Monday, February 04, 2013
Guest post: "Victims of Human Trafficking Can Vacate Convictions in NY"As regular readers know, I welcome guest posts from all quarters, and I was pleased when prominent New York criminal practitioner Arkady Bukh (firm website here) sent me this extended discussion of an important legal issue:
It has long been a fact that the victims of human trafficking, especially sexual trafficking, suffer not just from their abusers, but also from a criminal record that they carry with them the rest of their lives. This record can keep them from turning their lives around by keeping them from regular employment, good credit and in general ruining their overall reputation in the community. How sad is it that someone coerced or sold into sexual slavery at the age of 13 cannot obtain a normal life even when their abuser has been caught or they have escaped from them. At the present time there are seven states that have enacted legislation to clear the criminal records of the victims of human trafficking and they are: New York, Illinois, Maryland, Nevada, Vermont, Washington and Hawaii. This is a brief overview of the law as it presently stands in New York State.
a) The New York Vacating Convictions law at this time can only be applied to persons that have been convicted of two crimes: 1) New York Penal Law §230.00 – Prostitution; 2) New York Penal Law §240.37 Loitering for the Purpose of Engaging in a Prostitution Offense.
b) This statute states that there is not official documentation of trafficking required for a victim to qualify, however, if they do have official documentation such as a letter from the Dept. of Health stating that they were a victim of human trafficking then there is a presumption created that their convictions were from trafficking. There is no evidence such as this required in the New York Law and personal affidavit is accepted.
c) Importantly the New York law does NOT MANDATE that victims bringing their motions for vacatur to have to prove that they have exited prostitution or have entered some sort of "rehab" type of program in order to gain this remedy. However, in order to insure that victims can come forward even years after their victimization has ended to clear their conviction history, the legislation has included the following paragraph for their benefit, not as a mandate:
A motion under this paragraph shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or has sought services for victims of such trafficking, subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of such trafficking that may be jeopardized by the bringing of such a motion, or for other reasons consistent with the purpose of this paragraph. N.Y. CRIM. PROC. LAW §440.10(1)(i)
d) A major aspect of the victimization of these people is that they have often been threatened with death or injury to themselves or family members by their abusers. For this reason, the NY law allows a victim's motion to be made with privacy allowed to the petitioner. Legal Services and other advocacy groups have made these petitions using only the victim's initials, much the way a minor is often protected in the family courts.
e) The New York creates actual vacatur for the victim which is stronger than an expungement which may be offered by other states. A vacatur is actually the closest thing to erasing the convictions of the victim where in some states that after an expungement the petitioner must then ask the records to be sealed. New York State does not have an expungement remedy for any crime which is why this is done as a vacatur actually vacating the convictions and creating a clean record.
f) If the victim has met all the requirements of this law and is a victim of human trafficking, the Judge has no discretion not to vacate the convictions and dismiss the accusatory instruments. The elements needed to be met are: 1) was a victim of human trafficking, 2) was charged with the crimes and 3) these crimes that they have been charged with were due to the fact of human trafficking.
g) However, a Judge may have discretion to take any additional action they deem reasonable such as possibly vacating other offenses that they consider part of the whole trafficking life of the victim.
h) This law is retroactive and can cover any convictions the victim incurred prior to the law being enacted.
It is a positive thing that New York passed this legislation in 2010 and a good thing that six other states have similar laws on their books. However, it is very sad that 43 states have yet to take this action to protect the victims of human trafficking, especially at a time when this crime has become more and more prevalent. Many victims of trafficking are brought to this country illegally by their abusers and this law makes it possible for them to obtain legal status. "The Board of Immigration Appeals has rules that when a state court vacates a judgment of conviction based on a procedural or legal deficit,..…the conviction is eliminated for immigration purposes".
New Jersey along with other states such as Florida are looking at legislation strengthening their laws against human trafficking, it can just be hoped that at the same they will add legislation that will vacate the convictions of those victims of this crime.
Monday, January 28, 2013
"Rethinking Restitution in Cases of Child Pornography Possession"The title of this post is the title of this article newly posted on SSRN and authored by Jennifer A.L. Sheldon-Sherman. (The piece is especially timely in light of yesterday's New York Times magazine cover story discussed here). Here is the abstract:
Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth.
In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm.
To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.
January 28, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (39) | TrackBack
Sunday, January 27, 2013
Fascinating NY Times magazine cover story on child porn victims and restitutionToday's New York Times magazine has this remarkable cover story headlined "The Price of a Stolen Childhood," which provides a fascinating profile of the two young women now at the center of legal disputes in federal courts nationwide over restitution sentences imposed upon defendants who download child pornography. The lengthy article has too many interesting facets to effectively summarize, but here is one snippet telling early parts of the legal aspects of the story:
Six months after [the first] sentencing [which included a restitution award in October 2008], [Amy's lawyer James] Marsh went after another child-pornography defendant, Arthur Staples, a 65-year-old sheriff’s deputy in Virginia, who had chatted online with an undercover detective and expressed an interest in young children. Staples sent one image of a young girl (not Amy), and he was caught with more than 600 pictures on his computer, including hers. Staples agreed not to appeal any sentence or restitution judgment. The judge sentenced him to 17½ years, and made the unusual move of ordering him to pay all of Amy’s claim. To Marsh’s surprise, Staples turned out to have $2 million in assets. He has since paid $1.2 million to Amy. (Marsh says the government let Staples’s wife keep part of the estate.) While Amy has been turned down for restitution by some courts, which have stated that there was not enough proof that any one man who viewed her pictures was responsible for the harm she has suffered, she has won more than 150 cases, totaling $1.6 million. Most of the amounts aren’t large: $1,000 or even $100, paid out in checks as small as $7.33.
Nicole has also been pursuing restitution. Her lawyer, Carol Hepburn, did her own research and got in touch with Marsh when she learned about the claims he was bringing for Amy. The two lawyers now collaborate on ideas and strategy, though they represent their clients separately. Since receiving her first check for $10,000, Nicole has collected more than $550,000, mostly in small amounts from 204 different men. So far only a few other child-pornography victims have gone to court for restitution. Many may not know there is a legal remedy; others don’t know their images have circulated....
Study after study links child sexual abuse to psychological trauma, addiction and violent relationships in adulthood. There is almost no research, however, that deals with the specifics of Amy and Nicole’s experiences: What additional harm comes from knowing that pictures of your childhood exploitation are circulating widely?
The Supreme Court actually addressed this question in its 1982 decision upholding child-pornography bans. “‘Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution,’” Justice Byron White wrote, quoting from a book about abused children. “‘Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place.’”
David Finkelhor, a sociologist who directs the Crimes Against Children Research Center at the University of New Hampshire, sees the moral weight of the Supreme Court’s proclamation, but not the empirical proof. “The evidence doesn’t yet tell us to what extent the experience of being a pornography victim aggravates the experience of the sexual abuse itself,” he told me. “How do you separate it out?”
Courts have disagreed on this question. In at least a dozen cases, defendants have appealed restitution decisions and mostly won. In five of those cases, federal appeals courts have expressed skepticism that Amy and Nicole should receive more than nominal restitution. Two other appeals courts have allowed the young women to recover from individual defendants as members of the group of viewers but, so far, only for amounts of $10,000 or less. (Amy collected a far greater sum from Arthur Staples because he waived his right to appeal.)
Wednesday, January 23, 2013
Seventh Circuit finds unconstitutional Indiana statute prohibiting sex offenders from social mediaThe Seventh Circuit today handed down a significant new media and sex offender First Amendment ruling in Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (7th Cir. Jan 23, 2013) (available here). Here is how the 20-page unanimous panel ruling gets started:
A recent Indiana statute prohibits most registered sex offenders from using social networking websites,instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.
I am pretty sure this is the first significant circuit court constitutional ruling on this kind of state sex offender internet prohibition, and a quick skim suggests that this Doe ruling is a fairly thorough and thoughtful review of the challenging legal and policy issues raised in this setting. I would guess that Indiana will seriously consider seeking en banc review and/or a cert petition in an effort to preserve its statute, but I would also predict that the Justice may think these issues ought to percolate more before granting review.
UPDATE: This Politco piece about the Doe ruling provides some information about similar rulings and a statement from the Indiana AG in reaction to the decision:
A similar law in Louisiana was thrown out in February of last year, though the state then passed a revised law requiring sex offenders to disclose their status on social networks, and a Nebraska judge in 2009 blocked parts of a sex offender law that restricted Internet access.
Indiana officials did not know Wednesday whether they would appeal the decision. “The Indiana Legislature made a policy decision in 2008 that the state’s reasonable interests in protecting children from predators outweighed the interest of allowing convicted sex offenders to troll social media for information. We have worked with county sheriffs and prosecutors in our defense of the legal challenges to these protections of our children, and we will need to review this 7th circuit ruling to determine the state’s next steps,” Indiana Attorney General Greg Zoeller said in a statement.
Friday, January 18, 2013
Seventh Circuit panel affirms 70-year sentence for "self-described 'kingpin' of child pornography"Though not clearly breaking any new ground, a Seventh Circuit panel has a notable discussion of reasonableness review today in US v. Boroczk, No. 12-1022 (7th Cir. Jan. 18, 2012) (available here). The unanimous panel ruling in Boroczk gets started this way:
Darrick C. Boroczk (“Boroczk”),a self-described “kingpin”of child pornography on the internet, created hundreds of sexually explicit images and videos involving two of his own children. Boroczk pled guilty to four counts of manufacturing and one count of possessing child pornography. After a day long sentencing hearing, the district court imposed four 15-year sentences on the manufacturing counts and a 10-year sentence on the possession count, to be served consecutively, for a total of 70 years’ imprisonment. On appeal, Boroczk argues that the district court committed procedural error and imposed a substantively unreasonable sentence. Finding no merit in Boroczk’s arguments, we affirm the 70-year sentence.
Wednesday, January 16, 2013
How do puppy rapists get treated in prison?It is often reported that child rapists are often treated as pariahs even among the most hardened criminal is prison. Consequently, this stunning local sentencing story prompted the (serious?) question in the title of this post. The article — which has an ending that led me to double-check it wasn't from The Onion — is headlined "N.Y. super who had sex with dog gets prison." Here are the details:
An apartment building superintendent who was caught on tape entering a unit and having sex with the tenant's puppy was sentenced to prison Tuesday.
Kujtim Nicaj, 44, was sentenced Tuesday by Westchester County Judge Barry Warhit to 6.5 years in prison and 7 years' probation after pleading guilty in October 2012 to burglary and sexual misconduct charges. "This case was unusual to say the least," Warhit said. "You exhibited cruelty to the animal. Your behavior was inexcusable."
Alan Kachalsky thought something in his apartment was amiss for months — blinds drawn that had not been, a window left open that he had left shut. But nothing ever went missing, and, fearing he may come off as paranoid, Kachalsky never went to the police. Instead, he set up three cameras and waited. Kachalsky shared his apartment at the Rye Colony Cooperative Apartments with a male Labrador puppy, Gunner, who, unbeknownst to Kachalsky, was the real target of the burglar.
The burglar, it turned out, wasn't there to steal anything, Kachalsky said Tuesday, but for something far more unimaginable. Kachalsky, an attorney, said it never occurred to him that someone was returning to have sex with his dog. Kachalsky turned over the video to police, who questioned and arrested Nicaj on Feb. 9, 2012, for sex acts against the 1-year-old dog committed the day before.
Nicaj, who wore a blue-striped gray sweater and blue jeans Tuesday in Westchester County Court, spoke little in court before his sentence, only telling Warhit that he had nothing to say. Steven Davidson, a lawyer for Nicaj, indicated after the proceedings that he might appeal the sentence, calling it unfair. "We'll do everything we can to protect his interests," Davidson said, adding that Nicaj was doing well under the circumstances, "other than what his family is going through."...
Nicaj, a 15-year resident of Rye, worked at the apartment complex for six years before his arrest, and Kachalsky said that the super seemed like a normal guy until one day, a few weeks before Kachalsky had set up the cameras, when the two had an odd run-in outside Kachalsky's apartment. "He said he had stopped by to check the gas," Kachalsky said, even though the gas had been on for some time.
Finally, Kachalsky set up three cameras, which provided indisputable evidence — "a naked man, in your apartment, having sex with your dog," Kachalsky said. "I was wondering why someone would keep coming in here," Kachalsky said. "I never noticed anything to make me think."
A subsequent examination of Gunner by a veterinarian revealed no permanent physical damage, Kachalsky said, and the vet even expressed surprise that the soon-to-be 2-year-old pup could still interact normally with men. The dog had always eagerly greeted visitors at the door, Kachalsky said, and still does, but on the video, with Nicaj, Gunner was abnormally passive. "Gunner just sat on the couch," Kachalsky said. "He did not get up."
Now, Kachalsky said, Gunner is mostly back to his old self. He turns 2 years old Jan. 25. "Anytime anyone comes in, he's all over 'em," Kachalsky said. "He's a terrific dog."
Given the apparent happy ending for the victims of this crime, I am not sure whether to encourage off-color jokes about this case or to engage in serious analysis of the prosecution of this peculiar puppy rapist. Thus, I pose this dilemma to readers:
should we ponder, rigorously or comically, whether and how the victim dog's tender age impacted the seemingly severe sentencing outcome?
should we worry, genuinely or jokingly, whether there are other puppy victims of this defendant who lacked the courage (and ability) to speak up about their abuse?
should we question, meaningfully or mirthfully, what the human victim here has now done with the contraband puppy porn than he inadvertently produced?
should we wonder, seriously or facetiously, whether upon release from prison the offender will be barred from going within 1000 feet of a pet store without prior approval of his probation officer?
Friday, January 11, 2013
Lots of new and notable for criminal justice fans in latest SCOTUS cert grants
This time of year, working late on a Friday can sometimes get rewarded with Supreme Court news after its usual Friday conferences: this week brings a Friday afternoon SCOTUS order list with six new cert grants. And, as Lyle Denniston detailed in this new post at SCOTUSblog, half of the grants include cases with notable criminal justice concerns:
The Supreme Court agreed on Friday to decide a major case on the right to remain silent — a case testing whether that right exists for an individual who has not been arrested but is interviewed by police, and was not given Miranda warnings, when that silence was used to help prove guilt at a trial. That case — Salinas v. Texas (docket 12-246) — was one of six new cases accepted for review. (The order list is here.)...
Here, in brief, are the other new cases and the issues at stake [from the criminal justice part of the SCOTUS world]:...
** Sekhar v. United States (12-357) — whether the federal anti-extortion act applies to a private individual’s use of a threat in order to get a government authority to withdraw a recommendation that would be adverse to that private individual’s interest in a pension fund. The issue is whether such a recommendation qualifies as “property” under the Hobbs Act, which makes it a crime to obtain property by threats.
** United States v. Kebodeaux (12-418) — Congress’s authority in 2006 to make it a federal crime for an individual convicted years before of a sex crime to fail to register, after the individual had long since completed a sentence.
Based on this helpful summary, it looks like the new sex offender case, US v. Kebodeaux, should be of greatest interest to sentencing fans. But all criminal cases on the SCOTUS docket, of course, can end up having a sentencing spin or impact.
Tuesday, January 08, 2013
Intriguing New Yorker article on child porn, sex offenders and civil commitment
The latest New Yorker issue has this interesting article headlined "The Science of Sex Abuse: Is it right to imprison people for heinous crimes they have not yet committed?". The lengthy article, which rewards taking to time to read it, give particular attention to one particular sex offender's experience with child pornography and federal civil commitment procedures. Here is an excerpt:
John pleaded guilty to possessing child pornography and to using the Internet to persuade a minor to have sex, and was sentenced to fifty-three months in federal prison — a relatively light sentence by today’s standards. In the past fifteen years, sentences for possession or distribution of child pornography — a federal crime, since images cross state lines — have increased in length by more than five hundred per cent. The average sentence is now a hundred and nineteen months, which is about the same as the average punishment for a physical sex crime.
Child pornography didn’t become a priority for federal law enforcement until the mid-nineties, when the Internet, offering a fun-house reflection of the spectrum of human sexuality, exposed a previously invisible population of pedophiles. Chat rooms have spawned an underground subculture in which social status is based on comprehensive libraries of images. Many users consider themselves “collectors,” trading pictures until they assemble sets that feature certain children, stars on the Internet, being sexually abused over time.
In a study of child pornography, the historian Philip Jenkins, of Penn State, found that chat rooms foster a kind of “bandit culture.” Self-described “Loli fans” see themselves as part of a subversive fraternity, unified by the pursuit of forbidden pleasures. There is a hierarchy of users: newbies, lurkers, traders, and, at the top, the pornographers themselves—“kings of the rooms,” as John told me. He said that the most sought-after images were new and made in America, and showed interracial couplings. The more taboos broken, the better. Members reinforced one another’s desires, engaging in communal rationalization. “We’d pull at evidence from the dawn of photography to prove that child sexuality was once acceptable,” John said. “Then we could say, ‘See, it’s society — not me!’ ”
Saturday, January 05, 2013
District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversalWhile I was traveling to New Orleans yesterday, back in my hometown a federal district court judge continued to make news in his second effort at sentencing a elderly federal defendant in a child pornography downloading case. This local story, headlined "Judge blasts sentencing guidelines: Man's original punishment tossed on appeal," provides the notable details:
A federal judge in Columbus criticized sentencing guidelines for child-pornography offenses yesterday as he imposed a stricter sentence on a Mount Vernon man whose original sentence was rejected by an appeals court.
U.S. District Judge James L. Graham said he “continues to have significant concerns about the helpfulness of those guidelines.” He made his comments during a resentencing hearing for Richard Bistline, 70, who pleaded guilty in April 2009 to one count of possessing child pornography. Federal sentencing guidelines recommended a sentence of 63 to 78 months.
Graham sentenced Bistline in January 2010 to one day in prison and 10 years of supervised probation. Federal prosecutors appealed the sentence, which the 6th U.S. District Court of Appeals overturned in January 2012, saying it “does not remotely meet the criteria that Congress laid out” for criminal sentencing.
Graham imposed the same sentence yesterday but ruled that Bistline must be confined to his Knox County home for the first three years of probation. He credited Bistline with the one day he served in prison, three years served on probation and nine months of home confinement that he served while awaiting his original sentence.
Assistant U.S. Attorney Deborah Solove had requested a five-year prison sentence, followed by five years of probation. She objected to the new sentence, saying it was “not reasonable.”
The judge said he was guided by appeals-court rulings that upheld sentences in similar child-pornography cases that included one day of prison and at least one year of home confinement. He cited statistics from the Federal Bureau of Prisons showing that federal judges across the country impose sentences below those recommended in the sentencing guidelines in more than half of child-pornography cases....
Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer uncovered 305 images and 56 videos of children posing naked or involved in sex acts with adults....
In the three years since his conviction, Bistline has complied with the terms of probation, successfully completed a one-year sex-offender treatment program, had no access to computers and understands the harm caused to the victims of child pornography, Graham said. Defense attorney Jonathan Tyack told the judge that the past three years “have shown that (Bistline) was worthy of your original sentence.”
Graham also said he was influenced by concerns about Bistline’s age and deteriorating health. According to medical records presented to the court, Bistline has had two strokes and suffered a heart attack a year ago. He also cares for his wife, who has cancer. Sending him to prison for five years “would be a life sentence, or more accurately a death sentence,” the judge said.
It will be very interesting to see if federal prosecutors seek to appeal this sentencing yet again to the Sixth Circuit. If they do, I would set the very early "betting line" on reversal at 50/50: some judges on the Sixth Circuit surely will be troubled that Judge Graham imposed nearly the same sentence even after his first sentence was reversed as unreasonable; but some judges may be moved by the additional reasons Judge Graham gave upon resentencing for not changing the sentence dramatically.
Prior related post:
Thursday, December 20, 2012
Three decades and huge (record?) restitution sentence in federal child porn case from TexasA helpful reader alerted me to what seems like a record-setting sentence handed down yesterday in a notable federal child porn prosecution out of Texas. This local article about the sentencing provides the details:
Misty, a victim of child abuse that began when she was 4 years old, wrote that there is another “little me” being seen on the Internet by child pornography abusers. Prosecutor V. LaTawn Warsaw read the young woman’s victim impact statement during the sentencing of Robert Hedrick, 61, the former president of Pan American Airways, who was convicted in May of five counts relating to child pornography.
U.S. District Judge Andrew S. Hanen sentenced Hedrick to 30 years in prison and ordered him to pay more than $5 million in restitution to known victims of child pornography whose images of abuse were found on Hedrick’s computer....
The government had asked for a 90-year sentence, but Hanen said because of Hedrick’s age a 30-year sentence was appropriate....
Investigators identified 99 known series of child pornography, along with 549 known images of child victims on Hedrick’s computer — just a fraction of the more than 2,400 images and 18 videos of child pornography it held. Many of the children in the images are unidentified, Homeland Security Investigations Agent Joseph Baker testified....
Hedrick maintained his innocence. “I can’t ask the court for anything. I was framed. I didn’t do what I was charged and convicted of,” he said, adding that he can’t say he is sorry or show remorse for something he didn’t do. Hedrick plans to appeal....
During the trial, however, evidence showed that Hedrick shared 136 images of adult and child pornography with detectives who were posing as 13- and 14-year-old girls. According to testimony during the trial, Hedrick contacted the undercover investigators in Louisiana and Wisconsin through Yahoo instant messenger and email more than 20 times.
He also was convicted of asking the agents to provide him with images of themselves in sexually explicit sex acts. The government introduced a web cam video of Hedrick masturbating for an undercover detective who identified herself as a 14-year-old girl from Louisiana....
Here is a breakdown of the victims to whom Robert L. Hedrick was ordered to pay more than $5 million in restitution....
- $3,388,417 to the victim of the Misty series;
- $1,145,300 to the victim of the Jan-Feb series;
- $803,924 to the victim of the Vicky series;
- $68,821 to the victim of the Cindy series.
Much can be said, of course, about the imposition of 30 years' in federal prison for a man in his 60s for what he did on the internet. (Recall that now-infamous child molester Jerry Sandusky got a state sentence of 30-60 years.) I find even more noteworthy that federal prosecutors could, with a straight face and as officers of the court, assert in this sentencing proceeding that they believed that only a 90-year federal prison term(!) was "sufficient but not greater than necessary" to serve the purposes of punishment set forth by Congress in 18 USC 3553(a).
In addition, the restitution amount imposed here is higher than I can recall seeing in any other child pornography case and thus may set a record for this kind of prosecution. Moreover, unlike in many other child porn downloading cases, it seems possible that this defendant could pay some or perhaps all of this huge restitution amount. This reality not only raises the stakes for this defendant's planned appeal, but also potentially impacts whether and how the victims in this case will want or need to seek additional restitution awards from other child porn downloaders in future federal prosecutions.
Monday, December 10, 2012
Distinguishing Padilla, Pennsylvania Supreme Court finds no Sixth Amendment problem with lack of pension plea adviceAn interesting case involving a plea that led to the loss of a pension for a school teacher has now led to an interesting set of opinions from the Pennsylvania Supreme Court in Commonwealth v. Abraham, No. 36 WAP 2010 (Pa. Dec. 10, 2012) (links to majority opinion, concurrence one and two, and dissent). Here is the set up via the start of the majority opinion:
Joseph Abraham was a high school teacher in the Pittsburgh public school system. In 2008, one of his students alleged he offered her $300 to have sex with him and touched her buttocks; she further stated he gave her one of his business cards and wrote his private cell phone number on it. After these allegations surfaced, appellee, who was 67 years old, retired from teaching and began receiving pension payments of $1,500 per month. Shortly after appellee retired, he was charged for the above incident. Pursuant to a negotiated agreement, appellee pled guilty to corruption of a minor and indecent assault of a person less than 16 years of age. He was sentenced to probation; no direct appeal was filed.
Because the crime of indecent assault of a person less than 16 years of age is one of the enumerated offenses in the Public Employee Pension Forfeiture Act (PEPFA), 43 P.S. §§ 1311-1315, appellee forfeited his pension when he pled guilty to this charge. He filed a motion to withdraw his plea nunc pro tunc, alleging he was not informed of his right to seek withdrawal of his plea or of the possible sentences he faced. The trial court denied the motion.
Appellee filed a timely PCRA petition alleging plea counsel was ineffective for failing to inform him he would forfeit his pension upon pleading guilty. The PCRA court, after giving the required notice pursuant to Pa.R.Crim.P. 907(1), dismissed the petition without a hearing. In its Pa.R.A.P. 1925(a) opinion, the PCRA court stated the loss of appellee’s pension was an issue collateral to the plea; thus, under Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 1989), plea counsel’s failure to explain this consequence to appellee was not relevant to whether his plea was knowing and voluntary. Accordingly, the PCRA court held counsel was not ineffective.
On appeal, the Superior Court reversed, holding a recent United States Supreme Court decision, Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), abrogated Frometa, which held deportation was collateral consequence of a guilty plea and therefore did not need to be explained to the defendant. The Superior Court noted Padilla, which also dealt with deportation following entry of a guilty plea, held such consequences were so intimately connected with the criminal process that a direct versus collateral consequences analysis was ill suited to evaluate an ineffectiveness claim arising in this context. Commonwealth v. Abraham, 996 A.2d 1090, 1092 (Pa. Super. 2010)....
We granted the Commonwealth’s Petition for Allowance of Appeal to determine:
(1) Whether, in light of Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473 (2010), the distinction in Pennsylvania between direct and collateral consequences to define the scope of constitutionally “reasonable and professional assistance” required under Strickland v. Washington, 486 U.S. 668 (1984) is appropriate?
(2) If so, whether the forfeiture of a pension that stems from a public school teacher’s negotiated plea to crimes committed in the scope of his employment is a collateral consequence of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise?
The various opinions reach various in Abraham reach various conclusions on these questions, but here is the heart of the analysis of the majority:
Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation...
Our assessment of the above factors leads us to conclude PEPFA’s pension forfeiture provisions are not so punitive in force or effect as to negate the legislative intent that it be a civil, remedial provision. PEPFA is not punitive, and is thus a collateral consequence of appellee’s guilty plea.
Because counsel cannot be deemed ineffective for failing to advise a defendant regarding the collateral consequences of a plea, appellee’s ineffectiveness claim fails. Therefore, we reverse the order of the Superior Court granting appellee a PCRA hearing on the issue of prejudice, and we remand for reinstatement of the PCRA court’s order denying appellee relief.
Friday, December 07, 2012
Just who decides whether serious child porn case is in state or federal system?I kind of know the answer to the question in the title of this post (as explained below), but this is still the inquisitive reaction I often have after reading about a state child porn sentencing decision like this one reported today out of Pennsylvania:
Calling him a danger to the community who showed no remorse, a Northampton County judge handed down a state prison sentence Friday to a Nazareth man who had child pornography and sent inappropriate text messages to a 12-year-old girl in which he said he wanted to make her feel "warm and cozy."
Christopher M. Rothrock, 46, was sentenced to 21 months to 7 years in prison by county Judge Stephen Baratta. In handing down his sentence, Baratta said he would be "afraid for the community" unless Rothrock served time in state prison.
Rothrock was reported to police in 2011 by the girl's parents. Police said they found 25 texts from Rothrock to the girl, saying he wanted to massage her and asking for photos of her exposed stomach, court records state. Police said they also found thousands of child pornography images on Rothrock's computer.
In September, Rothrock pleaded guilty to five counts of possessing child pornography and one count of criminal solicitation for the text messages he sent to the girl. Northampton County Assistant District Attorney Patricia Broscius testified Friday that the victim and her mother are "extremely hurt, extremely angry" by Rothrock's actions. "The bottom line is he's dangerous and he needs intensive treatment," Broscius said. "He had no remorse, no insight, no empathy for what happened."
In a pre-sentence report read aloud Friday by Baratta, Rothrock said he had been viewing child pornography for 20 years and didn't believe it was a crime unless he was selling or distributing the images. He also told authorities he didn't believe pornographic images of children over the age 10 were considered child pornography. Baratta noted that Rothrock stopped going to sex offender treatments after Rothrock said he could no longer afford to pay for therapy.
Though not perfectly clear from this story, it appears that the defendant here (1) may have already had a conviction of some sort that got him into sex offender treatment, and (2) had sent numerous sexual texts to a 12-year-old, and (3) had a massive and long-standing collection of child pornography. Add up these facts in the federal system, and the defendant here would likely be looking at decades in the federal prison system. But in state court this guy, deemed by the sentencing judge as dangerous and with no remorse, could be free in less than two years.
My understanding is that state and federal investigative authorities and prosecutors are ultimately the persons who decide whether and when a case will be brought in federal or state court when both jurisdictions have authority. But, as highlighted by this story (and so many others in this area), the sentencing consequences of child porn crimes will often depend a lot more on this (hidden and unreviewable) state/federal prosecutorial decision than any other facts or factors.
Thursday, December 06, 2012
Fourth Circuit rejects feds' effort to commit "sexually dangerous person" under AWAThe Fourth Circuit has a notable sex offender civil committment ruling today in US v. Caporale, No. 12-6832 (4th Cir. Dec. 6, 2012) (available here). Here is how it gets started:
The government appeals the judgment of the district court directing that Patrick Caporale be freed from the custody of the Bureau of Prisons and granted supervised release. Caporale finished serving his prison sentence for child molestation in 2008, but he has remained incarcerated while the government seeks to have him declared a "sexually dangerous person" pursuant to the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act"), Pub. L. No. 109-248, 120 Stat. 587, as specifically set forth in 18 U.S.C. § 4248.
A sexually dangerous person under the Walsh Act means one "who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." 18 U.S.C. § 4247(a)(5). A person is sexually dangerous to others insofar as he or she "suffers from a serious mental illness, abnormality, or disorder," and, as a result, "would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(6). The parties have never disputed that, as evidenced by his several convictions, discussed infra, Caporale satisfies the first, prior-conduct element of § 4247(a)(5) by having engaged in child molestation.
Following an evidentiary hearing whose scope was thereby limited to the second element of § 4247(a)(5), the district court ruled that, as a matter of law, the government had not proved that Caporale suffers from a serious mental illness, abnormality, or disorder. The court perceived in the alternative that even if Caporale were so afflicted, his commitment was not required because the government had also failed to sufficiently show that Caporale will experience serious difficulty in refraining from sexually violent conduct or child molestation if released.
We conclude that, contrary to the district court’s legal determination and as established by the evidence, Caporale indeed suffers from a qualifying mental impairment. We nevertheless affirm the judgment below, discerning no clear error in the court’s alternative rationale that the government fell short of carrying its burden to demonstrate a relative likelihood that Caporale will reoffend.
Sunday, December 02, 2012
State court strikes down Orange County prohibition on sex offender visits to parks and beachesAs reported in this new Los Angeles Times article, a "controversial Orange County sex offender law that bans some people from visiting parks and beaches has been ruled illegal by a panel of Superior Court judges, who have asked the state appeals court to now review the get-tough rule." Here is more about the ruling and its impact:
The panel reached the decision after overturning the conviction of a registered sex offender who was ordered to serve 100 days in jail after he was caught attending a Cinco de Mayo party at Mile Square Park in Fountain Valley.
The Orange County district attorney’s office, which has pushed cities across the county to adopt the sex offender ban, said it would continue to enforce the law. “I believe that protecting children from sex offenders is one of the highest priorities in law enforcement,” Dist. Atty. Tony Rackauckas said in a statement.
But the ruling has drawn immediate fallout. Sheriff Sandra Hutchens has asked her department to stop enforcing the law, and Lake Forest, one of the many cities that adopted the rule, is considering repealing its ordinance.
Nearly half the 34 cities in Orange County have adopted the law, and of those, almost half are now being sued. To persuade cities to adopt the law, the district attorney's office has taken a forceful approach — sending ranking prosecutors and administrators to City Council meetings to talk with municipal leaders.
Orange County appears to be the lone county in the state to adopt a law banning all registered sex offenders — even those who haven't been convicted of a crime against children — from going to a county beach or spending time in a county park. And while registered sex offenders can apply for an exemption for work or family gatherings, few have been approved.
In its Nov. 15 decision, the Appellate Division of Orange County Superior Court ruled that the county ordinance is unlawful because the state Legislature is the only body that should be enacting restrictions on sex offenders. “Such a patchwork of local ordinances poses tremendous risk to the offender who may not be aware of each regulation in each city, or indeed even know the precise location of city borders,” the decision read.
Tuesday, November 27, 2012
Congress passes bill to double statutory maximum for child porn possession
Thanks to a helpful reader, I just learned that late yesterday Congress passed a bill to increase the statutory maximum for child porn possession offenses from 10 years to 20 years. Especially because child porn receipt already has a stat max of 20 years and because federal prosecutors often can (and often do) charge multiple counts of possession to expose a defendant to more than 10 years imprisonment under current law, I was not aware that anyone directly involved in federal child porn cases thought this stat max needed to be raised. But, as this local report on the legislation highlights, the increase was part of a broader effort to give authorities even more weapons to go after child porn offenders:
A bill designed to protect children from sexual predators has cleared Congress and is headed to the White House to be signed into law. “With President Obama’s signature, this law will help to rescue the thousands of children suffering from unthinkable abuse,” said Congresswoman Debbie Wasserman Schultz, a Democrat from Weston, who sponsored the bill along with House Judiciary Chairman Lamar Smith, a Texas Republican.
The bill’s passage is one sign that Congress can still get something done, especially when leaders from each party push a non-controversial measure. The bill increases the maximum penalty from 10 years in prison to 20 years for child pornography offenses that involve pre-pubescent children, or those under age 12.
The bill allows a federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated, and it imposes criminal penalties for violating a protective order. It gives U.S. Marshals limited subpoena authority to locate and apprehend fugitive sex offenders. The Child Protection Act also reauthorizes for five years the Internet Crimes Against Children Task Forces, a national network of investigators who have arrested more than 30,000 individuals involved in child exploitation since 1998, Wasserman Schultz’ office reported.
The Senate approved the legislation on Monday night by unanimous consent. The House passed it by voice vote in August. “This bill ensures that the spread of child pornography online is addressed aggressively and quickly,” Wasserman Schultz said, “and ensures that investigators have every available resource to track down predators and protect our children.”
Wednesday, November 14, 2012
Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issuesThe Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images. Here is the final paragraph from the lengthy unanimous panel opinion:
To summarize: The defendant’s prison sentence is affirmed. The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases. The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images. The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.
Wednesday, November 07, 2012
California voters approve new sex offender law, parts of which get swiftly blocked by federal judgeI have not closely followed the particulars of Proposition 35 in California, a human trafficking ballot initiative which generated limited debate or controversy before election day. But, as reported in this new piece from Wired, the initiative received overwhleming support yesterday and today was partially block by a federal judge. Here are the details:
Immediately following the passage of a California proposition that would dramatically curtail the online, First Amendment rights of registered sex offenders, two civil rights groups filed a lawsuit to block parts of the overwhelmingly approved measure.
Proposition 35, which passed with 81 percent of the vote Tuesday, would require that anyone who is a registered sex offender — including people with misdemeanor offenses such as indecent exposure and whose offenses were not related to activity on the internet — would have to turn over to law enforcement a list of all identifiers they use online as well as a list of service providers they use.
The Californians Against Sexual Exploitation Act would force sex offenders to fork over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites or at online forums and in internet chat rooms.
The American Civil Liberties Union and the Electronic Frontier Foundation, which filed their suit (.pdf) on behalf of two registered sex offenders, say that although the measure is vaguely worded, in practice it likely means that registered sex offenders would have to provide user and screen names that they use for participation in online political discussion groups, forums about medical conditions, and even the comment sections of online newspapers and blogs....
The lawsuit, filed in San Francisco federal court, is demanding that a judge immediately block the measure’s internet-reporting provisions.... Michael Risher, an ACLU attorney, said Californians should be concerned that even though the bill only affects registered sex offenders now, the law creates a slippery slope for the same requirements to be applied to others.
He points, for example, to a California DNA-collection law that has expanded dramatically beyond the people it first targeted. Initially, the law required only those convicted of sex offenses and serious felonies to provide authorities with a DNA sample to be included in a state and federal database. But in 2004, this expanded to anyone convicted of a felony, and in 2009, to anyone simply arrested for a felony....
The measure would currently affect some 73,000 sex offenders registered in California, but the law also requires those convicted of human trafficking to register as sex offenders, thus widening the pool of people affected.
UPDATE: Citing First Amendment concerns, U.S. District Judge Thelton Henderson in San Francisco agreed with the plaintiffs, and late Wednesday tentatively blocked enforcement of the measure (.pdf) pending further litigation.
Wednesday, October 31, 2012
Split federal court ruling on local Halloween sex offender ordinance in CaliforniaAs reported in this local article, headlined "Judge temporarily blocks part of Simi Valley Halloween sex offender law," a notable constitutional lawsuit resulted in a split outcome in California federal court. Here are the details:
A federal judge Monday temporarily blocked enforcement of a key provision of Simi Valley's new Halloween sex offender law but left the rest of the ordinance intact. U.S. District Judge Percy Anderson's ruling came days before the holiday on Wednesday.
Anderson temporarily blocked the city from requiring its several dozen convicted child sex offenders listed on the Megan's Law website to post signs on their front doors on Halloween saying: "No candy or treats at this residence."
But Anderson let stand requirements that the offenders refrain from opening their doors to trick-or-treating children and decorating the outside of their homes or front lawns with Halloween ornaments. The convicts also must turn off outdoor lighting on their properties from 5 p.m. to midnight Wednesday.
Attorney Janice Bellucci, who last month filed a lawsuit saying the law was unconstitutional, said she was pleased with the ruling even though she had sought to have enforcement of the entire ordinance temporarily blocked pending the outcome of the lawsuit.
Simi Valley City Attorney Marjorie Baxter said the ruling was "a big victory on the majority of the ordinance." The Simi Valley City Council on Sept. 10 enacted the law — the only one of its kind in Ventura County — to try to prevent sex offenders from having contact with trick-or-treating children. It was championed by Mayor Bob Huber, a lawyer who is seeking re-election Nov. 6.
Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit Sept. 28 on behalf of five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. It says the law violates the First and 14th Amendments of the Constitution because it "suppresses and unduly chills protected speech and expression."
Private attorneys representing the city in the lawsuit disagree. "Convicted child molesters have no constitutionally protected right to hand out candy at Halloween," they said in court papers. "Children, on the other hand, do have a constitutionally protected right to be safe from sexual assault."
I find intriguing the city's assertion that children have a "constitutionally protected right to be safe from sexual assault," in part because taking that claim seriously could subject the city to liability if and whenever the city failed to keep children safe from sexual assault in other settings.
Recent related posts:
- Sex offenders claim First Amendment violated by local Halloween ordinance targeting them
- More on sex offenders' First Amendment challenge to local halloween challenge in California
Saturday, October 27, 2012
Is justice delayed really justice denied before federal sentencing for child porn professor?The question in the title of this post is prompted by this local federal sentencing story, which is headlined "Vanderbilt professor's sentencing in child porn case delayed again: Two years after his guilty plea, case continued for an eighth time." Here are the details of this intriguing sentencing story:
A Vanderbilt University sociology professor slated to be sentenced Friday for a child pornography conviction had his case continued for an eighth time while he tried to receive a penalty below the federal sentencing guidelines. James Lang, 68, is on leave from Vanderbilt, where he has held a position since 1974. He was charged in 2008 and entered a guilty plea on Sept. 17, 2010.
The government answered his motion for reduced sentencing with a 15-page response in opposition to a variance from sentencing guidelines. The response was received by Lang’s attorney Thursday afternoon and he said he need more time to review it. U.S. District Court Chief Judge William J. Haynes Jr. agreed but did not reschedule the sentencing.
A previous continuance was filed to accommodate Lang with moving plans, another because of a death in his attorney’s family, and others for preparation purposes. The initial sentencing date was set for Dec. 17, 2010.
Lang admitted to looking at child pornography in his office the morning he was interviewed by police in Garland Hall at Vanderbilt, according to the criminal complaint. He also said that he saw no problem with viewing explicit images of children “enjoying themselves” and that he had been viewing such images for many years.
After he and his wife took the computer to have a virus and spyware inspection, thumbnail images of what appeared to be children under the age of 8 caused the owner of a computer repair service to report Lang to local police, according to court documents. More than 5 gigabytes of data with more than 7,000 pornographic images, including “children in sexual positions,” were initially found on Lang’s computer, which was Vanderbilt property. Lang pleaded guilty to possessing 233 images and 13 videos of child pornography.
Several letters of support from Vanderbilt professors and other colleagues were submitted to the court, and he entered a 12-step program while awaiting sentencing. Among his many sociologically driven projects, Lang served as a Vista Volunteer at Southside Settlement House in Columbus, Ohio, and worked as a project director for Crossroads Africa in Gambia, according to the Vanderbilt website.
Lang is under home detention as part of his conditions of release and may face up to 10 years in prison upon sentencing.
As a substantive matter, this case is yet another interesting and challenging child porn downloading sentencing in which lots of different arguments could be presented to make lots of different claims about what sentence here would be "sufficient but not greater than necessary" to achieve congressional sentencing purposes set forth in 3553(a)(2). But as the question in the title of this post spotlights, this case is also intriguing (and controversial?) because of how much time has elapsed between charges, conviction and sentencing.
I know initial federal sentencing dates often get delayed and that a few sentencing continuances are not uncommon. But I cannot recall hearing of another case in which sentencing has been delayed eight times (especially when a defendant is free on bail during this extended period). In addition, because of the defendant's history and characteristics and post-charge behaviors, he may during this extended pre-sentencing period be uniquely able to build stronger arguments for a departure or variance based on his advancing age or his (declining?) health or his (now lengthy) post-offense rehabilitation and actions.
I would be especially interested in hearing from experienced federal practitioners about whether this case is really as unusual as it seems or if, in fact, this kind of lengthy pre-sentencing period is not that uncommon.
Tuesday, October 23, 2012
Ninth Circuit finds "fundamental right of to familial association" made special sex offender SR conditions "substantively unreasonable"A lengthy opinion from the Ninth Circuit today in US V. Wolf Child, No. 11-30241 (9th Cir. Oct. 23, 2012) (available here), should be of interest to anyone who has ever been concerning about the application of broad supervised release conditions. Here is how the panel opinion gets started:
Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.
In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer. On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child’s contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.
October 23, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack