Tuesday, October 08, 2019

"Offline: Challenging Internet and Social Media Bans for Individuals on Supervision for Sex Offenses"

The title of this post is the title of this new article authored by Jacob Hutt now available via SSRN.  Here is its abstract:

Tens of thousands of people across the United States are subject to bans on their Internet and social media access due to sex offense convictions.  This Article explains why, even for those on parole and probation, such bans are frequently over-broad, imposed on the wrong people, and are now ripe for challenge in light of the Supreme Court’s 8-0 decision in Packingham v. North Carolina

The first flaw with these bans is their mismatch between crime and condition.  They are imposed on individuals whose criminal records have no relation to online predatory activity or manipulation of minors.  The second flaw is their extreme over-breadth.  Rather than merely proscribing speech with minors or access to certain online forums, they cordon off the Internet itself, ostracizing offenders to an offline society.  While these flaws rendered Internet and social media bans constitutionally problematic before the Packingham decision, the Supreme Court’s imprimatur on free speech for individuals convicted of sex offenses could — and should — lead the way to future legal challenges of these bans.

October 8, 2019 in Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (1)

Wednesday, September 18, 2019

Without discussion of 3553(a) factors, Eleventh Circuit needs just one sentence to declare 120 years (LWOP) imprisonment for child porn offenses reasonable

Earlier this month in this post, I flagged the Sixth Circuit panel ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), which concluded that a month-long sentence was unreasonably short after an intricate multi-page analysis of § 3553(a) factors.  The detailed circuit analysis especially faulted the district court's consideration of personal factors and the failure "to address the risk of sentence disparities."  In my post about the Boucher ruling, I noted that I favor reviewing courts conducting robust and searching forms of reasonableness review, but I  lamented the fact that circuit courts often seem much more interested in seriously questioning 30-day sentences when federal prosecutors appeal than in questioning 30-year sentences when federal defendants appeal.  

Interestingly, today I was alerted to a new Eleventh Circuit panel ruling in which it is not a 30-year sentences, but actually a 120-year sentence(!), that gets short shrift in the reasonableness review process.  Specifically, in US v. Kirby, No. 18-11253 (11th Cir. Sept. 17, 2019) (available here), the defendant was convicted after trial of three counts of producing child pornography and two counts of possessing child porn.   As described by the Eleventh Circuit panel, the defendant had a large (but not enormous) number of child porn images and he created (but did not distribute) many images of his "thirteen-year-old stepdaughter, either captured by hidden cameras in bathrooms or taken while Kirby was assisting his stepdaughter with stretches due to a sports injury [and also had one] pornographic image of a friend of [his] stepdaughter."  This is serious criminal behavior, but the district court responded (based it seems on a maxed-out guideline range of life) by maxing out all the counts to the statutory maximum and running the terms consecutively to arrive at sentence of 1440 months (120 years) of imprisonment.

In addition to making a technical challenge to how the guideline range of life was used by the district court, the defendant here contended that his sentence was substantively unreasonable.  After discussing the technical issues for a number of pages, here is the full substance of the Kirby panel's response to the reasonableness claim:

As an initial matter, Kirby’s argument is largely predicated on the erroneous conclusion that the district court imposed an above-guidelines sentence.  Regardless, the sentence was not unreasonable.  Before imposing the longest sentence that it could, the district court thoroughly discussed Kirby’s particularly heinous conduct and direct participation in the creation of child pornography, his breach of public trust as a police officer, and his total failure to take responsibility for his actions.

Without seeing the full factual record or the parties' briefs, I am disinclined to assert that the substantive judgment of reasonableness here was obviously wrong.  But where is the circuit concern in this case for the district court's consideration of personal factors and the failure to address the risk of sentence disparities?   And what does strike me as obviously wrong is the obvious fact that there is such a contrast in the amount of attention and deliberation given to the reasonableness claims in cases like Boucher and Kirby.  As long as reviewing courts (and so many others) are so much more likely to worry so much more about undue leniency than about undue severity, over-incarceration will still define our criminal justice systems.

September 18, 2019 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, August 18, 2019

North Carolina Supreme Court holds mandatory lifetime GPS monitoring for some sex offenders violates Fourth Amendment

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.  Here is part of the start of the majority opinion (authored by Justice Earls) in this latest version of Grady:

The United States Supreme Court has determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders, which involves attaching an ankle monitor “to a person’s body, without consent, for the purpose of tracking that individual’s movements,” constitutes a search within the meaning of the Fourth Amendment.  Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). The Supreme Court remanded the case for an examination of “whether the State’s monitoring program is reasonable — when properly viewed as a search.” Id. at 1371....

In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional.  The Court of Appeals reversed, but only as to Mr. Grady individually.  We conclude that the Court of Appeals erroneously limited its holding to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies equally to anyone in Mr. Grady’s circumstances.  Cf. Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that state statutes mandating a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to a specific group, namely juveniles who did not commit homicide).

In North Carolina, “SBM’s enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime trackers.’ ” State v. Bowditch, 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010).  Mr. Grady is in the third of these categories in that he is subject to SBM for life and is unsupervised by the State through probation, parole, or post-release supervision.  Additionally, Mr. Grady is a “recidivist,” which makes lifetime SBM mandatory as to him without any individualized determination of the reasonableness of this search.  Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14- 208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are in the third Bowditch category and who are subject to mandatory lifetime SBM based solely on their status as a “recidivist,” we modify and affirm the opinion of the Court of Appeals.

And here is a paragraph from the start of the dissenting opinion authored by Justice Newby:

Using the remand as an opportunity to make a broad policy statement, the majority, though saying it addresses only one statutory classification, recidivist, applies an unbridled analysis which understates the crimes, overstates repeat sex offenders’ legitimate expectations of privacy, and minimizes the need to protect society from this limited class of dangerous sex offenders.  The majority’s sweeping opinion could be used to strike down every category of lifetime monitoring under the SBM statute.

August 18, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Wednesday, August 07, 2019

"A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines"

The title of this post is the title of this notable new article now available via SSRN and authored by Brent Evan Newton. Here is its abstract:

Except for the federal criminal penalties for crack cocaine offenses, no specific non-capital penalty structure has been more widely criticized than USSG § 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. §§ 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography.  Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012 made a compelling case for changing both the guideline and, to a lesser degree, the statutes.

The current sentencing guideline for non-production offenses is fundamentally broken, as evidenced by the fact that only 28.4 percent of defendants sentenced under section 2G2.2 receive within-range sentences and 69.1 percent of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program).  The vast majority of child pornography defendants receive downward variances from their guideline ranges based on sentencing judges’ subjective senses of what appropriate sentences should be.  Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist -- in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants.

Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission.  Therefore, I have set forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional authorization.  If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

August 7, 2019 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, July 28, 2019

"The Agony & the Ecstasy of #MeToo: The Hidden Costs of Reliance on Carceral Politics"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith now available via SSRN. Here is its abstract:

Many have considered the conversation sparked by #metoo as a necessary and overdue interrogation of not only the spectre of common sexual harms in American society, but also the inadequacy of traditional mechanisms of accountability.  Against this backdrop, smaller-scale flashpoints have erupted over perceived inadequacy of punishment, such as the successful campaign to recall California judge Aaron Persky from the bench over what many saw as leniency in the widely- publicized case of People v. Brock Turner.  This paper analyzes the complex relationship between #metoo and the carceral state.

In arguably the most punitive nation on the planet — particularly when considering the breadth and scope of public post-conviction registries — I argue that seeking to address broad and systemic failures of accountability by advocating for more severe punishment paradoxically undermines the larger goals of #metoo to the extent that those goals are concerned with effectively challenging systems that perpetuate sexual harms.  An approach that harmonizes efforts to prevent sexual harms and bring those who cause harm to account without endorsement of carceral politics is explored.

July 28, 2019 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (0)

Saturday, July 13, 2019

All the Jeffrey Epstein news that's fit to print

My various criminal justice news feeds are chock full of stories about the prosecution of Jeffrey Epstein and its echoes.  Perhaps unsurprisingly, the New York Times is giving plenty of ink to this story, and here are just some of the notable pieces from the last few days that should interest criminal justice justice fans:

A few prior related posts:

July 13, 2019 in Celebrity sentencings, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Monday, July 08, 2019

Some news and notes surrounding latest indictment of Jeffrey Epstein

The arrest and now (not-quite-second) federal prosecution of billionaire Jeffrey Epstein is all the buzz in the criminal justice world today, and this New York Post article provides some highlights on the indictment that was unsealed and how federal prosecutors are now approaching this matter:

Convicted pedophile Jeffrey Epstein “sexually exploited and abused” dozens of underage girls as young as 14 at his homes in New York and Florida in the early 2000s, Manhattan federal prosecutors alleged in an indictment unsealed Monday.  The billionaire financier was charged with sex trafficking and a related conspiracy count for allegedly creating “a vast network of underage victims” for him to exploit across multiple states from 2002 to 2005, the Manhattan federal court documents say.

Aided by three unidentified employees Epstein, 66, allegedly paid the girls hundreds of dollars in cash to come to his residences in Manhattan and Palm Beach to give him nude “massages” that would become “increasingly sexual in nature,” prosecutors allege.  “During the encounter, Epstein would escalate the nature and scope of physical contact with his victim to include, among other things, sex acts such as groping and direct and indirect contact with the victim’s genitals,” the indictment alleges....  Epstein “intentionally sought out” girls under 18 — and knew the girls were underage because some told him how old they were, they allege.

“The alleged behavior shocks the conscience and while the charged conduct is from a number of years ago, it is still profoundly important to the alleged victims,” Manhattan US Attorney Geoffrey Berman said at a news conference announcing the charges. “They deserve their day in court and we are proud to be standing up to them by bringing this indictment.”

The indictment shows the feds want to seize Epstein’s lavish townhouse at 9 E. 71st St. — a seven-story, 21,000-square-foot Upper East Side pad that is one of Manhattan’s largest townhouses and was allegedly one of the venues for his sick sexual pyramid scheme. Authorities “seized evidence including nude photographs what appear to be underage girls,” Berman said.

Epstein’s indictment follows a controversial deal he struck in 2008 with prosecutors in Palm Beach, Florida, after cutting a non-prosecution agreement with the Miami US Attorney’s Office, as detailed last year in an expose by the Miami Herald.  Epstein was facing up to life behind bars, but got a sentence of just 13 months.  The Miami US attorney at the time was Alex Acosta, who is now President Trump’s secretary of labor, and the Justice Department launched an investigation of that agreement in February following a request from Sen. Ben Sasse (R-Nebraska).

Berman said Epstein’s non-prosecution agreement “only binds the Southern District of Florida.”

“The Southern District of New York is not bound and is not a signatory,” he said.

Prosecutors will seek to have Epstein held without bail when he appears in court later Monday, Berman said. Berman called Epstein a “significant flight risk” due to his “enormous wealth” and the fact that the charges against him carry a maximum 45 years in prison, which Berman called “basically a life sentence” for someone of Epstein’s age. Berman also noted that Epstein owns two private plans and lives “much of the year abroad.”

Epstein was arrested around 5:30 p.m. on Saturday at Teterboro Airport in New Jersey, where he arrived in a private plane from Paris, officials said.

The full 14-page indictment in this high-profile matter is available at this link.

A few prior related posts:

UPDATE: This new Atlantic article by Ken White, headlined "The Jeffrey Epstein Case Is Like Nothing I’ve Seen Before: Great wealth insulates people from consequences, but not always, absolutely, or forever," is the best read on this case that I have seen of late.

July 8, 2019 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (4)

Wednesday, July 03, 2019

Spotlighting challenges at intersection of trying kids as adults and sexual offenses

The decision to try a juvenile offender as an adult often serves as a kind of sentencing decision. That reality, plus the always wrought policy and politics surrounding sex offenses, leads me to be interested in reactions to this new New York Times piece headlined "Teenager Accused of Rape Deserves Leniency Because He’s From a ‘Good Family,’ Judge Says." Here are excerpts from the lengthy front-page story:

The 16-year-old girl was visibly intoxicated, her speech slurred, when a drunk 16-year-old boy sexually assaulted her in a dark basement during an alcohol-fueled pajama party in New Jersey, prosecutors said.

The boy filmed himself penetrating her from behind, her torso exposed, her head hanging down, prosecutors said. He later shared the cellphone video among friends, investigators said, and sent a text that said, “When your first time having sex was rape.”

But a family court judge said it wasn’t rape. Instead, he wondered aloud if it was sexual assault, defining rape as something reserved for an attack at gunpoint by strangers.  He also said the young man came from a good family, attended an excellent school, had terrific grades and was an Eagle scout.  Prosecutors, the judge said, should have explained to the girl and her family that pressing charges would destroy the boy’s life.

So he denied prosecutors’ motion to try the 16-year-old as an adult. “He is clearly a candidate for not just college but probably for a good college,” Judge James Troiano of Superior Court said last year in a two-hour decision while sitting in Monmouth County.

Now the judge has been sharply rebuked by an appeals court in a scathing 14-page ruling that warned the judge against showing bias toward privileged teenagers.  In doing so, the appeals court cleared the way for the case to be moved from family court to a grand jury, where the teenager, identified only as G.M.C. in court documents, will be treated as an adult. New Jersey law allows juveniles as young as 15 to be tried as adults when accused of serious crimes, and the grand jury will weigh whether to indict him on the sexual assault accusation.

In recent years, judges across the country have come under fire for the way they have handled sexual abuse cases. One of the most notorious was in 2016, when a judge in California sentenced a Stanford University student to six months in jail after he was found guilty of sexually assaulting an unconscious woman.  After an intense public backlash, California voters recalled the judge.

Judge Troiano, who is roughly 70, was one of two family court judges whom appeals courts in New Jersey have criticized in recent weeks over relatively similar issues.

In the other case, the appellate division reversed another judge’s decision not to try a 16-year-old boy as an adult after he was accused of sexually assaulting a 12-year-old girl in 2017.  The second family court judge, Marcia Silva, sitting in Middlesex County, denied a motion to try the teenager as an adult and said that “beyond losing her virginity, the State did not claim that the victim suffered any further injuries, either physical, mental or emotional.”

The appellate judges also upbraided Judge Silva, overturning her decision and noting that the teenager could be culpable because the 12-year-old was not old enough to provide consent in the first place.

The judge in Monmouth County, Mr. Troiano, was scolded by the appellate court, according to the panel’s decision.  “That the juvenile came from a good family and had good test scores we assume would not condemn the juveniles who do not come from good families and do not have good test scores from withstanding waiver application,” the panel wrote in its decision.

Family court cases are typically closed to the public, but the judges’ comments surfaced in June when the appeals court decisions were made public, joining a series of contentious sexual assault cases that have ignited outrage over a legal system that advocates for victims say is warped by bias and privilege.

In the first case, heard by Judge Troiano, it is unclear from court documents when and specifically where in New Jersey the incident involving the two 16-year-olds took place. But prosecutors said it occurred during a party packed with 30 other teenagers.  The case was highlighted by a New Jersey radio station, 101.5....

In an interview, Christopher J. Gramiccioni, the county prosecutor said, “This is conduct that should be punished in adult court.” “We subscribe to the idea that the juvenile system is supposed to be rehabilitative,” he said.  “But when you’re dealing with charges as serious as these, it’s a whole different ball of wax.”...

Mr. Gramiccioni said New Jersey has a progressive juvenile system: Juvenile cases are not shown to juries, juvenile records are kept from public view and sentences are typically more lenient than when a person is tried as an adult.  A recent law made it illegal to try defendants younger than 15 as adults.

July 3, 2019 in Offender Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, June 16, 2019

Alaska Supreme Court finds due process flaw in state's sex offender registry scheme

Last Friday, the Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375  (Alaska June 14, 2019) (available here) decided that part of its state’s Sexual Offender Registration Act violates due process.  Here is how the majority opinion starts and concludes:

&This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second iswhetherASORAviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness....

The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The former prevent retroactive application of the act under the ex post facto clause of the Alaska Constitution,but they do not preclude imposing registration duties on out-of-state offenders who are present in the state.

The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.

The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

June 16, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, June 11, 2019

Alabama enacts chemical castration mandate for sex offenders with child victims

As reported in this local article, Alabama "Gov. Kay Ivey [yesterday] signed into law a bill to require sex offenders whose victims are younger than 13 to undergo 'chemical castration treatment' as a condition of parole." Here are the details:

The treatment consists of taking a medication to suppress or block the production of testosterone.

The bill was sponsored by Rep. Steve Hurst, R-Munford, and passed on May 30, the next-to-last day of the legislative session. Hurst had sponsored similar bills for more than a decade and said his intention has always been to stop sexual abuse of children.

“I’m very serious,” Hurst said.  “Not only did I want it to pass, I want to follow it on through to the future where we can try to improve it.  One of the ultimate goals that I want to do is for us to track it and to make sure what medication works for what individuals.”

Hurst said he’s heard from many victims of sexual abuse supporting the effort.  “It’s amazing how many phone calls and how many emails I’ve gotten,” Hurst said.  “People not just in the state of Alabama but all over the world, things they went through.”

Other states have passed similar laws, including California and Florida in the 1990s.

The chemical castration law says sex offenders whose victims were younger than 13 will have to take “medroxyprogesterone acetate treatment or its chemical equivalent, that, among other things, reduces, inhibits, or blocks the production of testosterone, hormones, or other chemicals in a person’s body.”

The law requires the treatment to begin at least one month before a parolee is released.  The parolee is required to pay for the treatment unless a court determines he cannot. The Alabama Department of Public Health will administer the treatments.

Randall Marshall, executive director of the ALCU of Alabama, said the chemical castration treatment has been rarely used in other states that have authorized it through law. Marshall thinks it likely violates the ban on cruel and unusual punishment.  “It’s not clear that this actually has any effect and whether it’s even medically proven,” Marshall said. “When the state starts experimenting on people, I think it runs afoul of the Constitution.”

Hurst said children who are victims of child abuse are affected for the rest of their lives and said those who abuse children should face lifelong consequences. "What’s more inhumane than molesting a small, infant child?' Hurst asked.

Hurst said he has been haunted by the issue since he read an account from a foster care organization about an infant child being molested.  His legislation initially called for surgical castration.

Sen Cam Ward, R-Alabaster, who handled Hurst’s bill in the Senate, said the law will apply to a small number of offenders because many who molest children won’t be considered for parole.  He believes the treatments will work for those who are.  “I think it’s a good law,” Ward said.  “I think it’s a good deterrent.”

A search of this blog's archives reveals that chemical (or physical) castration of sex offenders is often discussed, but not often utilized, in both the United States and around the world.  But there historically has been little reliable evidence as to whether this novel punishment "works" to reduce recidivism.  It will be interesting to see if this new law actually ends up being applied and well studied in Alabama, though I suspect litigation and other administrative matters may keep it from being used with regularity.

Some of many prior related posts:

June 11, 2019 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, June 06, 2019

Critically reviewing how the Bureau of Justice Statistics has reviewed its sex offender recidivism data

Last week I blogged here about the Bureau of Justice Statistics' press release providing highlights of this big report titled "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)."  A helpful reader made sure I did not miss this notable new piece by Wendy Sawyer over at Prison Policy Initiative reacting to these documents.  This posting is fully titled "BJS fuels myths about sex offense recidivism, contradicting its own new data: A new government report reinforces harmful misconceptions about people convicted of sex offenses. Here's our take on how to parse the data."  I recommend the piece in full, and here are excerpts:

A new report released by the Bureau of Justice Statistics should put an end to this misconception: The report, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), shows that people convicted of sex offenses are actually much less likely than people convicted of other offenses to be rearrested or go back to prison.

But you wouldn’t know this by looking at the report’s press release and certain parts of the report itself, which reinforce inaccurate and harmful depictions of people convicted of sex offenses as uniquely dangerous career criminals.  The press release and report both emphasize what appears to be the central finding: “Released sex offenders were three times as likely as other released prisoners to be re-arrested for a sex offense.” That was the headline of the press release.  The report itself re-states this finding three different ways, using similar mathematical comparisons, in a single paragraph.

What the report doesn’t say is that the same comparisons can be made for the other offense categories: People released from sentences for homicide were more than twice as likely to be rearrested for a homicide; those who served sentences for robbery were more than twice as likely to be rearrested for robbery; and those who served time for assault, property crimes, or drug offenses were also more likely (by 1.3-1.4 times) to be rearrested for similar offenses. And with the exception of homicide, those who served sentences for these other offense types were much more likely to be rearrested at all.

The new BJS report, unfortunately, is a good example of how our perception of sex offenders is distorted by alarmist framing, which in turn contributes to bad policy. That this publication was a priority for BJS at all is revealing: this is the only offense category out of all of the offenders included in the recidivism study to which BJS has devoted an entire 35-page report, even though this group makes up just 5% of the release cohort. This might make sense if it was published in an effort to dispel some myths about this population, but that’s not what’s happening here.

Prior related post:

June 6, 2019 in Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, June 05, 2019

Spotlighting the "modern-day gulags" that hold sex offenders indefinitely in "civil commitment"

A helpful reader made sure I did not miss this new extended Washington Spectator piece headlined "Modern-Day Gulags In the Golden State."  I recommend the full piece, which gets started this way:  

Back in 1997, the Supreme Court ruled that the practice known as civil commitment was legal.  This meant that 20 states — which had passed laws permitting the ongoing incarceration of sex offenders — could continue to keep the men confined even after they completed their prison terms.  (See “Sex Crimes and Criminal Justice,” from the May 2018 issue of The Washington Spectator, available here.)

All it took (and still takes) is for two psychologists to claim the men might commit a new crime and a judge to say their cases can move forward.  They are then labeled sexually violent predators (SVPs) and reincarcerated in prisonlike facilities until new trials are held — supposedly to determine if they will be civilly committed or released.  The result? Some men have been waiting for their day in court for 15 to 20 years. In the meantime, many have died.

No matter that the men already served their prison time.  Or that psychologists, psychiatrists and lawyers I interviewed insist that very few should be confined — that instead, the vast majority, many of whom are elderly or ill, should be let out.

Eric Janus, former president and dean of Mitchell Hamline Law School in St. Paul, Minn., says that continuing to incarcerate the men to comfort fearful constituents doesn’t make the public safer.  The bottom line?  “I’ve never seen numbers that show there are fewer sex offenses or re-offenses in the 20 states that have the SVP laws than in the other 30 states that don’t,” Janus says.

Then why are roughly 2,500 men still stashed away across the country?  Locking up sex offenders is always good politics, but it is also extraordinarily profitable.  And since California has the biggest budget and locks up the biggest number — three times the next three states’ combined — the Golden State offers the biggest boondoggle to explore.

To document a system awash in double-talk and dollars, I interviewed 45 lawyers, psychologists, psychiatric technicians, rehabilitation therapists, nurses, journalists, prison reform advocates and civilly committed men over eight months. Nearly all feared retaliation and asked not to be named.

As the first paragraph above indicates, this is the second piece in a series, and folks should be sure to also check out this first piece "Sex Crimes and Criminal Justice."

June 5, 2019 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, May 30, 2019

Bureau of Justice Statistics releases "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)"

The Bureau of Justice Statistics has this new press release providing highlights of this big new report titled "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)." Here are excerpts from the press release:

State prisoners released after serving time for rape or sexual assault were more than three times as likely as other released prisoners to be re-arrested for rape or sexual assault during the 9 years following their release, the Bureau of Justice Statistics announced today.  Released sex offenders represented 5% of prisoners released in 2005 and 16% of post-release arrests for rape or sexual assault during the 9-year follow-up period.

The BJS study tracked a representative sample of prisoners released in 2005 in the 30 states that were responsible for 77% of all state prisoners released nationwide and examined their arrests through 2014.  An estimated 7.7% of released sex offenders were arrested for rape or sexual assault during the 9-year follow up period, versus 2.3% of other released prisoners.

While rape and sexual assault offenders were more likely than other released prisoners to be arrested for rape or sexual assault, they were less likely than other released prisoners to be arrested for other crimes. About two-thirds (67%) of released sex offenders were arrested at least once for any type of crime during the 9 years following their release, compared to about five-sixths (84%) of other released prisoners.  Almost all prisoners who were re-arrested (96% of released sex offenders and 99% of all released offenders) were arrested for an offense other than a probation or parole violation.

This is BJS’s first recidivism study on sex offenders with a 9-year follow-up period. Fewer than half of released sex offenders were arrested for any crime within the first 3 years of release, while more than two-thirds were arrested within 9 years.  About 3 in 10 released sex offenders were arrested during their first year after release.  About 1 in 5 were arrested during their fifth year after release, and nearly 1 in 6 were arrested during their ninth year....

Overall, half of sex offenders released from prison had a subsequent arrest that led to a conviction.  However, sex offenders were less likely than all released prisoners to have a new arrest resulting in a conviction.  Within 3 years of release, 28% of persons released after serving a sentence for rape or sexual assault had an arrest that led to a conviction, compared to 49% of all released prisoners. At the end of the 9-year follow-up, 50% of sex offenders and 69% of all released prisoners had a new arrest that led to a conviction.

Sex offenders were more likely than other released prisoners to receive longer sentences and to be granted unconditional releases from prison.  The median sentence length for sex offenders was 60 months versus 36 months for all state prisoners released in 30 states in 2005.  About 32% of sex offenders were granted an unconditional release and not placed on parole, probation or some other form of community supervision. About 26% of all released prisoners were granted an unconditional release.

BJS also has created this one-page summary of the report.  In short form, this report details that sex offenders released from state prison in 2005 were less likely to be arrested for any offense than other released prisoners, but they were more likely to be arrested for a sex offense than other released prisoners.  And, as I have said before based other data from this BJS set, recidivism rates for everyone released from state prison in 2005 have been depressingly high.  It is worth emphasizing, though, that these data are focused on prisoners released back in 2005, a time when there was relatively little interest in prison rehabilitation programming or in aiding prisoner reentry.  I am hopeful that recent state reforms on these fronts might be now producing lower recidivism numbers, but only time will tell.

May 30, 2019 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Monday, May 27, 2019

Three years after Michigan sex offender law deemed punitive and unconstitutional for retroactive application, law's application and revision still uncertain

This recent local article, (imperfectly) headlined "Michigan lawmakers ordered to revise the Sex Offender Registry Act," highlights persistent challenges in the implementation of the Sixth Circuit's big 2016 ruling in Does v. Snyder finding constitutionally problematic the retroactive application of Michigan's severe sex offender laws.  Here are the details, with links from the original:

A U.S. district court judge is giving Michigan lawmakers 90 days to change the state's sex offender registry law, almost three years after it was first ruled unconstitutional by federal appeals court.   U.S. District Judge Robert H. Cleland issued an order that the law must be changed on Thursday. 

The ruling stems from an August 2016 decision by the U.S. 6th Circuit Court of Appeals in Cincinnati which found that Michigan's Sex Offender Registry Act was unconstitutional.

Under Michigan's law:

  • Offenders have been prohibited from living, working or even standing within 1,000 feet of a school.
  • They must immediately register email address or vehicles, plus report to the police as often as four times a year.
  • The rules currently apply to all offenders on the registry — even if they've gone decades without committing and crimes. 

The appeals court found the law in violation of constitutional protections against increasing penalties for a crime after its commission and adjudication.  The state appealed to the U.S. Supreme Court, which declined to hear the case — effectively upholding the 6th Circuit ruling. 

But the state has kept the law in place. It argued that the rulings only applied to the specific plaintiffs who brought them — because the appeals court decision came in civil cases instead of class-action lawsuits.  In essence, whether or not offenders needed to completely comply with the act depended on if they'd been able to successfully plead for their individual case in court.

The ACLU, the University of Michigan Clinical Law Program and the Oliver Law Group filed a class-action lawsuit last June that asked that the appeals court to apply the ruling to all Michigan registrants....  In a news release, the ACLU of Michigan said research shows sexual violence and the harm it causes are effectively reduced by prevention programs.  “The Legislature now has both the opportunity and the obligation to use evidence-based research to get this right and provide truly effective tools that enable law enforcement to carry out their work," Shelli Weisberg, ACLU Political Director said in a statement.

Sen. Peter J. Lucido (R-Shelby Township), chairman of the Judiciary and Public Safety Committee told the Free Press discussions with the state police, as well as the ACLU of Michigan have been ongoing, and he sees this as an opportunity to take another look at whether or not SORA is doing the job it was intended to do....

Attorney General Dana Nessel echoed these sentiments in a statement shared with the Free Press Friday afternoon.  “For months now many individuals have been offering input into possible revisions to Michigan’s SORA.  That valuable work is now on a timetable.  In my view, these revisions are long overdue and will bring justice to many who have suffered significant burdens imposed by the obligations and requirements of this bloated registration scheme, which is out of touch with practical ramifications, with the needs of law enforcement, and with a more reasoned understanding of recidivism," Nessel said. 

Clicking through to the federal court order reveals that the district judge has not ordered the Michigan legislature to do anything, but rather the on-going implementation litigation has been put on hold for 90 days because the "parties believe that the Michigan Legislature should be given a further opportunity to revise the statute before this Court addresses the Plaintiffs’ request for injunctive relief on the ex post facto claim, or the parties litigate the other claims."  

Some prior related posts:

May 27, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Monday, May 20, 2019

Waiting for Godot ... Gundy

Waiting-for-godot1-740x1024With apologies to Samuel Beckett, the following script came to mind t capture how I am feeling after another morning of SCOTUS rulings without a decision in one interesting criminal case argued way back in early October:

ESTRAGON: Charming spot. (He refreshes SCOTUSblog.) Inspiring prospects. (He turns to Vladimir.) Let's do some other work.

VLADIMIR: We can't.

ESTRAGON: Why not?

VLADIMIR: We're waiting for Gundy.

ESTRAGON: (despairingly). Ah! (Pause.) You're sure it won't be DIGed?

VLADIMIR: What?

ESTRAGON: That we might wait and wait and not get a ruling.

VLADIMIR: They said by June. (They look at the calendar.) Do you see any others cases taking this long?

ESTRAGON: What others?

VLADIMIR: I don't know. A civil case.

ESTRAGON: What about all the capital cases?

VLADIMIR:  What are you insinuating? That we've come to the wrong place?

ESTRAGON: It should be here by now.

VLADIMIR: Then didn't say for sure it'd come.

ESTRAGON: And if it doesn't come?

VLADIMIR: We'll come back next decision day.

ESTRAGON: And then the decision day after that.

VLADIMIR: Possibly.

ESTRAGON: And so on.

VLADIMIR: The point is—

ESTRAGON: Until Gundy comes.

May 20, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Friday, May 10, 2019

Split Eighth Circuit panel explores lifetime supervised release conditions for child porn offender

A helpful reader made sure I did not miss an Eighth Circuit panel's work today in US v. Carson, No. 17-3589 (8th Cir. May 10, 2019) (available here). Like many federal sentencing cases, there are lots of small stories wrapped within the numbing reality of an offender with an affinity for child porn and teenage girls receiving mass punishment: e.g., the defendant here got "only" 20 years in prison when his guideline range called for 30 years; even though facing the real possibility of imprisonment until nearly 2045, for some reason "Carson did not submit his own sentencing memorandum"; counsel at sentencing did not object to broad conditions of lifetime supervised release, so they get reviewed only for plain error.

The heart of the legal dispute on appeal is defendant's claim that sentencing court should have had to provide a distinct analysis and justifications for his special conditions of supervised release, one of which included social media restrictions seemingly comparable to what the Supreme Court stuck down as unconstitutional in Packingham v. North Carolina. Here is a portion of the majority's rejection of the claims on appeal:

We next turn to Carson’s argument that Special Condition 16 (the social media restriction) “suffers the same flaws as the North Carolina statute held to be unconstitutional in Packingham.”  The Supreme Court in Packingham considered the constitutionality of a statute prohibiting registered sex offenders from “access[ing] a commercial social networking Web site where the sex offender knows that the site permits minor children to become members” or from “creat[ing] or maintain[ing] personal Web pages” on such sites.  Packingham, 137 S. Ct. at 1733 (quoting N.C. Gen. Stat. Ann. § 14-202.5(a), (e)).  The Supreme Court held the statute burdened substantially more speech than necessary to further the government’s interests in protecting minors from sexual abuse.  Id. at 1737–38.  The Court reasoned that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” given the importance of social media for accessing information and communicating with others. Id. at 1737.  Carson argues his court-imposed inability to maintain or create a user account on any social media site falls squarely under the holding of Packingham.

We disagree.  Several of our sister circuits have rejected a similar argument in challenges to supervised release conditions forbidding access to the internet — and effectively to social media sites — without prior approval or monitoring by a court or probation officer.  See United States v. Antczak, 753 F. App’x. 705, 715 (11th Cir. 2018) (unpublished); United States v. Halverson, 897 F.3d 645, 657–58 (5th Cir. 2018); United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017).  These courts have noted Packingham invalidated only a post-custodial restriction and expressed concern that the statute applied even to “persons who have already served their sentence.”  Halverson, 897 F.3d at 658 (quoting Packingham, 137 S. Ct. at 1737).  Because supervised release is part of a defendant’s sentence, Packingham does not render a district court’s restriction on access to the internet during a term of supervised release plain error.  See id.; Rock, 863 F.3d at 831.  We find this reasoning applies with equal force here.  Thus, even assuming the district court’s prohibition on creating or maintaining a social media profile implicates the same First Amendment interests as a restriction on accessing social media altogether, the district court did not commit plain error by imposing Special Condition 16.

And here is the closing paragraph of Judge Kelly's dissent:

I do not minimize the seriousness of Carson’s crimes.  For those he will serve a twenty-year prison term followed by a lengthy term of supervised release.  I also recognize the need to monitor Carson’s conduct upon release.  But Carson was thirty- three at the time of his arrest, and his lifetime term of supervised release could very well last decades. We can only imagine the universe of internet-reliant electronic devices that will pervade everyday life by then.  The length and conditions of Carson’s supervised release may well be justified, but such punishment deserves, at minimum, some reasoned explanation from the sentencing court.  Accordingly, I respectfully dissent.

May 10, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, April 27, 2019

Seventh Circuit finds Indiana approach to revoking good-time credits in sex offender program violates Fifth Amendment right against compelled self‐incrimination

A panel of the Seventh Circuit a few days ago issued a notable opinion in Lacy v. Butts, No. 17-3256 (7th Cir. April 25, 2019) (available here), which affirmed a lower court ruling that part of Indiana's Sex Offender Management and Monitoring program violates the Constitution. Here is how the court's opinion gets started:

When the state wants to encourage suspects, defendants, or incarcerated offenders to admit guilt, it has many tools at its disposal.  Before or during trial, prosecutors may hold out the prospect of a plea bargain. Judges may reward defendants with a sentence reduction for accepting responsibility.  Prison rehabilitation programs may offer benefits and incentives by conditioning visitation rights, work opportunities, housing in a lower‐security unit, and other privileges on an offender’s willingness to admit responsibility for the crime of conviction. McKune v. Lile, 536 U.S. 24, 40 (2002).

But the Fifth Amendment draws one sharp line in the sand: no person “shall be compelled in any criminal case to be a witness against himself.”  U.S. CONST. amend. V. (emphasis added).  This case requires us to decide whether Indiana’s Sex Offender Management and Monitoring (INSOMM) program crosses that line with its system of revoking good time credits and denying the opportunity to earn such credits for convicted sex offenders who refuse to confess their crimes.  In an action brought by a class led by Donald Lacy, an inmate subject to INSOMM, the district court ruled that Indiana’s system as currently operated impermissibly compels self‐incrimination and must be revised.   We affirm.

April 27, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Saturday, April 06, 2019

US District Court declares unconstitutional Illinois host-site rules that has led to indefinite detention of hundreds of sex offenders

Via the always terrific Marshall Project, I came across a notable opinion by US District Judge Virginia Kendall finding constitutionally problematic a remarkable set of rules used to restrict the release of sex offenders from prison in Illinois.  This local press report on this ruling provides these basics:

A federal judge in Chicago has found the Illinois Department of Corrections is violating the constitutional rights of prisoners convicted of certain sex crimes by making the restrictions on where they can live so stringent that inmates are often locked up long beyond their sentences.

In a ruling issued Sunday, Judge Virginia Kendall wrote that hundreds of offenders in the state’s prison system successfully complete their entire court-ordered sentences yet remain behind bars indefinitely.  Kendall found the corrections department is depriving them of fundamental rights, and if they had money and support, they’d be able to leave and begin serving out what’s called “mandatory supervised release.”

Mark Weinberg, an attorney for the plaintiffs, said the decision could mean relief for hundreds of people who have been in prison even though they’ve served their time.... Prisoners call the time they serve beyond their sentences — often many years — “dead time.”...

Will Mingus, executive director of the nonprofit Illinois Voice for Reform which advocates for more effective sex offender policies, says the state’s laws are counterproductive — they actually keep these prisoners from receiving the support that research shows will help them rehabilitate.  “The laws [the legislature is] creating are not solving the problem, they’re not creating safety, they’re creating the illusion of safety,” Mingus said. “Studies that have been done for years now you’ll see that having stable housing, having a job, having social support, those are the things that help people reintegrate into society and help reduce recidivism.”  Mingus said he understands it is difficult to have practical conversations around paroling and rehabilitating sex offenders, but he thinks the judge’s ruling is common sense.  “I think it’ll be a win for the people currently sitting in prison long past their out date because they simply cannot find a place to parole to,” Mingus said. 

Adele Nicholas, an attorney for the plaintiffs, says there are a couple of potential solutions the department of corrections could implement.  “One would be making available different forms of free housing that people who can’t afford a place to live could go to,” Nicholas said.  “Whether that’s allowing people to parole to homeless shelters, or making it so there are halfway houses people could live in, or work release.”  Currently, there are no halfway houses in Illinois that will accept someone convicted of a sex offense.

Kendall wasn’t clear on exactly what the solution will be to get the men released from prison quickly. She expects to hold a hearing April 22 to begin determining that, she wrote.

The full 61-page ruling in Murphy v. Raoul, No. 16 C 11471 (N.D. Ill. March 31, 2019), is available at this link.  Here is how it starts and ends:

The Paul Murphy is indigent and homeless.  He was convicted of possession of child pornography in 2012 and received a sentence of three years’ probation.  Five years after his release date, and nearly twice the number of years of his sentence, he remains incarcerated because the Department of Corrections cannot find an appropriate place for him live. 

Illinois, like many states, requires sentencing courts to follow a term of imprisonment with a term of mandatory supervised release.  Supervised release is a form of post-confinement monitoring intended to assist individuals in their transition from prison to liberty.  Most supervised release terms are determinate, but some — including those that apply to several sex offenses — are indeterminate, meaning they range from three years to natural life.  The clock on these terms does not start ticking until sex offenders are out of prison, but some never make it that far because they are indigent and the State demands that they first secure a qualifying host site before it will release them.  Many offenders successfully complete their entire court-ordered terms of incarceration yet remain detained indefinitely because they are unable find a residence due to indigence and lack of support.

The question presented is whether this practice violates the Constitution.  The plaintiffs are a class comprising the affected sex offenders and the defendants are the Attorney General of Illinois and the Director of the Illinois Department of Corrections.  Both parties moved for summary judgment.  The Court now grants the plaintiffs’ motion in part, denies it in part, and denies the defendants’ cross-motion in full.   At the very heart of the liberty secured by the separation of powers is freedom from indefinite imprisonment by executive decree.  The Attorney General and Director’s current application of the host site requirement results in the continued deprivation of the plaintiffs’ fundamental rights and therefore contravenes the Eighth and Fourteenth Amendments to the Constitution of the United States....

Sex offenders are criminals, plain and simple.  Yet the “one enduring lesson in the long struggle to balance individual rights against society’s need to defend itself against lawlessness,” is that it “‘is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy.  It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.’” United States v. Montoya de Hernandez, 473 U.S. 531, 567 (1985) (quoting Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting)).

The Illinois Legislature thought it best to rehabilitate sex offenders by reintegrating them, like all other convicted felons, into the community after prison.  The Constitution thus entitles them to the same conditional liberty that all other releasees receive.  Because the defendants’ current application of the host-site requirement permits the indefinite detention of the plaintiffs, it breaches the promises enshrined in the Bill of Rights.  The Court accordingly grants the plaintiffs’ motion for summary judgment as to their equal protection (Count II) and Eighth Amendment claims (Count IV), denies it as to their substantive (Count I) and procedural (Count III) due process claims, and denies the defendants’ cross-motion in full.

Although the Court today decides liability, it reserves ruling on the proper remedy to afford the plaintiffs.  The Court sets a status hearing for 4/22/2019 at 9:00 a.m. to discuss a trial date for the procedural due process claim and the need for a remedial hearing to determine the scope of equitable relief.

April 6, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (7)

Wednesday, March 27, 2019

Noticing Gov Newsom's not-so-progressive approach to parole so far

The Los Angeles Times has this notable new piece which reports on the notable reality that it seems only the serious offenders sent by juries to California's death row are getting grace from California's new governor.  The piece, headlined "Newsom seeks to halt parole for some murderers and serious offenders. What does that signal?," includes these passages:

Trenton Veches liked to suck on the toes of young boys and has spent the last 16 years in prison because of it. A jury convicted him in 2003 at age 32 in a case that shook Newport Beach, where he was a supervisor in the city’s youth recreation program. He was tried on multiple counts of child molestation and sentenced to two concurrent life terms after being caught in the act by a co-worker.

Last week — despite an attempt by Gov. Gavin Newsom to stop it — Veches won parole.

Veches’ impending release is one of 33 cases in which Newsom, since taking office, has attempted to stop a serious offender from receiving parole, according to documents provided by the governor’s office. Parole hearings usually take place in front of a two-person panel. The governor can’t revoke these paroles but can ask the state’s 15-member Board of Parole Hearings to review them.

Newsom also has stopped 46 paroles for murderers, a different process that allows him to act unilaterally through executive powers. Brian Ferguson, a spokesman for Newsom, said, “Each case that comes before the governor is evaluated on its own merits and receives careful review and consideration.”

The interventions mark a steep increase from those undertaken by former Gov. Jerry Brown and are a departure from the progressive criminal justice reform stance that Newsom has championed, including his recent moratorium on the death penalty.

In 2018, the parole board reviewed seven cases at Brown’s request and Brown reversed 28 paroles for murderers, a steady decline from his peak of 133 reversals in 2014. Newsom has more than quadrupled requests for reviews of serious offenders in three months in office and is on pace to match Brown’s peak year of reversals for murder cases.

Newsom’s spike in parole interventions has some wondering whether he is trying to keep more serious offenders in prison or just taking a cautious approach to a dicey issue. “The governor’s reversal rate [on paroles] has dramatically increased over Brown,” said Charles Carbone, Veches’ attorney and a specialist in parole hearings. “The question now becomes: Is it a matter of a new policy?”

Newsom’s active role in opposing releases might point to a growing political problem for him within the state’s parole system: rising numbers of offenders eligible for release because of criminal justice reforms, including Proposition 57, a measure championed by Brown. More so than any of his predecessors, California’s new governor likely will be responsible for overseeing tough decisions on whether certain sex offenders and criminals with multiple felonies should be freed.

California holds between 4,000 to 5,300 parole hearings each year, according to a recent legislative report. Next year, that is expected to jump to 7,200 and rise again to 8,300 the following year — changes wrought by Proposition 57 alone could add up to 4,000 new hearings, according to Michael Romano, head of the Three Strikes Project at Stanford Law School. There are currently 34,136 California inmates serving life sentences with the possibility of parole, according to the California Department of Corrections and Rehabilitation. “There is an incredible backlog and bottleneck,” Romano said....

While some governors, such as Gray Davis, took a hard line on parole, Brown and Republican Arnold Schwarzenegger allowed an increase in releases, said Keith Wattley, executive director of an Oakland legal nonprofit that specializes in prisoners’ rights. Brown dramatically decreased the number of both reversed murder paroles and non-murder cases flagged by the governor’s office during his terms.

Jack Pitney, a professor of politics at Claremont McKenna College, said Newsom is keenly aware of the potential for political danger after his controversial decision to halt executions. Many criticized Newsom for ignoring the will of California voters, who rejected a ballot measure to abolish the death penalty and approved another to speed up executions in 2016. “The thing that keeps governors awake at night is the prospect that a bad person will be let out and go on to commit heinous crimes and the governor will be held responsible,” Pitney said. “After the death penalty reprieves, he is very sensitive to that risk and does not want to be the next Michael Dukakis.”...

Newsom’s efforts to prevent the release of criminals poses little downside, Pitney said. “I think he can make a case that he’s being consistent: We should be careful of releasing prisoners and careful about the punishments we impose,” Pitney said.

Romano said some of the interventions might be leftovers from Brown’s time in office and are too few in number to judge. Wattley, head of the nonprofit that specializes in prisoners’ rights, agreed it was “too early to know … how alarmed to be,” but the possibility of parole raised by Brown gave inmates hope and created an incentive for rehabilitation. Newsom’s interventions, if ongoing, could undo that, he said.  Wattley said paroling serious offenders is necessary to decrease the number of people incarcerated, a key component of criminal justice reform.  “You can’t do that unless you find a pathway home for people convicted of serious or violent crimes,” he said.

Sex offenders in particular are politically perilous candidates for parole.  Proposition 57 backers promised it wouldn’t free sex offenders, and state prison officials wrote rules for its implementation that excluded them. But a state court ruled last year that the wording of Proposition 57 didn’t give leeway for a blanket prohibition, particularly for inmates with past sex offenses currently incarcerated on other charges.

Fifteen of the cases Newsom has flagged for reconsideration involve inmates with current or past sex offenses, according to the CDCR.  Sonya Shah, executive director of a Bay Area nonprofit that works with sex offenders, said sex crimes are left out of criminal justice reform and often lumped together in public perception despite encompassing a “spectrum of harms” to victims.  “We are not willing to have the nuance with sexual crime,” Shah said. “The way [sex offenders] are painted, they are monsters.”

March 27, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (8)

Tuesday, March 05, 2019

Georgia Supreme Court unanimously declares state's approach to lifetime GPS monitoring for sex offenders violates Fourth Amendment

The Supreme Court of Georgia issued a notable unanimous opinion yesterday in Park v. Georgia, No. S18A1211 (Ga. March 4, 2019) (available here), declaring unconstitutional the state's lifetime GPS monitoring requirement for certain sex offenders. The opinion for the court authored by Chief Justice Melton starts this way:

We granted an interlocutory appeal in this case to address Joseph Park’s facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator – but who is no longer in State custody or on probation or parole – wear and pay for an electronic monitoring device linked to a global positioning satellite system (“GPS monitoring device”) that allows the State to monitor that individual’s location “for the remainder of his or her natural life.” Id. at (e). For the reasons that follow, we conclude that OCGA § 42-1-14(e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the extent that it does so.

Notably, a concurring opinion by Justice Blackwell seems interested in helping the state legislature find a work around to this ruling. His opinion starts this way:

The General Assembly has determined as a matter of public policy that requiring some sexual offenders to wear electronic monitoring devices linked to a global positioning satellite system promotes public safety, and it enacted OCGA § 42-1-14(e) to put that policy into practice. The Court today decides that subsection (e) is unconstitutional, and I concur fully in that decision, which is driven largely by our obligation to faithfully apply the principles of law set forth by the United States Supreme Court in Grady v. North Carolina, ___ U.S. ___ (135 SCt 1368, 191 LE2d 459) (2015).  I write separately, however, to emphasize that our decision today does not foreclose other means by which the General Assembly might put the same policy into practice.

Our decision rests in significant part on the fact that subsection (e) requires some sexual offenders to submit to electronic monitoring even after they have completed the service of their sentences.  But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.

March 5, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Monday, March 04, 2019

Third Circuit panel rules sex offenders subject to registration laws in Pennsylvania are "in custody" for habeas purposes

Last week, a unanimous panel of the Third Circuit issued what seems to be a groundbreaking ruling about habeas jurisdiction. In Piasecki v. Court of Common Pleas, No. 16-4175 (3d Cir. Feb 27, 2019) (available here), the Third Circuit distinguished a variety of contrary rulings from other circuits to hold that a registered sex offender in Pennsylvania is “in custody” for purposes of having jurisdiction to bring a habeas corpus challenge. Here is how the opinion starts and ends:

We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction.  We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.  Accordingly, we will reverse the District Court and remand for further proceedings.....

The writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”  The scope of the writ has grown in accordance with its purpose — to protect individuals against the erosion of their right to be free from wrongful restraints upon their liberty.  SORNA’s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally.  The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction.  For all of the reasons set forth above, the order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

March 4, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, February 24, 2019

After special favors and CVRA violation, what should happen to Jeffrey Epstein and his problem prosecutors?

The Miami Herald has done extraordinary work looking behind Jeffrey Epstein too-sweet deal, and it reports effectively here on the significant federal court ruling last week that prompts the question in the title of this post.  Here are the details:

Federal prosecutors, under former Miami U.S. Attorney Alex Acosta, broke the law when they concealed a plea agreement from more than 30 underage victims who had been sexually abused by wealthy New York hedge fund manager Jeffrey Epstein, a federal judge ruled Thursday [available here].

While the decision marks a victory for crime victims, the federal judge, Kenneth A. Marra, stopped short of overturning Epstein’s plea deal, or issuing an order resolving the case.  He instead gave federal prosecutors 15 days to confer with Epstein’s victims and their attorneys to come up with a settlement. The victims did not seek money or damages as part of the suit.

It’s not clear whether the victims, now in their late 20s and early 30s, can, as part of the settlement, demand that the government prosecute Epstein. But others are calling on the Justice Department to take a new look at the case in the wake of the judge’s ruling.

"As a legal matter, the non-prosecution agreement entered into by the U.S. Attorney’s Office in the Southern District of Florida does not bind other U.S. Attorneys in other districts. They are free, if they conclude it is appropriate to do so, to bring criminal actions against Mr. Epstein and his co-conspirators," said lawyer David Boies, representing two of Epstein’s victims who claim they were trafficked by Epstein in New York and other areas of the country.

Earlier this month, the Department of Justice announced it was opening a probe of the case in response to calls from three dozen members of Congress. Nebraska Sen. Ben Sasse, the Republican chairman of the Senate Judiciary Oversight Subcommittee, on Thursday asked the DOJ to re-open Epstein’s plea deal. "The fact that it’s taken this long to get this far is heartbreaking and infuriating," said Sasse. "The Department of Justice should use this opportunity to reopen its non-prosecution agreement so that Epstein and anyone else who abused these children are held accountable."...

Brad Edwards, who represents Courtney Wild — Jane Doe No. 1 in the case — said he was elated at the judge’s ruling, but admitted he is troubled that it took 11 years to litigate. He blamed federal prosecutors for needlessly dragging it out when they could have remedied their error after it was brought to their attention in 2008. "The government aligned themselves with Epstein, working against his victims, for 11 years,’’ Edwards said. "Yes, this is a huge victory, but to make his victims suffer for 11 years, this should not have happened. Instead of admitting what they did, and doing the right thing, they spent 11 years fighting these girls."

Marra, in a 33-page opinion, said prosecutors not only violated the Crime Victims’ Rights Act by not informing the victims, they also misled the girls into believing that the FBI’s sex trafficking case against Epstein was still ongoing — when in fact, prosecutors had secretly closed it after sealing the plea bargain from the public record.

The decision follows a three-part series published by the Miami Herald in November, "Perversion of Justice," which detailed how federal prosecutors collaborated with Epstein’s lawyers to arrange the deal, then hid it from his victims and the public so that no one would know the full scope of Epstein’s crimes and who else was involved.

The 66-year-old mogul lured scores of teenage girls from troubled homes — some as young as 13 — as part of a cult-like scheme to sexually abuse them by offering them money to give him massages and promising some of them he would send them to college or help them find careers. Future president Donald Trump, former president Bill Clinton, lawyer Alan Dershowitz, Prince Andrew and other world leaders, scientists and academics were friends with Epstein, who also owns a vast home in Manhattan, a private jet, and an island in the U.S. Virgin Islands, where he now lives....

Instead of prosecuting Epstein under federal sex trafficking laws, Acosta allowed Epstein to quietly plead guilty in state court to two prostitution charges and he served just 13 months in the Palm Beach County jail. His accomplices, some of whom have never been identified, were not charged.

Epstein’s victims were not told the case was closed until it was too late for them to appear at his sentencing and possibly upend the deal. Two of them filed a lawsuit in the U.S. District Court for the Southern District of Florida in 2008, claiming that prosecutors violated the Crime Victims’ Rights Act, which grants victims of federal crimes a series of rights, including the ability to confer with prosecutors about a possible plea deal....

Acosta, who was nominated as labor secretary in 2017, issued a written statement through a spokesman: “For more than a decade, the actions of the U.S. Attorney’s Office for the Southern District of Florida in this case have been defended by the Department of Justice in litigation across three administrations and several attorneys general. The office’s decisions were approved by departmental leadership and followed departmental procedures. This matter remains in litigation and, thus, for any further comment we refer you to the Department of Justice.”

Michelle Licata, who was molested by Epstein when she was 14, said the judge’s decision was "a step for justice." But she still questions why federal authorities have failed to open a new case against Epstein, given that more victims and evidence has come to light in recent years. "They should see if they can prosecute him for something. I mean, really prosecute him — instead of giving him 13 months where he was allowed to come and go as he pleased. I just want to see him face some consequences for what he did."

Francey Hakes, a former federal prosecutor, said the Crime Victims’ Rights Act doesn’t spell out any punishment for violating its terms, so it would set a precedent to re-open Epstein’s agreement. "Epstein will surely argue he complied with the agreement, relied upon it, and plead guilty under it so it can’t be overturned in fairness to him," she said. "I will be very interested to see what the parties say the remedy for the violation should be. Ultimately, it is simply shocking the Government went to the lengths they did to keep the victims in the dark in order to make a serious predator’s high priced defense team happy. Justice should not, and does not, look like this."

This commentary by two former federal prosecutors asserts that there should be lots of consequences from the new ruling in this matter:

Outside of the Justice Department, it also seems untenable for Acosta to be allowed to remain in his position as head of the Department of Labor — a federal agency with significant role to play in combating and prosecuting human trafficking cases and protecting the rights of minors. He should be fired or resign.

Most significantly, Epstein and anyone else involved in this crime need to be held fully accountable and the rights of the victims fully vindicated. Judge Marra has already ruled that the CVRA authorizes “the rescission or ‘reopening’ of a prosecutorial agreement, including a non-prosecution agreement, reached in violation of a prosecutor’s conferral obligations under the statute.” Judge Marra seems to be suggesting that Epstein’s agreement be voided and the federal investigation reopened. (Sen. Ben Sasse, R-Neb., has called for DOJ to do just that.)

It is always tricky to Monday morning quarterback another prosecutor’s decision: There are often facts and circumstances known only to the prosecutors that factor into whether to proceed with charges, take a case to trial or even enter into an NPA. However, given the many deficiencies in the NPA — most notably the systematic exclusion of victims from the resolution of this case, DOJ should reopen the investigation, and assign it to another U.S. attorney’s office or an arm of the DOJ.

The only way to preserve the integrity of this case is for a clean set of eyes to review the facts and ensure that justice is done.

UPDATE: For some additional commentary on this case and the latest CVRA opinion, check out Paul Cassell's posting at The Volokh Conspiracy, "Prosecutors Violated the Rights of Jeffrey Epstein's Victims" and Kent Scheidegger's posting at Crime and Consequences, "The Crime Victims Rights Act and the Epstein Case."

February 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, February 14, 2019

"The Dark Figure of Sexual Recidivism"

The title of this post is the title of this new paper authored by Nicholas Scurich and Richard John now available via SSRN.  Here is its abstract:

Empirical studies of sexual offender recidivism have proliferated in recent decades. Virtually all of the studies define recidivism as a new legal charge or conviction for a sexual crime, and these studies tend to find recidivism rates on the order of 5-15% after 5 years and 10-25% after 10+ years.  It is uncontroversial that such a definition of recidivism underestimates the true rate of sexual recidivism because most sexual crime is not reported to legal authorities, the so-called “dark figure of crime.”

To estimate the magnitude of the dark figure of sexual recidivism, this paper uses a probabilistic simulation approach in conjunction with a.) victim self-report survey data about the rate of reporting sexual crime to legal authorities, b.) offender self-report data about the number of victims per offender, and c.) different assumptions about the chances of being convicted of a new sexual offense once it is reported.  Under any configuration of assumptions, the dark figure is substantial, and as a consequence, the disparity between recidivism defined as a new legal charge or conviction for a sex crime and recidivism defined as actually committing a new sexual crime is large.  These findings call into question the utility of recidivism studies that rely exclusively on official crime statistics to define sexual recidivism, and highlight the need for additional, long-term studies that use a variety of different measures to assess whether or not sexual recidivism has occurred.

February 14, 2019 in Data on sentencing, National and State Crime Data, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)

Wednesday, February 13, 2019

Federal district judge finds Alabama sex offender license plate and internet provisions violate First Amendment

Thanks to this post by Jacob Sullum at Reason, I see some notable constitutional reasoning has brought down two extreme sex offender provisions in Alabama law.  The full title of this reason posting provides the basics: "'Sex Offenders Are Not Second-Class Citizens,' Says Judge While Nixing Alabama Rules on First Amendment Grounds: The decision rejects driver's licenses labeled "CRIMINAL SEX OFFENDER" and a broad demand for reports on internet use." Here paragraphs from the posting (with a link to the opinion):

"Sex offenders are not second-class citizens," writes U.S. District Judge W. Keith Watkins in a recent decision overturning two provisions of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA) on First Amendment grounds. "The Constitution protects their liberty and dignity just as it protects everyone else's."

Those points, which should be obvious, are a sadly necessary corrective to the hysteria that has driven legislators in one state after another to enact indiscriminate, mindlessly restrictive, and covertly punitive laws aimed at sex offenders. ASORCNA, which Watkins calls "the most comprehensive and debilitating sex-offender scheme in the nation," is a prime example....

On Monday, Judge Watkins ruled that Alabama's branding of registered sex offenders' identification cards is a form of compelled speech prohibited by the First Amendment. "The branded-ID requirement compels speech," he writes, "and it is not the least restrictive means of advancing a compelling state interest."  The state conceded that its ostensible purpose of alerting police officers to a sex offender's status could be served by a much less conspicuous mark, such as a letter, that the general public would not readily recognize as a badge of shame.  "Using one letter would keep officers informed while reducing the unnecessary disclosure of information to others," Watkins notes.

Another aspect of Alabama's "debilitating sex-offender scheme" is a requirement that people in the registry report "email addresses or instant message addresses or identifiers used, including any designations or monikers used for self-identification in Internet communications or postings other than those used exclusively in connection with a lawful commercial transaction."  Registrants also have to keep the authorities apprised of "any and all Internet service providers" they use.  The information, which includes mundane activities such as logging into a Wi-Fi network outside the home or registering with a website to comment on news articles, must be reported within three business days, and local law enforcement agencies have the discretion to demand that it be done in person.

February 13, 2019 in Collateral consequences, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Saturday, February 09, 2019

Michigan Attorney General files amicus briefs in state Supreme Court supporting challenges to state's sex offender registry

As reported in this press release, "Michigan Attorney General Dana Nessel filed amicus briefs in the Michigan Supreme Court [Friday, Feb 8] in Michigan v Snyder (Case number 153696) and People v Betts (Case number 148981), arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community."  Here is more from the release:

“When originally put into place, Michigan’s Sex Offender Registration Act was narrow in scope and specifically designed to be an important law enforcement tool to protect the public from dangerous offenders,” said Nessel.  “But since its enactment, the Act has swelled without any focus on individualized assessment of risk to the community, which makes it increasingly difficult for law enforcement officers to know which offenders to focus on. It also makes it difficult for offenders to rehabilitate and reintegrate into the community because they are limited in where they can live, work or even attend their children’s school functions.”

Nessel also pointed out that public accessibility of the registry has led to shaming, ostracizing, and even bullying of registrants and their families.  Because the registry now allows the public to submit tips on the registry website, the public is essentially encouraged to act as vigilantes, opening the possibility for classmates, work colleagues and community members to be vindictive and retaliatory.

“There are certainly dangerous sexual predators and the public needs to be protected from them,” said Nessel, “but the current requirements are not the way to achieve that goal.”

Amendments to the Act in 2006 and 2011 — especially geographic exclusionary zones and in-person reporting requirements — are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety.  The Sixth Circuit Court of Appeals recently agreed, holding that Michigan’s SORA is punishment and cannot be applied retroactively.  A number of state supreme courts have struck down their state registry laws on similar grounds.

“Simply put,” said Nessel, “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification.”

The filed amicus briefs are linked here for Michigan v Snyder and here for People v Betts.  The full introductions in both briefs are the same, and that intro seems worth reprinting in full here:

The tide is changing.  For years, federal and state courts consistently held that sex offender registration and notification requirements were not punishments and therefore did not violate the Ex Post Facto Clause.  Their conclusions relied heavily on the U.S. Supreme Court’s analysis in Smith v Doe, 538 US 84 (2003), and its conclusion that Alaska’s Sex Offender Registration Act was nonpunitive.  But more recently, both state and federal courts have been rethinking the issue in light of the significant additional burdens that have been added to these statutes since Smith upheld a “first generation” registration statute.  State Supreme Courts in Alaska, California, Indiana, Kentucky, Maine, Maryland, Ohio, Oklahoma, and Pennsylvania have concluded that their registries constitute punishment and their retroactive application an ex post facto violation — either by distinguishing Smith or by relying on their state Ex Post Facto Clause.  In 2015 the Sixth Circuit reviewed Michigan’s Sex Offender Registry Act (SORA), determining that SORA was “something altogether different from and more troubling than Alaska’s first-generation registry law” and holding that its 2006 and 2011 amendments were punishment and that their retroactive application violated the federal Ex Post Facto Clause.  Does #1–5 v Snyder, 834 F3d 696, 703, 705 (CA 6, 2016), reh den (September 15, 2016), cert den Snyder v John Does #1–5, 138 S Ct 55 (2017).  The Sixth Circuit cautioned that Smith was not “a blank check to states to do whatever they please in this arena.” Id. at 705.

Smith’s rationale, which was premised on the limited nature of Alaska’s registration scheme, seems outdated with respect to modern registration schemes.  It surely is with respect to Michigan’s sex offender registry, which has changed greatly since its initial character as a tool to help law enforcement keep Michigan citizens safe from dangerous sexual predators and far exceeds the baseline federal requirements for such registries.  It has become a bloated statute whose recent amendments are out of touch with the practical ramifications of its geographic restrictions and in-person reporting requirements, with society’s evolving relationship with the Internet, with the needs of law enforcement, and with a more balanced and researched understanding of recidivism.

There are dangerous sexual predators, to be sure, and the public needs to be protected from them.  But the current SORA it is not the way to achieve that goal because it places people on the registry without an individualized assessment of their risk to public safety and with little differentiation between a violent rapist or reoffender and an individual who has committed a single, nonaggravated offense.  The 2006 and 2011 amendments are punishment, and their retroactive application violates both federal and state Ex Post Facto Clauses.

UPDATEOver at Simple Justice, Guy Hamilton-Smith has this potent guest post spotlighting some highlights from these briefs and why they their filing is so important.  I recommend the post in full, and here is an excerpt:

Reading the briefs, it is impossible not to be struck by their tone.  When the government is forced to concede a point in a filing, it is usually done in the smarmiest, most back-handed way possible.  There is no trace of that here.  There is, instead, a forceful eloquence and a vision of what effective public safety could look like when it comes to sexual harms. Instead of signing off on the idea of registries being a fundamentally good policy, weaved throughout these briefs is a strain of skepticism as to their utility at all.

To state it differently, these are some of the strongest briefs written assailing public registration as public safety. That they came out of an AG’s office is astonishing.

It is much too early to tell what the extended impact of this will be.  Now that an Attorney General, as opposed to a civil rights litigator (or even a judge) has called a spade a spade, one hopes that others will be willing to follow suit in the quest to earnestly, effectively, and humanely address the spectre of sexual harms in our society.

Or, more dimly, perhaps we will be unable to kick our registry habit, and simply endorse more restrictions, though on fewer people — those whom we are “certain” are dangerous and therefore “deserve” whatever ingenuous cruelties we can dream up.

February 9, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7)

Thursday, February 07, 2019

"The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims"

The title of this post is the title of this new article authored by Paul Cassell and James Marsh, which is forthcoming in the February 2019 issue of the Federal Sentencing Reporter.  Here is its abstract:

Providing restitution to victims of child pornography crimes has proven to be a challenge for courts across the country.  Child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials. While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), allocating a victim’s losses to any particular criminal defendant is problematic.

Five years ago, the Supreme Court gave its answer on how to resolve this issue with its ruling in Paroline v. United States.  Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.”

In the ensuing years, lower courts have struggled to implement this holding.  Just recently, Congress stepped in to ensure that victims will receive appropriate restitution. In November 2018, the Senate and House resolved their differences in how to handle the issue, passing the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (or “AVAA” for short).  President Trump signed the legislation into law on December 7, 2018.

In this article, we describe the impact of this important new legislation. We set the stage by describing the need for restitution for child pornography victims, using the story of the lead victim in the Act (“Amy”) as an illustration of why restitution is needed.  We then turn to the problematic legal regime that was created by the Supreme Court’s Paroline decision, noting some of the confusion in the lower courts following the ruling.  Against this backdrop, we then discuss the AVAA, explaining how it will be a useful step forward for victims of these crimes.  One even more important possibility is that the Act could set a precedent for expanding restitution for victims in the future.

February 7, 2019 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sex Offender Sentencing, Who Sentences | Permalink | Comments (9)

Tuesday, February 05, 2019

Jerry Sandusky convictions affirmed on post-conviction review, but resentencing ordered (on a Blakely/Alleyne issue)

This USA Today article, headlined "Court rules Jerry Sandusky should be resentenced after turning down his appeal," reports on the result of a high-profile (and lengthy) intermediate state-court ruling.  Here are the details:

Jerry Sandusky lost a bid for a new trial Tuesday but a Pennsylvania appeals court ordered him to be re-sentenced for a 45-count child molestation conviction. The former Penn State assistant football coach was sentenced in 2012 to 30 to 60 years, but a Superior Court panel said that included the improper application of mandatory minimums.

In a 119-page opinion , the appeals panel struck down argument after argument that lawyers for Sandusky, 75, had made in seeking a new trial. His defense lawyer, Al Lindsay, said he was disappointed but will ask the state’s highest court to reconsider.

Lindsay said he was unsure if the new sentencing is likely to result in a substantially different sentence. “I suppose it depends on the judge and what happens before the sentencing and after the sentencing,” Lindsay said.

The U.S. Supreme Court has indicated that jurors must consider anything that could result in a longer sentence, and such elements must be proven beyond a reasonable doubt. A judge, not jury, sentenced Sandusky.

The state attorney general’s office said it was pleased that Sandusky’s convictions remained intact. “The Superior Court has agreed with our office that it was proper for the court below to reject Sandusky’s claims,” said Joe Grace, a spokesman for the prosecutors. “We look forward to appearing for the new sentencing proceedings and arguing to the court as to why this convicted sex offender should remain behind bars for a long time.”

This description of the basis of the ruling suggests our old pal, the Sixth Amendment, played a role in the sentencing outcome.

A few prior related posts:

UPDATE: I just came across this link to the full 119-page opinion in this appeal, and on page 118 one can find these sentences:

Appellant is entitled to application of Alleyne, notwithstanding his failure to raise this claim in the PCRA court.  Therefore, we agree with the parties that pursuant to the holdings in Alleyne and Wolfe, the imposition of mandatory minimum sentences was illegal.  Therefore, Appellant is entitled to a remand for re-sentencing without application of any unlawful mandatory minimum sentences.

February 5, 2019 in Blakely in the States, Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, January 02, 2019

US Sentencing Commission releases big new report on "Mandatory Minimum Penalties for Federal Sex Offenses"

The US Sentencing Commission has kicked of the new year with this 81-page report titled ""Mandatory Minimum Penalties for Federal Sex Offenses." This USSC webpage provides this summary and key findings from the report:

Summary

This publication examines the application of mandatory minimum penalties specific to federal sex offenses; it is the sixth and final release in the Commission's series of publications on mandatory minimum penalties.

Using fiscal year 2016 data, this publication includes analyses of the two types of federal sex offenses carrying mandatory minimum penalties, sexual abuse offenses and child pornography offenses, as well their impact on the Federal Bureau of Prisons population. In addition to analyzing child pornography offenses generally, this publication analyzes child pornography offenses by offense type, exploring differences in frequency, offender characteristics, and sentencing outcomes for distribution, receipt, and possession offenses. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.

Key Findings

  • Mandatory minimum penalties for sex offenses are applied less often in the federal system compared to other mandatory minimum penalties.
    • Offenders convicted of a sex offense comprised only 4.2 percent (n=2,633) of federal offenders sentenced in fiscal year 2016.
    • Sex offenses accounted for 19.4 percent of offenses carrying a mandatory minimum penalty in fiscal year 2016.
  • Sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.
    • Offenders convicted of a sex offense increased from 3.2 percent (n=2,317) of federal offenders, in fiscal year 2010, to 4.2 percent (n=2,633) in fiscal year 2016.
    • The number of offenders convicted of sexual abuse offenses has steadily increased since the Commission’s 2011 Mandatory Minimum Report, from 639 offenders in fiscal year 2010 to a high of 1,148 offenders in fiscal year 2016. Additionally, the percentage of sexual abuse offenders convicted of an offense carrying a mandatory minimum penalty also increased substantially, from 21.4 percent in fiscal year 2004, to a high of 63.2 percent in fiscal year 2016.
    • While also increasing over time since 2004, the number of child pornography offenders has remained relatively stable since the Commission’s 2011 Mandatory Minimum Report, decreasing slightly from 1,675 offenders in fiscal year 2010 to 1,565 in fiscal year 2016. The percentage of child pornography offenders convicted of an offense carrying a mandatory minimum penalty, however, has generally increased, from 50.2 percent in fiscal year 2010 to a high of 61.2 percent in 2014, before leveling off to 59.6 percent in fiscal 2016.
  • Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties.
    • In fiscal year 2016, Native American offenders comprised a larger percentage of sexual abuse offenders than of any other offense carrying a mandatory minimum penalty. They constituted 11.7 percent of sexual abuse offenders overall and represented the largest portion (28.2%) of sexual abuse offenders convicted of an offense not carrying a mandatory minimum penalty.
    • White offenders constituted over 80 percent of offenders convicted of any child pornography offense (80.9%), convicted of a child pornography offense carrying a mandatory minimum penalty (83.0%), and those subject to that penalty (83.2%).  In comparison, White offenders comprised 22.7 percent, 27.2 percent, and 31.1 percent of all federal offenders, federal offenders convicted of any offense carrying a mandatory minimum penalty, and federal offenders subject to any mandatory minimum penalty, respectively.
    • The average age for all child pornography offenders and child pornography offenders convicted of an offense carrying a mandatory minimum penalty was 42, five years older than the average age for federal offenders convicted of an offense carrying any mandatory minimum penalty. Nearly half of all child pornography offenders were 41 or older (48.0%).
    • While the average age for sexual abuse offenders was the same as the average age of federal offenders overall (37), of those convicted of a mandatory minimum penalty, 17.6 percent were older than 50 and 20.5 percent were between 41 and 50.
  • Offenders convicted of sex offenses carrying a mandatory minimum penalty are sentenced to longer terms than those convicted of sex offenses not carrying a mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty was nearly three times longer than the average sentence for offenders convicted of a sexual abuse offense not carrying a mandatory minimum penalty (252 months compared to 86 months).
    • The average sentence for child pornography offenders who faced a ten-year mandatory minimum penalty because of a prior sex offense conviction (136 months) was substantially longer than the average sentence for those offenders who were convicted of a possession offense (without a prior sex offense), which does not carry a mandatory minimum penalty (55 months).
    • Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a five-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.
  • Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).
  • While still constituting a relatively small percentage of the overall prison population, the number of both sexual abuse offenders and child pornography offenders in Federal Bureau of Prisons custody has steadily increased, with both reaching population highs as of September 30, 2016.
    • Sexual abuse offenders accounted for only 3.5 percent (n=5,764) of the federal prison population as of September 30, 2016, but the number of sexual abuse offenders in a federal prison has steadily increased since fiscal year 2004, from 1,640 offenders to a high of 5,764 in fiscal year 2016. The number of offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 276 to 4,055, during the same time period.
    • Child pornography offenders accounted for only 5.1 percent (n=8,508) of the federal prison population as of September 30, 2016, but the number of child pornography offenders in federal prison has steadily increased since fiscal year 2004, from 1,259 offenders to a high of 8,508 in fiscal year 2016. The number of offenders convicted of a child pornography offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 118 to 6,303 during the same time period.

January 2, 2019 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (4)

Monday, December 17, 2018

Some of Senator Cotton's suspect claims in his latest case for amendments to the FIRST STEP Act

As noted in an update to this prior post, Senator Tom Cotton has this new National Review commentary making the case for his proposed amendments to the latest version of the FIRST STEP Act under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."  This commentary closes with a passage that troubled me, especially when I looked up the facts of the case he discusses.  Here is how Senator Cotton concludes (with a few details emphasized by me for further commentary):

So far the debate over First Step has been clouded by euphemism and abstraction, which has prevented the public from understanding what the bill actually does. A concrete example will help clarify the stakes. Richard Crawford is a former NASCAR driver who was convicted in August of trying to force a twelve-year-old girl to have sex with him. Crawford was sentenced to nearly 11 years in federal prison, but the statute he was convicted under does not appear in First Step’s “ineligible prisoners” list.  If the bill passes, he will therefore be eligible for time credits that would reduce his time in prison by up to one-third, or nearly four years.  At the end of his prison sentence he would be moved into pre-release custody or supervised release.  He would essentially be a free man.

Crawford’s sex crime was not obscure, low-level, or “victimless.”  Quite the opposite.  His crime had the potential to shatter a child’s life.  It was punished accordingly by a judge and a jury of his peers.  That is how criminal justice ought to work in America.  Now a group of politicians and activists are in a position to overturn that public judgment with the First Step Act.  Conservatives should resist this revolution.

The last few sentences of this passage initially troubled me because nothing in the FIRST STEP Act serves to "overturn" a jury conviction or even a sentencing term.  Rather, the FSA creates additional incentives, through "time credits," for offenders to engage in recidivism-reducing programs.  I think the FSA is popular because the "public judgment" is that it would generally be better for Crawford to be released in 2025 after having successfully engaged in this programming than to be released in 2028 without having made any effort to better himself.

But even more irksome to me is how Senator Cotton portrays his poster child, Richard Crawford, because it seems a bit much to say he tried "to force a twelve-year-old girl to have sex with him" given that he was convicted based on law enforcement posing as a man soliciting people to have sex with a fictitious 12-year-old.  This article about the case explains:

Crawford was accused of agreeing to pay $50-$75 to have sex with a 12-year-old girl, making arrangements with a man named Mike on Craigslist.  Mike and the 12-year-old girl were fictitious and used by law enforcement to catch Crawford in the act.  He responded to an undercover federal agent via e-mail and text between Feb. 10 and Feb. 28. According to the agent, Crawford texted him, “Love for her to be naked and ready,” and asked for photos of the girl.  Crawford was arrested at a location at which he agreed to meet “Mike” on March 1 by the Seminole County Sheriff’s Office and was indicted March 30.

Crawford claimed he agreed to the scenario because he didn’t believe it really involved a child.  His defense was detailed in a recent court filing, arguing against a lengthy sentence.  "Mr. Crawford testified that he thought 'Mike,' the person he was corresponding with, was engaging in a fantasy and that he agreed to participate," the filing read. "Mr. Crawford did not believe there would be a minor present; instead, he thought there would be an adult woman, presumably 'Mike's' wife or girlfriend, and that he and this woman would act the roles in 'Mike's' fantasy."

"Mr. Crawford consistently maintained that he had no intent to have sex with a minor, and if a minor had been present, he would not have had sex with the minor.”

A jury rejected Crawford's claims of innocence and convicted him of "attempted enticement of a minor to engage in sexual activity."  But to say he tried to force a 12-year-old to have sex seems off since there never was an actual 12-year-old.  Indeed, I think it fair to call Crawford's crime "victimless," though the case really serves as a great indication of how hard it is to place accurate short-hand labels on various crimes (and how easy it is for Senator Cotton to make a crime sound worse than it was is using short-hand labels).  To allow Crawford, who is 60 years old and appears to have no criminal history, the chance to earn "time credits" by completing evidence-based programming to reduce his risk of recidivism seem to me sensible, not scary.  (And, as I understand matters, if a risk assessment procedure were to classify Crawford as "high-risk" he would not in fact get any sentence reductions.)

We will see in the coming days whether Senator Cotton gets his proposed amendments added to the FIRST STEP Act.  But if Richard Crawford is the worst version of Willie Horton that he can conjure up for the coming debate, I am not at all convinced there is any need to carve out still further exceptions to the prison reform provisions that seem well-conceived to try to reduce the recidivism risk of as many federal prisoners as possible.

Some of the most recent of many prior related posts:

December 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, December 11, 2018

Sixth Circuit panel overturns ruling that Ohio's lifetime sex-offender registration rules violate procedural due process rights

A panel f the Sixth Circuit handed down an interest opinion today in Doe v. DeWine, No. 17-3857 (6th Cir. Dec. 11, 2018) (available here).  Here is how it gets started and some key passages:

Defendants-Appellants Michael DeWine, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, appeal the district-court judgment declaring that Ohio’s sexual-offender registration and notification laws violate Plaintiff-Appellee Jane Doe’s procedural due process rights because they subject her to lifetime registration requirements, which rest on an implicit finding that she remains likely to reoffend, without an opportunity to rebut that finding.  We REVERSE....

The statute unambiguously provides that the sentencing judge’s determination that a person convicted of a sexually oriented offense “is likely to engage in the future in one or more sexually oriented offenses” is “permanent and continues in effect until the offender’s death.”  O.R.C § 2950.09(D)(2) (2003).  In eliminating an offender’s right to petition the sentencing court for a reclassification hearing and declaring the classification permanent, the Ohio legislature made clear that the initial “classification or adjudication” could never “be removed or terminated,” id., and that an offender’s duties and restrictions stemming from that classification could not “be removed or terminated” either, id. § 2950.07(B)(1).

Thus, Doe’s current sexual-predator classification is based on her likelihood of reoffending as of the time of the classification hearing because under Ohio’s scheme, that assessment operated to require that her name be placed in the sex-offender registry permanently.  As in DPS, no fact other than that assessment is relevant to Doe’s present classification.  538 U.S. at 7.  In other words, Doe’s duty to register and the attendant restrictions stem not from her current dangerousness, but from the assessment of her dangerousness at her classification hearing, which resulted in a permanent sexual-predator classification.  Therefore, she has not been deprived of constitutionally guaranteed process because “due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.” Id. at 4....

In sum, because Doe’s registration requirement stems from the determination of her likelihood of reoffending at the time of her classification hearing and is not dependent on her current dangerousness, she has no procedural due process right to a reclassification hearing.  Further, the wisdom of Ohio’s decision to make the determination of a sexual offender’s future dangerousness permanent is not subject to a procedural due process challenge.

December 11, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Monday, December 10, 2018

Congress finally enacts "Paroline fix" that should improve victim restitution in federal child porn cases

Long-time readers may recall regularly blogging here about federal district and circuit opinions struggling to figure out whether and how courts could impose restitution awards/punishments on federal offenders convicted only of downloading child pornography images.  Because the child porn restitution questions produced various splits in the lower courts, the Supreme Court took up and "resolved" these issues in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  But because Paroline required federal judges, in the words of one district court, to make "essentially a wild-ass guess" when trying to determine the appropriate level of restitution for a victim in a child porn downloading case, this issue continued to cry out for a legislative fix in the wake of the Paroline ruling.

A few days after the Supreme Court ruled in Paroline, I asked in a post "Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?".  And a few years after the Supreme Court ruled in Paroline, victim advocates Paul Cassell and James Marsh talking through these issues in a law review article "Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response".  Now, a little more than 55 months after the Supreme Court ruled in Paroline, Congress managed to get a Paroline fix done in a bipartisan fashion. 

Specifically, Congress used its lame duck session to finalize a long-discussed Paroline fix in the form of an amendment to federal restitution statutes called the "Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018."   President Trump, as reported in this press release, on Friday signed this legislation into law.  Senator Orrin Hatch, who played a leading role in getting this enacted, released this press statement celebrating and explaining this new legislation:

Senator Orrin Hatch (R-UT), the senior Republican and President Pro Tempore of the US Senate, released the following statement after the President signed the Amy, Vicky, and Andy Child Pornography Victim Assistance Act into law. Senator Hatch introduced the legislation alongside Senators Dianne Feinstein (D-CA), Chuck Grassley (R-IA), Amy Klobuchar (D-MN), John Cornyn (R-TX), and Pat Toomey (R-PA). This bill recognizes the unique kind of harm caused by child pornography and requires restitution in a manner that will support victims.

“I’m thrilled the President has signed the Amy, Vicky, and Andy Act into law. This is a momentous day and many years in the making.” Hatch said. “This bipartisan legislation will provide meaningful assistance for child pornography victims to support their recovery and allow them to reclaim their lives. I am proud of this legislation and look forward to seeing it change the world for good.” The legislation establishes more relevant standards for child pornography victims who seek restitution from defendants and gives victims the alternative of a one-time fixed compensation payment from the existing Crime Victims Fund. The bill also allows victims access to the images depicting them, which can be important for victim identification, expert testimony, forensic review, and treatment.

The bill passed in the Senate by unanimous consent in January. With the help of Congressman Trey Gowdy (R-SC), the House sponsor of the bill, and House Judiciary Chairman Bob Goodlatte (R-VA), the House of Representatives passed an amended version of the bill by unanimous consent. In November, the Senate passed the amended bill by unanimous consent, and ... was signed by the President into law.

The bill is named after victims depicted in some of the most widely circulated child pornography series in the world. “Amy,” “Vicky,” and “Andy” all strongly support the bill.

The Amy, Vicky, and Andy Child Pornography Victim Assistance Act includes the following provisions:

  • Findings that focus on the unique nature of child pornography crime and how it harms victims
  • A more relevant and predictable definition of “full amount of a victim’s losses”
  • Restitution: --- Child pornography production: victims receive full amount of their total losses; ----Child pornography trafficking: victims receive from each defendant a minimum of $3,000
  • Compensation: --- Victims of child pornography trafficking are entitled to receive a one-time payment of $35,000 in defined monetary assistance (which is indexed to inflation) from a Child Pornography Victims Reserve (CPVR) within the federal Crime Victims Fund (CVF); --- Caps fees for attorneys representing a victim seeking defined monetary assistance at 15%; --- The court must assess defendants in child pornography cases to contribute to the CPVR: up to $17,000 for possession, up to $35,000 for distribution, and up to $50,000 for production crimes; --- The CPVR will be capped at $10 million
  • Victims of child pornography trafficking will enjoy the same priority in restitution payments as victims in other restitution statutes
  • Child pornography victims have equal rights with criminal defendants to review the child pornography depicting them at a government facility or court for the purposes of furnishing expert testimony
  • The Department of Justice must deliver a report to Congress within two years after passage about the Act’s implementation including an assessment of the funding levels for the Child Pornography Victims Reserve

I have long been a support of more effective and predictable restitution mechanisms in these  kinds of cases and others, so I welcome this overdue development.  Because few have been reporting consistently on the impact of the Paroline ruling in federal cases, I am especially glad this legislation give the Justice Department a responsibility to report on this new legislation's effectiveness.

A few (of many) prior posts on Paroline and child porn restitution issues mostly from some years ago:

December 10, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Monday, November 19, 2018

Wondering about plea deals and departure authority in Washington after sentencing in awful rape and manslaughter case

Debates about federal sentencing and judicial discretion have long included district judges lamenting having to impose unduly severe sentences under federal statutory mandatory minimums (or under the federal sentencing guidelines before Booker made them advisory).  But this stunning story out of Washington, headlined "Man who raped dying Everett teen gets less than 3 years," reports on a state sentencing judge lamenting having to impose what seems like an unduly lenient sentence under state sentencing guidelines. Here are the details:

Alyssa Noceda was still growing up when she died. The young man who watched her overdose, Brian Varela, will serve less than three years in prison for giving her drugs, raping her and joking about her lifeless body over texts with friends.

Superior Court Judge Linda Krese said Thursday she was bound by law to sentence Varela to 2 years and 10 months.  It’s the most time allowed under state guidelines for second-degree manslaughter, third-degree rape and unlawful disposal of human remains, for someone with no prior record.

Krese was “surprised, even outraged,” by the inadequacy of the sentence. She has seen auto theft cases with more serious penalties.  “I’m not sure the Legislature really contemplated something like this,” Krese said.

Noceda had just turned 18.... Varela, 20, told detectives Noceda came to a party in February at a mobile home near Martha Lake. In Varela’s room, she snorted crushed pills and he offered her a dab of concentrated THC.  She collapsed within a minute of mixing the two, according to Varela’s story. He told police the pills were Percocet.  Tests later showed she’d taken a fatal mix of fentanyl and alprazolam, a generic name for Xanax.  Varela did not call for help.  Instead he texted pictures of Noceda’s partly nude body to coworkers, with comments like, “LOL.”

“Bro you killed her,” one friend said. “But not joking she od bruh,” Varela wrote.  He didn’t care, he added, because he was sexually assaulting her “to pass the time.”...

Varela played an online game until he fell asleep, according to charging papers. He woke up the next morning, he told police, to find Noceda’s lips blue.  She was cold to the touch.  Again, he didn’t call for help.

He went to work at Dairy Queen.  Once he returned, he stuffed the body in a plastic crate. He kept her hidden for days.  He used the thumbprint of Noceda’s hand to hack into her iPhone, to make a post on Snapchat suggesting that she ran away.  He washed her body to try to destroy evidence.  He told friends he planned to bury her near Marysville, then flee to Mexico.  One coworker called police....

Deputy prosecutor Toni Montgomery reached a plea agreement in September. “His complete disregard for the value in her life, and the way he treated her body and what he did with it — 34 months is really the only sentence that would be appropriate, given the current sentencing structure,” Montgomery said in court.

Noceda’s mother [Gina Pierson] and aunt cried when they learned the likely sentence....  In a packed courtroom Thursday, friends and family wore matching black hoodies with Justice-4-Alyssa printed across the back.  The front showed Noceda, with angel wings sprouting from her shoulders.  One by one for about a half-hour, Noceda’s loved ones stood in front of the judge and called Varela a monster and a murderer.

When it was Varela’s turn in court, he spoke two sentences. “I’m sorry for my foolish actions,” he said. “Whatever I get is what I deserve.”

In an interview before the hearing, Pierson said state laws need to change so other families don’t suffer like hers.  She struggled to explain her feelings toward the defendant. She has tried to forgive him, she said.

I can fully understand why the mother of the victim here thinks "state laws need to change," but I do not understand why existing Washington law could not have allowed for a more serious sanction in this horrible case.  For starters, the facts as presented here would arguably fit a charge of Rape in the Second Degree under Washington law ("victim is incapable of consent by reason of being physically helpless"), which is a much more serious offense likely to carry a much more serious sanction. 

Even without a conviction of a higher charge, the manslaughter and rape charges here carry statutory maximum sentences of 10 and 5 years.  For a first offender, it seems, the applicable sentencing guidelines provide for a much lower maximum sentence, but Washington law provides a lengthy list of aggravating circumstances that can allow for a departure above the standard sentencing range.  Any number of possible aggravating circumstances seem readily provable here: e.g., the first two listed are "defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim" and "defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance" and other potential aggravators include the "offense involved an invasion of the victim's privacy" and the "defendant demonstrated or displayed an egregious lack of remorse."

Because a number of aggravating circumstances seem to fir this case, I am not sure the sentencing judge here was correct when saying "I’m not sure the Legislature really contemplated something like this."  Rather, as I see it, the Washington legislature expressly provided a means for judges to go above the applicable sentencing range if and when prosecutors pursue and prove one of these aggravating factors  Perhaps someone who know the work-a-day realities of Washington sentencing law and practice can help me better understand what seems to have gone wrong here.

November 19, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, November 06, 2018

Mandatory minimum drives US District Judge to countenance arguments for jury nullification in federal child porn case

Over at Reason, J.D. Tuccille has this remarkable report about a remarkable federal prosecution in Connecticut under the headline "Federal Judge Advocates Jury Nullification After Being Shocked by Overzealous Child Pornography Prosecution."  Based on the description that follow under the headline, I am not entirely sure it is quite right to say the judge is advocating for nullification. But readers should click through and here is a piece of the story:

"This is a shocking case. This is a case that calls for jury nullification."

Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge — District Judge Stefan R. Underhill of the District of Connecticut — and he spoke in court about a case over which he presided.

The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce."  And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.

That draconian sentence — independent of what was in store in the entirely separate state trial for sex with a minor — was too much for Judge Underhill.  "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court.  "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that.  I don't feel I'm required to preclude that.  And I think justice requires that I permit that."...

"Juries exist for a reason," Pattis argued in court.  "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof.  And in certain trials in our history, juries have done more than that.  They've said the law is wrong, and we, the people, say it's wrong."

In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."  Normally, that's where the matter would have remained.  Judges don't generally want jurors told they can pull the plug on a prosecution because they don't like the law or the possible sentence.  They're generally not permitted to inform juries about nullification, and they're discouraged from informing juries about the consequences in store for convicted defendants.

However, that doesn't mean judges must ban all discussion of jury nullification and sentencing from trials. And occasionally you run across one who is horrified by what prosecutors have in mind. That's why Pattis, who passionately believes in the right to nullification, keeps arguing for a principle that generally gets shot down in court. And last week, he found a judge sympathetic with his arguments.

The U.S. Attorney's Office for the District of Connecticut declined to comment on this case, but did provide me with a copy of the emergency motion it filed seeking a stay in the trial. Prosecutors want time to get a higher court to prevent Judge Underhill from allowing Manzano's defense counsel to inform jurors of the potential sentence and argue for jury nullification.

I have long thought that juries should be informed of the basic sentencing consequences that go with guilty verdict (and I am also generally a fan of jury sentencing). I also think informing juries of sentencing consequences might reasonably be viewed as a requirement of the Sixth Amendment and the Apprendi line of cases.

And, speaking of provisions of the Constitution, it seems to me that this case, if there were a conviction, calls for serious consideration of the Eighth Amendment's limits on grossly disproportionate sentences. If the full offense here is just taking (and then deleting) a video of a teenager having consensual sex, I have a very difficult time seeing how one would not conclude, in the word of Harmelin v. Michigan, that "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality."

November 6, 2018 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (5)

Monday, October 29, 2018

Second Circuit, on third pass of child porn sentence, affirms 25-year prison term it calls "barbaric without being all that unusual"

Back in June I noted here a Second Circuit panel opinion in US v. Sawyer, No. 15-2276, in which a split Second Circuit reversed a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography because the district court, even at a second sentencing, insufficiently addressed statutory sentencing factors and failed "to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  The third time around, the district judge gave a different rationale for imposing a 25-year sentence, and this new split Second Circuit opinion now affirms in an opinion by Judge Jacobs that starts and ends this way:

Jesse Sawyer, having pled guilty to sexual exploitation of children and receipt of child pornography, was originally sentenced primarily to 30 years in prison and a lifetime of supervised release. We ruled that that sentence was shockingly high given Sawyer’s harrowing upbringing and comparatively low danger to the community, and remanded to the district court for resentencing. The district court disagreed with our analysis but found that Sawyer’s exemplary record as an inmate justified a reduction to 25 years. Sawyer returned the matter to our docket, challenging his new sentence on both reasonableness and law‐of‐ the‐case grounds. By order of July 30, 2018, we affirmed Sawyer’s new sentence. We now explain that we did so because the district court effectively complied with our instruction to significantly reduce Sawyer’s sentence and because that sentence is now within the realm of reasonableness....

On this second appeal, Sawyer continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses.... The sentence is barbaric without being all that unusual.

The dissent by Judge Crawford includes these paragraphs at its start:

On resentencing, the district court declined to give any additional weight to either of the factors we identified. The majority accurately describes the district court’s rejection of the appeals court ruling. I intend no criticism of the trial judge.  She was candid about the reasons for her decision and recommended that the case be referred to another judge if we were to conclude that she erred in rejecting our first ruling.  That was an appropriate course of action, and we can ask no more of a judge who cannot in good conscience follow an appellate ruling.

What we cannot do — and where I part company with the majority — is to fail to enforce our original ruling.  Had the district court resentenced the defendant to the same 30‐year sentence, I have no doubt that the other panel members would have joined me in reversing and referring the case to another district judge for a second resentencing. It is not necessary to agree with an appellate ruling, but under any system of the rule of law it is necessary to follow it.

On resentencing in this case, the district court merely changed the subject.  After rejecting our decision, the court found another, previously unavailable reason to impose a reduced sentence. In the district court’s view, the defendant’s two years of model conduct within the prison system after his original sentencing justified a five‐year reduction of sentence.  This new factor led the court to impose a 25‐year sentence in place of the original 30 years.

The majority is prepared to accept the new sentence as reasonable in length and, in effect, call it a day.  I am not. The new sentence still fails to take into proper consideration the two § 3553(a) factors we singled out as the basis for reversal.  That the defendant has since demonstrated other reasons for a reduced sentence is an entirely separate development that fails to justify the district court’s refusal to follow the original mandate.  At this time, we still do not know how a district court which followed the mandate — by giving significant downward weight to the two § 3553(a) factors we identified — would sentence this defendant.  What all three members of this panel unanimously identified as significant substantive errors in the original sentencing decision remain uncorrected.  These errors continue to form the primary basis for the new sentence.

October 29, 2018 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Friday, October 26, 2018

Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!!

I am excited to report that the Supreme Court this afternoon, via this order list, added an interesting sentencing case to its docket by granting cert in United States v. Haymond, 17-1672, a case from the Tenth Circuit in which the defendant prevailed on the claim that the procedures used to sentence him following his supervised release violation was unconstitutional.  The Tenth Circuit opinion below in Haymond is available at this link, and the federal government's cert petition posed this "Question Presented":

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

Seeking (unsuccessfully) to avoid a cert grant, the defendant's brief in opposition to cert framed the issue of the case this way: 

Following his conviction for possession of child pornography, a Class C felony that carried a statutory sentencing range of zero to ten years, a district court judge in a revocation hearing specifically found by only a preponderance of the evidence that Andre Haymond had violated the terms of his supervised release by committing a “second sex offense” as set forth in 18 U.S.C. 3583(k).  The statute required the district court to impose a sentence of not less than five years up to life in prison for commission of the new crime, rather than the zero to two-year statutory range ordinarily applicable for revocation in Class C felony cases.  Did the enhanced sentencing range carrying a mandatory minimum sentence in the revocation proceeding violate the Court’s longstanding jurisprudence guaranteeing a defendant charged with a serious criminal offense to a right to a jury trial under the Fifth and Sixth Amendments?

Given that there are now only two members of the Supreme Court who are generally hostile to Apprendi rights under the Fifth and Sixth Amendment (Justices Alito and Breyer), I do not think it is a given that this grant of cert means that the Justices are eager to reverse the ruling below. But we really do not know just how far any of the other Justices, and especially the new guys Gorsuch and Kavanaugh, are willing to take the Fifth and Sixth Amendment in the sentencing universe, and so I am disinclined to make any predictions on any votes at this point (save for expected Justice Alito to be his usual vote against a criminal defendant).

October 26, 2018 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (6)

Tuesday, October 02, 2018

Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always

On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center.  Here is SCOTUSblog's overview via this round-up post:

Today the eight-justice court will tackle two more cases.  The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine.  Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review.  Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime.  This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here.  Tucker Higgins reports on the case for CNBC.

As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence.  The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons.  But I cannot help but note what seems to me to be relatively small stakes in Madison. 

I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state.  In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."

Prior related preview posts:

UPDATE via SCOTUSblog:  The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?" 

October 2, 2018 in Collateral consequences, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)

Wednesday, September 26, 2018

Another effective preview of coming SCOTUS review of SORNA delegation in Gundy

I was so very pleased to publish this post last week the original commentary of Wayne Logan concerning Gundy v. United States, the soon-to-be-heard Supreme Court case about the administration of the federal Sex Offender Registration and Notification Act (SORNA).  I now see that SCOTUSblog here has up its Gundy preview authored by Mila Sohoni and titled "Argument preview: Justices face nondelegation challenge to federal sex-offender registration law." I recommend the piece in full, and here is how it gets started and ends:

Over 12 years ago, Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirement that a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? SORNA did not itself specify whether pre-SORNA offenders were required to register. It instead authorized the attorney general of the United States to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment, and “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply” with the registration requirement. 

In subsequent years, defendants charged under SORNA contended that the act and its enforcement scheme violated a panoply of constitutional rules....

How the Supreme Court chooses to decide this case could have potentially sweeping implications on several scores. The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA. In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.

Beyond the law of sex-offender registration, the approach the court takes in Gundy could have repercussions across the law of the administrative state. Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given Ginsburg’s dissenting vote in Reynolds, Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U.S. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the Gundycourt will issue a ruling that revives the nondelegation doctrine from its 80-year slumber. If the justices ultimately do find that SORNA’s delegation does something more than just “sail[] close to the wind,” then we can confidently expect to see a string of challenges attacking the exercise of federal administrative power in areas ranging from environmental law to immigration law to food-and-drug law to the law of tariffs and trade. Cass Sunstein famously wrote that nondelegation doctrine has had only “one good year”; when the justices issue their ruling in Gundy, we will discover whether it will finally have a second.

Prior related post:

September 26, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, September 25, 2018

Bill Cosby gets 3 to 10 years of state imprisonment with no bail pending appeal

As reported in this USA Today article, headlined "Bill Cosby sentenced to three to 10 years in state prison, remanded to custody immediately," a high-profile sentencing ended in a high-profile defendant going directly to prison. Here are some of the details:

A handcuffed Bill Cosby was immediately taken into custody Tuesday after a Montgomery County judge sentenced him to three to 10 years in state prison for the sexual assault of Andrea Constand.

“It is time for justice. Mr. Cosby, this has all circled back to you. The time has come,” Judge Steven O’Neill told the convicted sex offender, denying his request for bail pending appeal and ordering him into immediate custody. He quoted from Constand’s statement to the court, in which she said Cosby took her "beautiful, young spirit and crushed it.”

After the sentencing, Cosby removed his jacket, tie and watch before being taken away in handcuffs, an officer holding his arm. He did not respond to a reporter's request for comment.

Cosby publicist Andrew Wyatt issued a fiery retort outside the courthouse, saying Cosby was denied a fair trial and calling the proceeding "the most racist and sexist trial in the history of the United States." He cast blame on District Attorney Kevin Steele; a "racist and sexist mass media"; and three white female psychologists "who make money off of accusing black men of being sexual predators."...

Before announcing Cosby's prison term, O'Neill ruled that he would be designated a "sexually violent predator," requiring that he register as a sex offender and undergo counseling for the rest of his life after his release from prison. Cosby was fined $25,000 and ordered to pay court costs.

The sentence is in line with the one sought by Steele, who asked O’Neill to impose a prison term of five to 10 years after Cosby's conviction in April on charges he drugged and sexually assaulted Constand in 2004. A defense attorney had asked that Cosby, 81, be spared a prison term, citing his age and frailty....

Cosby’s lawyers asked that he be allowed to remain free on bail, but the judge appeared incredulous over the request and said he would not treat the celebrity any differently from others.

At a post-trial news conference, Steele said justice had finally been served, calling the sentence "fair and significant."

“It’s been a long time coming, but (justice) arrived when a convicted felon named William H. Cosby Jr. left the courtroom in handcuffs, headed off to state prison for his crimes," he said. "It’s been a long wait for our victim, Andrea Constand, as it has for the other women who have endured similar sexual assaults and rapes at the hands of the defendant.”

He said Cosby's fame, fortune and popularity helped him create a deceptive image. “For decades, the defendant has been able to hide his true self and hide his crimes using his fame and fortune. He’s hidden behind a character, Dr. Cliff Huxtable (of "The Cosby Show"). It was a seminal character on TV and so was the family, but it was fiction," Steele said. "Now, finally, Bill Cosby has been unmasked, and we have seen the real man as he is headed off to prison."

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September 25, 2018 in Celebrity sentencings, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (7)

Monday, September 24, 2018

The latest controversy over a lenient sentence involving sexual assault comes from Alaska

This lengthy new Washington Post article provides a detailed review of a lenient Alaska sentencing causing a stir.  The article is headlined "A man accused of kidnapping and masturbating on a woman got a ‘pass.’ Now people want the judge and prosecutor out." Here are excerpts:

Hours after Elizabeth Williams learned last week that Justin Schneider wouldn’t spend a day in jail, she turned to Facebook to channel her outrage. 

The Anchorage social worker didn’t know Schneider, 34, before he was arrested in August 2017 after police said he offered a woman a ride from a gas station, stopped on the side of a road and asked her to step out under the pretense of loading items into the car, then choked her until she lost consciousness and masturbated on her.  Nor did Williams know the victim in the case, identified only as a 25-year-old Native woman who called police after the assault.

What she was familiar with was how the case ended: Schneider pleaded guilty to one count of second-degree felony assault in exchange for the dismissal of his other assault, kidnapping and harassment charges. He was sentenced Wednesday to two years in prison, the maximum for that charge, with one year suspended.

However, Schneider was given credit for a year under house arrest, meaning he would not serve additional time in prison. He will instead be required to continue wearing an ankle monitor and participate in a treatment program. “I was just absolutely appalled,” she told The Washington Post.

Soon afterward, Williams learned that Alaska voters were slated to decide whether the judge in the case should be retained on the Anchorage Superior Court in the November elections. And so, Thursday morning, Williams started a Facebook page: “NO retention for Judge Michael Corey,” she named it....

Many in the group also directed their anger at Anchorage Assistant District Attorney Andrew Grannik, the prosecutor in the case, who said he had made the plea deal because Schneider had no prior criminal record and seemed amenable to rehabilitation, according to the Alaska Star.

Grannik said in court that he had “reasonable expectations” that Schneider would not offend again. “But I would like the gentleman to be on notice that that is his one pass. It’s not really a pass, but given the conduct, one might consider that it is,” Grannik said then.

On social media, people seized on the “one pass” comment and demanded that Grannik be given the boot along with the judge.

Meanwhile, Alaska state officials have acknowledged the outrage but said that, while Schneider’s conduct was “very disturbing,” Corey and Grannik were constrained by sentencing laws. “Both the governor and the attorney general think what occurred in this case was unacceptable in terms of the current state of the law,” said Cori Mills, a senior assistant attorney general in the Alaska Department of Law. “The law needs to be changed.”

Under Alaska statute, the definition of sexual contact encompasses only direct physical contact with genitals, buttocks, female breasts or the anus — not semen.  In other words, despite the accusation that Schneider ejaculated on the woman, he could be charged only with harassment in the first degree, which is not a sex offense, according to state Deputy Attorney General Rob Henderson.

He reiterated what the Alaska Criminal Division director stated Friday, in the face of strong backlash over the sentence: State officials had feared that the kidnapping charge, the most serious of the counts, could not have been proved beyond a reasonable doubt if the case had gone to trial because Schneider’s victim had willingly entered his vehicle.

Given that, Henderson said, the prosecution would have been left to pursue lesser charges that, even if they had resulted in convictions, would not have forced Schneider to enter sex offender treatment. “Because the state realized there was a need for sex offender treatment, the only way to obtain that requirement was to get him to agree to it" in a plea deal, Henderson said. “When you have sex offender treatment, you have to have some type of leverage or incentive to compel the person to complete the treatment.”...

In the wake of the case, Alaska Gov. Bill Walker (I) said he planned to propose legislation that would make “causing unwanted contact with semen” a sex offense.  If successful, the penalty for a first-time offense would carry jail time of two to 12 years and require registering as a sex offender.  However, the Alaska legislature does not convene until January, so any fix to the loophole would be months away at the earliest.

Williams, who started the Facebook page calling for the judge’s ouster, said she agreed with the proposed loophole fix and understood the sentencing constraints the judge and prosecutor were under.  However, she wished that the judge had sentenced Schneider to some jail time — or that the case had been taken to trial, even if it meant risking that Schneider would be acquitted of all charges...

The Alaska Star reported that Schneider’s victim was not at the hearing and had, according to police, been traumatized “to the point where she couldn’t hardly speak” after the assault. Details about the case were graphic enough that some local news outlets placed editor’s notes at the tops of their stories warning readers.

The victim “said she could not fight him off, he was too heavy and had her down being choked to death,” Anchorage police Detective Brett Sarber wrote in a criminal complaint obtained by KTVA News last year. “[She] said she lost consciousness, thinking she was going to die.”  When she regained consciousness, the man zipped up his pants, gave her a tissue and “told her that he wasn’t really going to kill her, that he needed her to believe she was going to die so that he could be sexually fulfilled,” Sarber wrote in the complaint.

September 24, 2018 in Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

Details on not yet complete sentencing of Bill Cosby

The sentencing of Bill Cosby following his conviction on three state charges in Pennsylvania got started today, but did not reach a conclusion. This lengthy New York Times article, headlined "Bill Cosby Sentencing: Psychologist Says Threat to Women Remains," reports on what transpired. Here are excerpts: 

In the first of two days of hearings to determine Bill Cosby’s sentence for sexual assault, a psychologist for a state panel testified that Mr. Cosby deserved to be categorized as a “sexually violent predator” because he had a personality disorder that pushed him to have sex with nonconsenting partners.

The finding by the psychologist for Pennsylvania’s Sexual Offenders Assessment Board can be a factor in sentencing and in the conditions imposed on a person found to be a predator, both in prison and afterward.  But the final decision rests with Judge Steven T. O’Neill who is presiding over the hearing that could end Tuesday with one of the world’s best-known entertainers entering a prison cell.

Mr. Cosby’s lawyer, Joseph P. Green, had argued that Mr. Cosby’s age, 81, and legal blindness meant he was no risk, especially since there have been no new allegations of sexual abuse leveled against him since 2004.  “How’s he going to meet these people?” said Mr. Green. “There is no reasonable prospect that an 81-year-old blind man is likely to reoffend.”

But the psychologist, Kristen F. Dudley, said she did not believe the disorder had dissipated with age. “It is possible that he has already met someone who could be a future victim,” she said.  She said that, while Mr. Cosby had declined to meet with her, she was able to draw that conclusion by going through “boxes of documents,” including transcripts from Mr. Cosby’s two trials, one of which ended in April with his conviction on three counts of aggravated indecent assault. Mr. Cosby was convicted of drugging and assaulting Andrea Constand, a former Temple University employee for whom he emerged as a mentor....

Mr. Cosby’s team said its expert witness could not testify until Tuesday, so Judge O’Neill agreed to wait until then to make a decision on the predator determination and Mr. Cosby’s sentence.  If the judge agrees with the board’s psychological assessment, Mr. Cosby would be required to have routine counseling for the rest of his life, and even if not sentenced to prison, he would be required to report monthly to the police.

Mr. Cosby’s legal team had objected to the whole discussion, asserting that the legality of the state’s predator determination process is questionable because, among other things, it does not use the “beyond reasonable” doubt formula for findings in criminal cases.  “The statute is unconstitutional,” said Mr. Green, but the judge found otherwise.

Mr. Cosby had faced a maximum 30-year prison term, 10 years for each of three counts of aggravated indecent assault he was convicted of.  But Judge O’Neill chose on Monday to merge the counts, as allowed when they stem from the same event.  In this case, they originated with an encounter in January 2004 when, Ms. Constand said, Mr. Cosby sexually assaulted her after giving her pills that made her drift in and out of consciousness.

In their remarks, prosecutors asked Judge O’Neill to sentence Mr. Cosby to a five- to 10-year term. “By deterring this type of conduct with a sentence that is appropriate will say that you can no longer get away with this,” the district attorney, Kevin R. Steele, told the court....

Mr. Green argued in favor of house arrest, saying Mr. Cosby is a danger to no one and that the court must be careful not to allow public opinion to affect its decision-making.  “In this case we rely on you to make sure that that public advocacy doesn’t affect the application of the rule of law,” he said, adding later, “It’s your obligation to make sure that the sentencing decision is not affected by all that noise.”

Judge O’Neill will also have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. Those guidelines, which account for any previous criminal record (Mr. Cosby has none), the seriousness of his offense, and mitigating and aggravating factors, suggest a range of about 10 months to four years.  (Sentences in Pennsylvania are given as a range of a minimum and a maximum. Inmates with good behavior may be eligible for parole when they have reached the minimum.)...

Ms. Constand, who now works as a massage therapist in Canada, spoke only briefly as her victim’s impact statement had already been incorporated into the record. “The jury heard me,” she said, “Mr. Cosby heard me and now all I am asking for is justice as the court sees fit.”...  Though dozens of other women have accused Mr. Cosby of drugging and sexually assaulting them, Judge O’Neill rejected a prosecution request to allow any of them to provide their accounts at the hearing.

Mr. Cosby’s defense team chose not to present additional witnesses to discuss, for example, Mr. Cosby’s character or any good works. But in his remarks, Mr. Green emphasized what he called Mr. Cosby’s youth of hardship and racism, his time in the United States Navy and discussed his educational achievements....

Mr. Cosby’s lawyers have filed several motions suggesting that they will file an appeal that challenges the judge’s rulings and even the judge’s personal integrity.  A key question for Tuesday will be whether Mr. Cosby is allowed to remain out on bail while he pursues those appeals, a process that could take years.

His lawyers will argue that he is not a flight risk, and that he is not likely to commit another crime. But if Judge O’Neill were to permit him to stay at home, the judge would surely face bitter criticism from the many female accusers eager for closure this week. “I don’t think the judge will let him out on appeal; he has had his freedom for a long time,” said Barbara Ashcroft, a former prosecutor.

Prior related posts:

September 24, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, September 20, 2018

"Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"

The title of this post is the headline of this lengthy New York Times review of the high-profile sentencing set to take place at the start of next week. The article includes some original analysis of Pennsylvania sentencing outcomes, and here are some excepts that should be of interest to sentencing fans:

When Bill Cosby arrives at the Montgomery County Courthouse next week to be sentenced for sexual assault, he will find out whether prison is the final stop on his descent from beloved entertainer to disgraced felon. But the judge making that decision, Steven T. O’Neill, will confront his own personal pressures, weighty expectations and knotty legal challenges. Chief among them: What to do with an 81-year-old sex offender who could become one of the most famous Americans ever to enter a cell?

At a time when the country is finally reckoning with a culture of predatory sexual abuse by powerful men, Judge O’Neill is likely to survey a courtroom in Norristown, Pa., that is filled with many of the dozens of women who say Mr. Cosby drugged and assaulted not just Andrea Constand, but them, too. A large number of these women expect a long prison sentence, one that will put an exclamation mark on the first major conviction of the #MeToo era.

“My wound was greatly healed by the guilty verdict in the spring,” said Lili Bernard, an actress who says that Mr. Cosby drugged and raped her in the early 1990s. “But to see him in handcuffs, that would be like, ‘Wow.’ We, the victims, deserve that.”

Prosecutors have said they will push for the maximum 30-year prison term: 10 years on each of three counts of aggravated indecent assault. But Mr. Cosby’s lawyers are sure to fight that, depicting him as a frail old man with failing vision, incapable of assaulting another woman or surviving a long sentence.

And Judge O’Neill will have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. A New York Times analysis of Pennsylvania court data for the past five years found that offenders convicted of crimes similar to Mr. Cosby’s often did not receive the maximum penalty, but were more typically given sentences of two to five years....

Mr. Cosby’s spokesman, Andrew Wyatt, confirmed that Mr. Cosby would appeal his conviction, but declined to specify on what grounds.... Mr. Wyatt said Mr. Cosby would ask to remain free on bail, post-sentencing, while he pursues his appeal, a process that could take years. If Judge O’Neill were to allow that, he would surely face criticism from the many female accusers looking to find closure in the case.

“We will all feel very let down by that,” said Victoria Valentino, a former model for Playboy who says Mr. Cosby drugged and raped her in Los Angeles in 1969....

Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, among other conditions, it demonstrates a signature pattern of abuse. But its inclusion is extremely rare, and Judge O’Neill never explained why he allowed the five additional women to testify in the trial this year after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That ended in a mistrial after the jury failed to reach a verdict. “The No. 1 issue is definitely that big change, of letting in those additional complainants in the case,” said Shan Wu, a former sex-crimes prosecutor in Washington. “I am sure that Cosby’s team are licking their chops.”

Experts say judges are often more lenient about bail in cases where the appeal issues are viewed as strong. “When someone has a legitimate issue,” said Brian Jacobs, a former federal prosecutor in New York who has studied the topic, “and there’s an argument that certain evidence should not have been allowed that could reduce the chance of a conviction at retrial, then there is an interest in allowing that person to stay out on bail.”

Mr. Cosby, who has denied sexually abusing any of the women, is currently free on $1 million bail, though he is confined to his suburban Philadelphia home and has to wear a GPS monitoring device. After Mr. Cosby’s conviction, prosecutors had immediately asked for his bail to be revoked, but Judge O’Neill said he did not view Mr. Cosby as a flight risk, one of the criteria weighed in such a decision. Legal experts said it was generally uncommon in Pennsylvania for offenders to be allowed to remain free on bail, pending appeal, after a judge had sentenced them to incarceration.

Mr. Cosby was convicted on these three counts: penetration with lack of consent, penetration of the victim while she was unconscious, and penetration after administering an intoxicant. The New York Times reviewed state sentencing data for 121 cases over the past five years in which the most serious conviction was for at least one of those three counts. Mr. Cosby is far older than all of the others convicted. Their median age was 36, though in a few cases, the offender was in his late 60s.

A vast majority of the offenders also received fewer than 10 years, with a median sentence of two to five. But there were several cases in which judges gave maximum sentences of 20 years or more to offenders who had been convicted on multiple counts of aggravated indecent assault, or a single count in tandem with other, lesser crimes.

In some of those cases, the judge eschewed a common practice of making multiple sentences concurrent and instead ruled that they be served consecutively. In another case, the person qualified for a more severe sentence because he was viewed as a repeat offender under Pennsylvania’s sex offender laws.

Mr. Cosby had never before been convicted of a crime, and his team is expected to argue that his three counts should be merged into a single count, a decision that would mean that he would face a prison term of no more than 10 years.

Prosecutors have asked that an unspecified number of women who have accused Mr. Cosby of sexually assaulting them be allowed to testify at the sentencing hearing, a move that one of Mr. Cosby’s lawyers, Joseph P. Greene Jr., is trying to block. But Ms. Constand will certainly be allowed to speak at the hearing, as will Mr. Cosby, if he so chooses. The person being sentenced usually has the last word.

Mr. Jacobs, the former federal prosecutor, said that even if none of the other women were allowed to speak, he had to believe that the number of accusers who say Mr. Cosby preyed on them for decades would be an important factor in Judge O’Neill’s thinking. One purpose of sentencing in such a high-profile case can be to send a message that might deter others, he said. “The judge would have to be conscious of the fact that this is one of the earliest sentences in the Me Too era,” Mr. Jacobs said.

Judge O’Neill declined to comment for this article. But Dennis McAndrews, a Pennsylvania lawyer who has known the judge since they attended Villanova University School of Law together, said he did not expect Judge O’Neill to have any problem navigating the maze of factors in this sentencing. “He has been a judge for 14 years,” Mr. McAndrews said, “and in terms of experience and temperament, he has got all the tools necessary to assimilate and synthesize every piece of information that will come before him.”

Prior related posts:

September 20, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Monday, September 17, 2018

SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"

Guest-postsI am very grateful that Wayne Logan, the Gary & Sallyn Pajcic Professor of Law at Florida State University and the author of Knowledge as Power: Criminal Registration and Community Notification Laws in America (Stanford Univ. Press, 2009), reached out to offer me an original commentary on a case to be heard by the Supreme Court next month.  Here it is:

Herman Gundy, convicted of providing cocaine to a young girl and raping her, is a decidedly unlikely emissary in conservatives’ campaign to dismantle the administrative state.  In Gundy v. United States, to be argued the first week of the Supreme Court’s coming term, the Justices will address whether Congress violated the “non-delegation doctrine” when it directed the U.S. Attorney General to decide whether the federal Sex Offender Registration and Notification Act (SORNA) should apply to individuals convicted before its 2006 enactment.  Gundy, whose rape conviction was in 2005, has a dog in the fight because the attorney general made SORNA retroactive, and Gundy was convicted of a felony under SORNA after he traveled interstate in 2012 without informing authorities.

The Court’s decision to hear Gundy’s case came as a major surprise.  The Justices have not invalidated a congressional delegation in over eighty years and all eleven federal appellate courts addressing the issue have concluded that the delegation was proper.  At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.

If this occurs, it would be ironic.  Conservatives usually tout people like Gundy as poster boys for tough-on-crime policies, such as SORNA, which was enacted by a Republication Congress, signed into law by Republican President George W. Bush, and made retroactive by his attorney general (Alberto Gonzales).  Meanwhile, liberals, often fans of the administrative state, in areas such as environmental protection and workplace safety, tend to voice concern over such heavy-handed criminal justice initiatives.

On the merits, Gundy appears to have a strong claim.  For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application.  With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.

Whether SORNA should apply retroactively is the kind of basic policy question that democratically accountable members of Congress should decide.  But they punted, for obvious political reasons.  The House and Senate could not agree on retroactivity and, when states later provided the attorney general input on SORNA’s possible retroactivity to their own registries, many vigorously objected to retroactivity.

Regardless of whether registration and notification actually promote public safety, which research has cast doubt upon, federal policy on the issue has long been marked by overreach.  Since 1994, when Congress first began threatening states with loss of federal funds unless they followed its directives, federal involvement has rightly been viewed as both foisting unfunded mandates upon states and a ham-fisted effort to policy-make in an area of undisputed state prerogative: criminal justice policy.

When Gundy is argued and decided Justice Neil Gorsuch will likely play a key role.  As a member of the Tenth Circuit Court of Appeals, then-Judge Gorsuch wrote a lengthy dissent from his colleagues’ refusal to reconsider en banc their decision that the SORNA delegation was proper.  Gorsuch advocated a requirement of heightened guidance in criminal justice delegations, justified by the unique “intrusions on personal liberty” and stigma of convictions.  There is considerable appeal to Justice Gorsuch’s view, which the Court itself suggested in 1991.  Moreover, unlike other policy areas, such as environmental quality and drug safety, criminal justice typically does not require scientific or technical expertise, lessening the practical need for delegations in the first instance.

Ultimately, the Court might conclude, with justification, that the SORNA delegation was invalid because it lacked any “intelligible principle.”  On the other extreme, as Justice Thomas might well urge, the Court could outlaw delegations altogether.  Chief Justice Roberts, in a dissent joined by Justice Alito, recently condemned the “vast power” of the administrative state, and Court nominee Judge Brett Kavanaugh has signaled similar antipathy.  Meanwhile, it is hard to say how the Court’s liberals will vote, given the conflicting interests at work.  Time will tell how the dynamic in Gundy plays out but the uncertainty itself provides yet more evidence of the high stakes involved in filling the Court’s current vacancy.  

September 17, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, September 09, 2018

"Sex Offenders, Custody and Habeas"

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

Habeas Corpus is lauded as the ultimate bastion of protection for individual liberty.  It is often the last opportunity criminal defendants have at their disposal to unshackle themselves from a criminal conviction or sentence.  Despite the rhetoric surrounding habeas corpus, legislative efforts to limit access to habeas review are well known and have become pervasive.  However, at least one aspect of these limitations has traditionally been given very liberal interpretation by the courts.  The requirement that the habeas petitioner be in custody in order to be eligible for habeas review has been given broad definition.  The courts have not required that an individual be physically held in order to satisfy the custody requirement.  In a series of cases, the courts have determined that everything from parole, to probation, to an OR bond pending trial satisfy the statutory requirement of custody.  However, the courts have uniformly refused to extend this liberal interpretation of custody to individuals subject to statutory sex offender requirements.

This Article argues that the requirements imposed on sex offenders are at least as onerous and burdensome as those imposed on parolees, probationers and those on bond awaiting trial. In many cases, the sex offender requirements are considerably more arduous.  The Article discusses the history and evolution of the custody requirement and its application to sex offender cases.  Using specific examples of cases where individuals subject to the sex offender requirements have suffered tangible and intangible restrictions on liberty and have failed to obtain relief in the courts, the Article argues that the courts have failed to consider the actual implications of these restrictions. Social science research on the collateral consequences of sex offender requirements is reviewed.  The Article concludes that courts should re-examine the application of the custody doctrine to sex offenders, acknowledging the actual effects these restrictions have on the liberty interests of the individuals.

September 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Monday, August 20, 2018

Texas jury convicts doctor of raping incapacitated patient ... then sentences him to probation for 10 years

It is sometimes assumed that having juries impose sentences will produce harsher outcomes, but a recent rape case from Texas provides an example of a jury imposing only a non-prison sentence after returning a guilty verdict in a rape case.  This Houston Chronicle story, headlined "Many surprised at sentence for ex-Baylor doctor who raped a Houston hospital patient." Here are some of the details:

When a former Houston doctor was sentenced to probation Friday for raping an incapacitated patient at a county hospital, the punishment surprised defense attorneys, disappointed law enforcement, elicited concern from a rape victims advocacy group and sparked outrage on social media.

The doctor, who has been stripped of his license, admitted during the trial that he had sexual contact with the woman during the night shift at Ben Taub Hospital in 2013, but told jurors it was consensual. Although he was not assigned to her case, he slipped into her room anyway after he noticed her breast implants....

The jury five women and seven men sentenced Dr. Shafeeq Sheikh, a former Baylor College of Medicine resident, to 10 years on probation for raping the patient while she was tethered to machines and receiving treatment for an acute asthma attack.

The jurors found Sheikh guilty Thursday after deliberating for 14 hours over two days.  The conviction means Sheikh, 46, must be a registered for the rest of his life as a sex offender. Jurors recommended the 10-year probated sentence for the doctor and suspension of a $10,000 fine after deliberations on Friday, recommendations that visiting Senior District Judge Terry L. Flenniken was required by law to follow.

During argument for the sentencing phase of the trial Friday, Assistant District Attorney Lauren Reeder asked jurors to keep in mind that Sheikh exploited his access to harm a vulnerable person. “He sought her out. He chose her to prey on,” Reeder said, noting that Sheikh checked the woman’s chart and knew exactly what medicines she had been prescribed. “You know he’s the type of man who would go in multiple times, testing the waters, seeing how far he could go and get back to his normal business after that.”...

Sheikh’s defense lawyer, Stanley Schneider, asked the jury to have mercy on a man whose wife and children had suffered greatly from his actions and who had been punishing himself for five years for this one shameful, erratic act. He said he hoped they would sentence Sheikh, who has no prior felonies, to probation. “The dreams of a man, the childhood dream to become a doctor, were shattered by his conduct. He destroyed his own dreams,” Schneider said. “What he has done to himself and his family is punishment. They are serving his sentence with him. His children are serving his sentence with him.”...

Prosecutors respect the process that rendered the result, said Dane Schiller, a spokesman for District Attorney Kim Ogg. “After being presented all the evidence, the jury convicted this man of rape and decided that he should be sentenced to 10 years of probation,” Schiller said. “The jury voted on behalf of the community to determine his sentence, and although prosecutors sought prison time, we respect this process, and the jury’s decision, which carries with it a lifetime of registering as a sex offender.”...

Both the victim, who is now 32, and the former doctor took the stand during the eight-day trial, providing contradictory accounts of what happened the night of Nov. 2, 2013. The victim said a doctor came to her bedside in the dark and began touching her breasts during a chest exam. She said she was weak, sore and confused, and tried to summon a nurse with the call button. The man returned two more times, and raped her without using a condom.

Sheikh said the patient took his hand and placed it on her breasts. He was intrigued by her breast implants and returned to her room again. At this point, he testified, she began touching his genitals and demonstrated with her body language that she wanted to have sex with him. He said he knew it was a breach of his marriage vows and the Hippocratic oath, but he succumbed to his impulse. He told jurors he understood that it was consensual sex....

One factor that could have impacted what some saw as a lenient sentence was the testimony from his wife, brother and family friends, who spoke about his vital role as the father of four children. Attorney Paul Schiffer, a former prosecutor who has devoted more than four decades to defending people charged with sex offenses, said he thought Sheikh was fortunate.  “Defendants who take the stand and deny they’re guilty statistically are in a worse position to get probation,” Schiffer said. “But various factors, including their history while on bond and the impact incarceration could have on their own children can be a significant factor.”

He and Kiernan, who also defends people accused of rape, said it also may have been the case that jurors had residual doubt about his culpability. Kiernan suggested there was another important factor jurors may have mulled over. “The real question is whether the best interest of the defendant and society are served by sentencing him to the penitentiary,” he said.

In trying to understand this outcome, I wonder if the jury might also have been influenced by the fact that the defendant here is subject to a lifetime on the sex offender registry.  (I assume Texas law allows the jury to be informed of this fact; judges certainly know this fact when deciding on a sentence in a serious sex offense case.)

August 20, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (12)

Friday, August 17, 2018

New research finds racial bias infects sex-offender classification system under SORNA

A helpful reader made sure I did not miss this Crime Report piece headlined "Sex Offender Registration Influenced by Racial Bias, Ohio Study Claims." Here are excerpts:

The classification of sex offenders based on the risks they pose to the community following their release from prison is subject to racial bias, according to a study published in the Criminal Justice Policy Review.  African-American sex offenders were found to be two-and a half times likelier to be inaccurately designated as high-risk than their Caucasian counterparts by a state-sponsored risk-assessment instrument, said the study, which was based on a sample of 673 sex offenders in the state of Ohio who were convicted of a sex crime and released between 2009 and 2011.

Risk assessments that were overly weighted towards prior criminal records led to the skewed assessments, argued the authors, Bobbie Ticknor of Valdosta State University, and Jessica J. Warner of Miami University Regionals.  “Approximately 85 percent of the individuals classified in the highest tier, who theoretically posed the greatest danger, did not have a conviction for a new sex offense after the five-year follow up period,” the study found, adding that 15 percent of “Tier 1” offenders were under-classified, meaning their threat-level was underestimated.

The sample was limited to offenders who had received a classification under the Sex Offender Registration and Notification Act (SORNA) system established by the 2006 Adam Walsh Child Protection and Safety Act.  The law established guidelines aimed at protecing communities from convicted sex offenders who might pose continued threats to their community following release. SORNA is an offense-based classification system where offenders are assigned to one of three tiers according to “dangerousness.”  Tier designation is determined by prior offenses and the severity of the charge and conviction.... 

The reason why racial bias may influence the accuracy of SORNA designations lies in the fact that SORNA relies heavily on the criminal history of an individual, said the authors. The study cites prior research which produced evidence that “black defendants are less likely to accept a plea deal due to mistrust in the system…”  Going to trial increases the chances of being found guilty of more severe charges and receiving lengthier sentences, especially for minority defendants, according to the authors.

The study being discussed here is available at this link and is published under the title "Evaluating the Accuracy of SORNA: Testing for Classification Errors and Racial Bias." Here is its abstract:

Since its enactment in 2006, several researchers have explored whether the Sex Offender Registration and Notification Act (SORNA) classification system under the Adam Walsh Act improves outcomes such as increasing public safety and lowering recidivism of sexual offenders.  This study adds to the growing body of literature by exploring how accurate this offense-based classification system is in terms of recidivism and if there is any racial bias in tier designation.

Specifically, results from contingency analyses suggest that several sex offenders are overclassified, meaning that they were given a classification status that included more supervision and oversight although they did not commit another offense. Furthermore, African Americans were two-and-a-half times more likely to be overclassified than Caucasians which suggests racial bias may exist in this government-sponsored classification system.  Implications for communities and the continued use of the SORNA are presented.

August 17, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, August 02, 2018

"The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith now available via SSRN. Here is its abstract:

The United States Supreme Court’s decision in Packingham v. North Carolina announced that people who have been convicted of sex offenses have a First Amendment right to access social media platforms.  In reaching its conclusion, the Court reasoned that the public square — and the communicative activity that the First Amendment protects — now exists on these platforms “in particular.”

Despite Packingham’s promise of free speech for arguably the most despised, feared, and misunderstood group of people in America, it did not directly address ways in which both the state and private actors keep Packingham’s beneficiaries in digital darkness.  As the rolls of America’s sex offense registries swell to near one million people in 2018, sustained exclusion from platforms that society increasingly relies on for civic engagement functionally cripples the ability of an enormous population of people to reintegrate, participate, and effectively challenge laws and policies that target them long after they have exited the criminal justice system.  Far from being dangerous or illicit, the voices of people directly impacted are necessary to properly balance a system which has all but foreclosed redemption, and thus their inclusion gives life not only to the values at the heart of Packingham, but to our conception of justice as well.

August 2, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (3)

Monday, July 23, 2018

"Beyond Strict Scrutiny: Forbidden Purpose and the 'Civil Commitment' Power"

The title of this post is the title of this new paper that I just noticed on SSRN that was authored by Eric Janus. Here is the abstract:

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration.  Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny.  Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls.

This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence.  Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as forbidden purpose cases, a construct that is familiar in many areas of the Court’s constitutional analysis.  But the Court’s civil commitment cases tie the search for punitive purpose to another genre of constitutional analysis, the application of the substantive boundaries on governmental power most commonly associated with the specific grants of federal power.  In contrast to the normal conception of state power as plenary, limited only by the specific constraints of the bill or rights and the amorphous limits of "substantive due process," the Court has posited a narrowly limited "civil commitment" power. The search for the forbidden purpose maps directly onto the inquiry into the limits of this discrete and special state power.  Finally, the article argues that the forbidden purpose/discrete power analysis provides clarity on another vexing issue, the facial/as-applied distinction.

July 23, 2018 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Thursday, July 19, 2018

"Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data"

The title of this post is the title of this new paper authored by Tamara Rice Lave and Franklin Zimring now available via SSRN. Here is its abstract:

This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility. 

The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws.  The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger.  It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age.  Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders

July 19, 2018 in Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

"Why Can’t We Redeem the Sex Offender?"

The title of this post is the title of this revised commentary appearing at The Crime Report.  Here are excerpts:

When large nonprofit organizations otherwise committed to making the American justice system less draconian hire people with violent criminal records, they send a strong message that justice-involved people change, and are capable of not only reentry but success.

But these same organizations do not have anyone on the sex offender registry on staff, regardless of qualifications or demonstrated rehabilitation.

This is unsurprising, yet tragic.  When most people think of “sex offenders,” they imagine repulsive and heinous crimes against very young children.  And in 2005, a Gallup poll suggested that Americans feared terrorists less than sex offenders.

In reality, the phrase “sex offender” describes any person convicted under a statute that requires sex offender registration, which lasts anywhere from 10 years to natural life, depending on the state and the offense.  The registry includes everyone from the mentally ill, remorseful flasher to the sexually-motivated killer, as well as the older party in a high school sweetheart relationship to a dangerous child rapist.  There are almost one million Americans on sex offender registries, including people convicted for relatively minor sex crimes as children.

And what might sound like a heinous crime based on the name alone, like the production of child pornography, can describe what Edward Marrero faces prosecution for in federal court. Mr. Marrero admitted in court that he took sexual photos of his 17-year-old girlfriend when he was only 20 years old himself.  Marrero now faces 15-to-30 years in federal prison for photos of a relationship that would be legal virtually everywhere in the world.

It is important for directly impacted people to have a say in efforts intended to help them.  For example, the American Civil Liberties Union (ACLU) has pushed against employment discrimination against those with criminal records, and has more recently has hired highly qualified people who have committed serious crimes in their pasts.  But the ACLU appears to not have a single person on the registry as a part of any branch’s staff.

Is a close-in-age relationship between a young adult and a teenager morally worse than murder, kidnapping, or robbery?  What about teen sexting?  No, and the absolute dearth of otherwise-qualified sex offenders in criminal justice reform careers shows how far we have titled the scales from reality.

Criminal justice reform organizations should be able to ask these questions and answer them realistically, without putting too much credence in the byzantine and cruel state of American sex laws.  After all, we know better than anyone that the law is not always what is right.  Let us hire sex offenders when we believe in them.

July 19, 2018 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

Wednesday, June 20, 2018

"Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders"

The title of this post is the title of this new paper available via SSRN authored by Ben McJunkin and J.J. Prescott.  Here is its abstract:

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices.  Many offenders will be monitored for life.  The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree.

In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance.  Grady left open the question whether the search — and the state’s technological monitoring program more generally — was constitutionally reasonable.  This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.

June 20, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections | Permalink | Comments (3)