punishment than failing to report them in the first place.

"Frankly, we need to take a look at whether the penalties need to be increased for failing to report," said Pennsylvania state representative Todd Stephens (R.), a former assistant district attorney who used to prosecute sex crimes.

November 8, 2011 in Offense Characteristics, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (25) | TrackBack

Saturday, November 05, 2011

"Life Sentence for Possession of Child Pornography Spurs Debate Over Severity"

The title of this post is the headline of this effective New York Times story discussing the remarkable case from Florida first blogged here. Here is how the piece starts:

Does downloading child pornography from the Internet deserve the same criminal punishment as first-degree murder?

A circuit court judge in Florida clearly thinks so: On Thursday, he sentenced Daniel Enrique Guevara Vilca, a 26-year-old stockroom worker whose home computer was found to contain hundreds of pornographic images of children, to life in prison without the possibility of parole.

But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.

November 5, 2011 in Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (53) | TrackBack

Thursday, November 03, 2011

Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn

The lengthy sentences sometimes given to downloaders of child pornography in federal court often are much longer than those handed out for this crime in state courts.  However, as detailed in this local piece from Florida, headlined "East Naples man sentenced to life in prison for child porn," some state sentences for child porn possession are even more extreme than federal law provides:  

An East Naples man was sentenced to life in prison Thursday following his conviction last month in one of the county’s largest child pornography cases.  The sentencing of Daniel Enrique Guevara Vilca, 26, came after a six-person jury found him guilty Oct. 6 on 454 counts of possessing child pornography.  Collier County sheriff’s investigators seized a computer from Guevara Vilca’s Landover Court apartment in January 2010 and found about 300 sexually explicit pictures containing children and 38 hours of taped child pornography.

Guevara Vilca faced more than 300 years in prison. The minimum sentence under a state score sheet was 152 years in prison. Guevara Vilca turned down a 25-year plea agreement before trial....

The sentence is the most severe in county history for a child pornography possession case. In 2009, Naples resident Douglas Deering received a 25-year sentence as part of a plea deal on 197 child pornography possession counts.

This companion piece, headlined "East Naples man's life sentence for child porn too harsh, attorney says," reports that the defendant's attorney will challenge the constitutionality of this sentence on appeal:

His defense lawyer, Lee Hollander, argues that others in Collier County have committed crimes more serious and violent, yet received lesser punishment than Guevara Vilca, who had no prior criminal record....  “People who are actually creating child porn or molesting children are getting lighter sentences than people who are in possession of it,” Hollander said.  “The guy is doing life in prison for looking at child porn. I’m sorry, but that just doesn’t compute.”

Less sympathetic Thursday was Assistant State Attorney Steve Maresca.  He said it was “offensive” to claim possession of child porn is a nonviolent crime, adding that consumers such as Guevara Vilca keep alive a market for children to be sexually abused.  “I think (the sentence) sends a message that this is a serious crime,” Maresca said. “This is a crime that continues on and on. Those images are there forever, which means some of those children have to deal with it forever.”

[Collier Circuit Judge Fred] Hardt had little choice but to follow state law in putting Guevara Vilca behind bars for life. A sentencing score sheet required a minimum sentence of about 152 years in prison — a far cry from the 25-year plea agreement Guevara Vilca rejected before the trial. The number and severity of the charges allowed Hardt to impose a life sentence under state law.

Hardt reviewed several factors that could have allowed him to depart from the minimum guideline, including the defendant’s mental health history and the constitutionality of the sentence. He found no reason to impose a lighter sentence. “The fact that this court might — and I’m not saying it does — believe that this sentence is disproportionate is not valid grounds for departure,” Hardt said.

Hollander said he plans to appeal the sentence, calling it a cruel and unusual punishment that violates the Eighth Amendment of the Constitution.

The principle of his claim — that a child porn consumer shouldn’t receive a life sentence when child sex abusers often receive lighter punishments — drew debate Thursday from state law professors.

“That argument can be made,” said Bob Dekle, a University of Florida law professor who spent about 15 years prosecuting sex crimes in northern Florida. “How good it is and how persuasive is another question. I don’t find it very persuasive.”...

Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sex offender laws, suggested a life sentence for child pornography possession is excessive.  “I don’t think somebody should get life in prison for possessing child pornography that they didn’t produce,” Lave said.  “I don’t think it should be the same as somebody who commits first-degree murder or a string of violent crimes.  Part of what the justice system needs to do is punish proportionally.”

Hollander said his appeal of the sentence “probably is going to end up in front of the Florida Supreme Court in some shape or form.”

November 3, 2011 in Assessing Graham and its aftermath, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (29) | TrackBack

Thursday, October 27, 2011

"Sex Offender Fined $200 For Licking and Fondling Cardboard Woman in Rite Aid"

The title of this post, which is the headline of this report from Gawker drawn from a local news report, describes the notable recent offense and sentencing of a Massachusetts sex offender.  Befitting the amusing crime, here is the amusing Gawker account:

How many times have you come across a life-sized standee in a movie theater lobby or department store, and not thought to yourself, "If only our ass-backwards society didn't disapprove of inter-dimensional dating, this cardboard cutout of Nikita and I could probably be pretty happy together." Well, Charlie J. Price of Pittsfield, Ma., doesn't abide by musty precepts like "social mores" or "not licking cardboard ladies in public."

On Saturday evening, an intoxicated Price waltzed into a Rite Aid and locked eyes with the sunglass-display model of his dreams. According to a Pittsfield Police report, he then "grabbed hold of the sunglass display, hugged it tightly and then began to lick and kiss the face of the female party on the display." This went on for about a minute, police said, and ended with the two star-crossed, partially laminated lovers rolling around on the floor, blissfully unaware of the terrified customers inching away around them.

Price, whose lack of self-control and inhibition has gotten him into serious trouble before (he's a Level 3 sex offender, which apparently is very sex-offendery), was detained by police and soon found himself in front of a judge. He was fined $200.

Though I am certain it is not PC to make light of a drunk sex offender behaving badly at the local drug store, I promise not to be offended if commentors have some light-hearted reaction to this story.

October 27, 2011 in Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Tuesday, October 25, 2011

Noting the costs of being tough on sex offenders in Iowa

This local article, headlined "Iowa sex offender convictions rise, pushing up costs, data show," reports data on sex offender convictions and consequences in the heartland.  Here are the details:

The number of people convicted in Iowa for sex crimes has grown for each of the last five years, driving up the already growing cost to taxpayers of monitoring and imprisonment.

A draft of a new state report shows prisons are also housing sex offenders for longer periods of time and parole caseloads are growing significantly.  By 2021, some 2,600 sex offenders are expected to be serving “special sentences” under a stringent state law passed in 2005, meaning they will be supervised after their prison release for 10 years or life depending on the seriousness of their crimes.

“The special sentence, particularly lifetime supervision, will increase the parole caseload by 78 percent in 10 years,” the draft report released this month by Iowa’s Division of Criminal and Juvenile Justice Planning found.  The additional cost of monitoring the offenders will total at least $34.54 million during that span, according to the report.

Members of the Iowa Sex Offender Research Council will meet Wednesday at the Statehouse to discuss the new report.  The council has urged state leaders to explore more effective and less expensive ways of monitoring sex offenders.  “We’re trying to figure out policy-wise what makes the most sense to do now,” said Sally Kreamer, who heads the 5th Judicial District correctional services.  “Caseloads are only going to get larger and larger.  If we don’t figure out some strategy soon, I’ll have to come back to my board and say, ‘What is it that you don’t want us to do anymore?’ ”

The Legislature agreed last year to allow corrections officials to use risk assessments to decide which offenders should be subject to electronic monitoring after they have been released from prison.  That move saved thousands of dollars without causing any increased public safety issues, Kreamer said.  She said research shows Iowa has been more successful than others in monitoring those at highest risk and curbing recidivism.

Now, however, officials are running out of ideas on how to deal with the cost of housing more sex offenders in prison and monitoring hundreds more on parole throughout the state.  “Were trying to brainstorm and figure out what to do,” Kreamer said.  “But it’s really hard to find good ideas.”

The number of sex offenders in Iowa prisons reached 542 this year, up from 507 in 2007. Those sent back to prison for parole violations this year numbered 68, compared with four in 2007....

A 2009 investigation by The Des Moines Register found the flood of new sex offenders under supervision would cost taxpayers a minimum of $168 million over 20 years, or about $8.4 million a year.  The new study tallied only the minimum monitoring that would be required under the 2005 law and excluded the probation officer salaries the Register considered....

[T]he new state report and other research nationally suggests more savings might be found by assessing and treating juvenile offenders, who make up a growing part of Iowa’s sex offender population.  “There is more latitude in the juvenile area because they respond more easily to treatment,” said [State Senator Bob] Dvorsky, a member of the sex offender council. “There are ways that maybe we can work with them and get them out of the system if they are identified quickly.”

October 25, 2011 in Criminal Sentences Alternatives, Offense Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Friday, October 21, 2011

Interesting sex offender parole story (and parole data) from Kentucky

Folks like me who spend (too) much time obsessing about the federal sentencing system can (too) readily forget that parole remains an important part of many state sentencing systems.  And this local article, headlined "Laurel Co. sex offender paroled after serving 12 years of 100-year sentence," provides an interesting tale of parole (and some state parole from Kentucky.  Here are excerpts:

A Laurel County sex offender was paroled from prison earlier this month after serving less than 13 years of a 100-year sentence. Anthony L. Carroll, 53, was eligible for parole under the law that was in place when he committed the crimes in the early 1990s.

Still, the state Parole Board didn't have to let him out of prison, said Commonwealth's Attorney Jackie Steele, whose office opposed the parole.   Steele said a jury essentially said Carroll should spend the rest of his life in prison and noted the children involved have to live with what Carroll did to them the rest of their lives.

"For him to walk out in 12 years is an insult to the victims and the Commonwealth of Kentucky," said Steele, the felony prosecutor for Laurel and Knox counties. "There's no justice in that."  The mother of the boy Carroll was convicted of molesting said she thinks Carroll had somehow "gotten some strings pulled" to get released.  "It was something that was just crazy. How could this happen?" the woman said....

Verman Winburn, chairman of the board, said in a statement there was no outside influence or pressure to parole Carroll.  "The board took into consideration the fact that he has made changes in his life and taken responsibility for his crimes," Winburn said.

He said Carroll had completed sex-offender treatment, will receive aftercare treatment, and will be supervised for the rest of his life. Carroll must register as a sex offender.   "Our hope is that he will live a law-abiding life," Winburn said.

There has been a trend toward paroling more people as officials have looked for ways to cut prison costs.  In the 2005-06 fiscal year, 43 percent of eligible inmates were paroled, while 37 percent were deferred for later consideration, according to figures supplied by the Justice and Public Safety Cabinet.  In the 2010-11 fiscal year, 54 percent of eligible inmates were paroled, and the deferment figure had dropped to 28 percent.   In the rest of the cases, inmates were ordered to serve out their sentence.

Jennifer Brislin, spokeswoman for the state Justice and Public Safety Cabinet, said there has been a renewed focus on efforts such as substance-abuse programs and tailored parole supervision aimed at helping parolees stay out of trouble.   The Parole Board, which is independent of the Cabinet, also has better tools to assess who to parole, she said.  Parole decisions are made with public safety in mind, Brislin said.   She said state figures show the percentage of inmates paroled who commit a new crime within two or three years has gone down since 2007.

Carroll was convicted in 1999 of five counts of sodomizing a young boy.  The abuse had taken place in the early 1990s, but the boy didn't come forward until years later, after his half-sister told their mother about abuse by Carroll, their mother said.  Carroll was tried for molesting the boy, who testified in graphic detail, said Danny Evans, who prosecuted the case.

A judge followed the jury's wishes and sentenced Carroll to 100 years in prison.  There were indications the girl had been molested, as well, but Carroll was not tried for any alleged abuse of her, her mother said.  That was because officials felt it was not necessary to put the girl through the ordeal of testifying, given the 100-year sentence Carroll faced, the mother said.

Under the law in place at the time of his crimes, a person convicted of committing a violent crime had to serve half the sentence, or 12 years — whichever was less — before becoming eligible for parole. V iolent offenders must now serve at least 85 percent of their sentence.

October 21, 2011 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Saturday, October 15, 2011

Sex offender registers Occupy protest camp as home address

This local article from Oregon, which is headlined "Sex offender claims Occupy Portland as address," reports on an interesting new connection between recent public protests and crime and punishment. Here are excerpts:

Portland police report that one of the residents of the Occupy Portland camp is a sex offender from California. A police lieutenant says the man registered at the Portland Police headquarters, and gave his local address as ‘Lownsdale Square, Occupy Portland.'

Protesters whom FOX 12 spoke with remained unconcerned that a sex offender may be in their midst....

"He is in Portland from California, and he listed his address as ‘ Lownsdale Square, Occupy Portland,'" Said Portland Police Lieutenant Robert King. King says the man registered with detectives as Raymond Allen Curtis, 32, and is complying with the law by checking in with Portland Police.

"It doesn't concern me, ‘cause I lived in Southeast Portland where there's one in every corner and every house anyways," Julianne Dunn says. "You never know when you could be attacked wherever you're at. So you have to be aware of your surroundings."

Surrounded by City Hall, the Justice Center and the Multnomah County courthouse, campers are preparing for the second weekend of Occupy Portland.

October 15, 2011 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (24) | TrackBack

Monday, October 03, 2011

Sex offender standing before SCOTUS this morning in Reynolds

As explained in this helpful SCOTUSblog post, the Supreme Court is hearing arguments this morning in a sex offender case to kick of the start of its new Term, but what is at issue seems quite narrow and of limited long-term consequences.  The case is Reynolds, and here are the essentials:

In Reynolds v. United States, the Court will consider a surprisingly narrow issue: standing. In particular, the case asks whether a sex offender who was convicted before SORNA’s enactment has standing to challenge the Attorney General’s rule that applies SORNA’s registration requirement to pre-enactment offenders.

SORNA requires every sex offender to register, and to keep the registration current, in each jurisdiction where the offender lives, works, or studies. It provides that a sex offender’s failure to register, or to keep registration current, itself constitutes a federal crime. Section 16913(d) delegates to the Attorney General the authority to say whether and how SORNA’s registration requirements apply to sex offenders who were convicted before SORNA’s enactment...

The petitioner in this case, Billy Joe Reynolds, was convicted of a sex crime in Missouri in 2001 and sentenced to imprisonment.   Upon his release in 2005, he registered under Missouri law and subsequently updated and verified his registration as required by Missouri law.

In November 2007, Reynolds was charged and indicted with violating SORNA’s registration requirements after he moved to Pennsylvania without updating his registration. He moved to dismiss the indictment, arguing — among other things — that the Attorney General’s rule violated the APA.   The district court denied the motion, and Reynolds entered a conditional plea, reserving the right to appeal the denial of his motion to dismiss.   The Third Circuit affirmed, ruling that SORNA’s registration requirements applied to pre-enactment offenders by their own force, even without the additional rule by the Attorney General.  The court concluded that Reynolds therefore had no stake in the rule and no standing to challenge it.  (It is not clear if this case involves formal Article III standing, or “standing" in its more colloquial sense.   But it doesn’t matter: either way, Reynolds has to show that he had some stake in the Attorney General’s rule.)  This appeal followed....

[T]his case is not framed to present the more interesting constitutional issues around SORNA. The Court will almost surely limit its ruling to the precise standing issue here. Given all this, we might wonder why the Court even agreed to hear the case. It’s likely that the Court just needed to resolve a circuit split — a simple explanation for a surprisingly narrow case.

I share the view that Reynolds is a "surprisingly narrow case" — I am even inclined to call it annoying narrow given all the broader constitutional and statutory issues that surround SORNA.  That said, I suspect today's oral argument and the ultimate ruling in Reynolds could provide some hints as to how various Justices view SORNA and its many notable "big federal government" elements.

October 3, 2011 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, September 28, 2011

Arizona locality approves ordinance banning sex offenders from all public facilities

As detailed in this local story, which is headlined "Huachuca City bans sex offenders from public facilities," a locality in Arizona has enacted a uniquely broad ban on sex offenders in public spaces.   Here are the details:

In a bold and unprecedented move for an Arizona jurisdiction, the town of Huachuca City is cracking down on registered sex offenders by banning them from all public facilities. Mayor and council unanimously approved the ordinance last Thursday, which is set to take effect late October.

“As a town and as a community, we have to protect our children. As a council, we have to make the right calls,” Mayor Byron Robertson told KGUN9 News. “Our police chief indicated that we were having a serious problem with some pedophiles that were being a nuisance and we took steps to overcome that.”

The ordinance creates “child safety zones,” by banning all registered sex offenders from schools, parks, libraries, pools, gymnasiums, sports fields and sports facilities. Sex offenders must pay $100 fine per violation; repeat offenders will be charged with trespassing.

Police say they’ll rely on tips from the community as well as heavy patrolling to enforce the ordinance. “I don’t want to make it sound like Big Brother is watching, but we do have a file on sex offenders in the area, complete with photographs, so our officers will hopefully recognize them,” said Lt. Jennifer Fuller, a spokesperson for the Huachuca City Police Department.

Fuller said the impetus for the ordinance stems from a recent incident, in which a registered sex offender spent time loitering around the public pool and taking photographs, making parents and children uncomfortable....

There are exceptions: Sex offenders may enter public facilities to pick up their children, vote in an election, or to discuss with someone their kids’ health or education.

September 28, 2011 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

"Megan's Laws as a Case Study in Political Stasis"

The title of this post is the title of this new piece from Professor Wayne Logan now available via SSRN. Here is the abstract:

Sex offender registration and community notification laws, today commonly known as Megan's Laws, are typically seen as consumate products of legislative panic.  Unlike many other panic-driven laws, however, the political forces motivating Megan's Laws have not dissipated, and the laws have grown exponentially over time, despite research casting considerable doubt on their public safety efficacy.  This symposium contribution examines how and why Megan's Laws have endured -- even thrived -- notwithstanding concerns over their utility, and reflects upon their likely continued political impregnability in the years to come.

September 28, 2011 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, September 26, 2011

Plans for modern leper sex offender colony in Florida

A helpful reader alerted me to this local story from Florida, which is headlined "Sex offender village planned for Lake County" and starts this way:

A Central Florida woman wants to house hundreds of sex offenders in rural Lake County. The planned sex offender village would start with 288 predators and offenders in a leased facility, but could expand to 1,100 on 500 acres.

Barbara Farris, head of a new organization called S.O Solutions, Inc., sees the remote spot as a solution to housing sex offenders she's been fighting to keep out of neighborhoods. "It's not right in city limits.  We're miles away between Sorrento and Sanford," she said.

The goal of the facility would be to take offenders away from the temptation to offend again by living near children. "They have an atmosphere where they're not looking out their window at kids in a park, not a mile away from your school," said Farris. She also says they would offer not only housing, but monitoring, counseling, help finding a job, and transportation.

"Honestly, I wanted to cry. I was absolutely furious," said mother of a year old girl Victoria Morris, who lives just outside Sorrento. "This can't happen to our neighborhood." The mother started a Facebook page and a petition she's just started to circulate online to fight the plans of a sex offender village.

September 26, 2011 in Collateral consequences, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Noting the significant costs (and unclear benefits) of tracking lots of sex offenders

The economic costs and uncertain benefits of tracking lots of sex offenders is spotlighted by this lengthy local piece out of Ohio, which is headlined "Keeping track of sex offenders costly: Sheriff puts the low end of costs at about $179,000 annually."  Here are excerpts:

Change in laws in the past five years have forced counties to spend thousands of dollars on registering and tracking sex offenders and the way cases are handled in court.   The Butler County sheriff predicts the number of sexual offenders his office must monitor will double in five years, but despite budget woes, he believes keeping vigilant is a high priority.

On average, Sheriff Richard Jones’ office monitors 460 sex offenders. That number jumps to around 700 if juveniles and offenders who only work in the county are included.   The increase in the number of sex offenders will raise the cost of monitoring sex offenders for counties, and some law experts said it will continue to clog the court system....

A low estimate of the cost of dealing with sex offenders is $179,000 annually, Jones said. That number includes salaries for the assistant prosecutor, who handles all cases involving children, the sheriff’s deputies who monitor offenders once they leave prison, mailing costs for notifications that go out to neighbors when a sex offender moves into town and costs to hunt down offenders who have skipped the state and violated reporting requirements....

The across the board changes, with reporting requirements for even the least severe of sex crimes, have also permeated the court system.  Chris Pagan, a defense attorney who has represented people accused of sex crimes, says the law is clogging the docket.  “It is certainly a lot more difficult to settle sex cases now than it was before,” he said.  “People who are truly innocent, the fact that there would be a registration requirement is a deal stopper most of the time.”

Some question why sex offenders are required to register and submit to monitoring, but murderers, robbers, burglars and other criminals remain virtually invisible once they are released from prison.   Matt Kanai, general counsel for law enforcement for the state attorney general’s office, said registration isn’t meant to punish the offenders; it is a tool for the public.  Sex offenders, he said, are viewed as people who will likely attack again, so keeping tabs on them and providing their locations to the public is a service.

“Sex offenders do tend to operate in their neighborhood. Crimes like murder aren’t neighborhood specific.  They are not necessarily looking at everyone that’s mowing their yard or walking down the sidewalk as their next potential victim,” Kanai said.  “Murders happen in the heat of the moment or in a bar or liquor store.  Those people aren’t thinking when I see people walking down the street I want to go murder that person, but sex offenders we do have that concern, that every person is a potential victim.”

However, a study by J.J. Prescott of the University of Michigan and Jonah Rockoff of Columbia University in 2010 found while registering sex offenders appears to be a good, notifying the public is not always a good thing. Public notification may scare away those inclined to be future offenders.  But it appears to actually increase the likelihood that convicted sex offenders will offend again, the study shows analyzing national crime data.

September 26, 2011 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack