Sentencing Law and Policy

Lots of notable front page sentencing issues in next week's sentencing of Backpage

I have not closely followed the legal sagas that have surrounded the website Backpage, which was the huge classified advertising website shut down and seized by federal law enforcement in April 2018.  But next week the Backpage saga has a federal sentencing stage, and this Law360 piece provides a flavor for just some of the issues raised:

Prosecutors asked an Arizona federal judge Monday to sentence two former executives of the defunct classifieds service Backpage.com and the site's co-founder to 20 years in prison after they were found guilty of several counts over an alleged $500 million prostitution scheme.

In a sentencing memorandum, prosecutors said the crimes former executives Scott Spear and John Brunst and Backpage co-founder Michael Lacey were convicted of caused extraordinary harm and amounted to "one of the internet's largest and longest-running criminal empires."

Prosecutors say the website facilitated prostitution through ads. Spear and Brunst were convicted of multiple counts after a 28-day trial in November while two other executives were acquitted. Lacey was found guilty of one count of money laundering; the jury was deadlocked on dozens of other charges against him. The mixed verdict ended a sprawling case that saw its first trial end in a mistrial in 2021....

In April, U.S. District Judge Diane J. Humetewa rejected some of the jury's findings, tossing nearly three dozen transactional money laundering charges, as well as Travel Act charges against Lacey, but kept the rest of the verdict intact. Sentencing is scheduled for Aug. 27 and 28. Prosecutors said Monday they were "unaware of any mitigating circumstances" for the purposes of sentencing. Spear, Brunst and Lacey showed no remorse following their convictions, prosecutors said.... The prosecutors argued that victim impact statements submitted to the court don't fully encapsulate the harm Backpage inflicted, saying some trafficking victims were killed by perpetrators who found them on the site.

Lacey, Spear and Brunst all requested probation in their own sentencing memorandums filed Monday, arguing that they never intentionally broke the law. Lacey claimed that his only felony conviction was for a "financial crime that he purportedly committed upon the idea and advice of two credentialed lawyers, wherein all reporting rules were followed."....

Spear similarly said in his memorandum that his actions were in line with a law-abiding life.... Brunst said he was never employed by Backpage, but rather worked for Village Voice Media Holdings starting in 1992 and later at Medalist Holdings, a successor entity after VVMH sold its newspapers.

Over at Reason, the arguments surrounding one defendant get extra attention in a piece here headlined "Feds Seek 20-Year Sentence for Backpage Co-Founder Michael Lacey; It's an insane ask for someone convicted of just one nonviolent offense." Here is an excerpt:

Lacey was charged — along with other former Backpage executives — of using Backpage to knowingly facilitate prostitution, in violation of the U.S. Travel Act.  Two of the defendants were acquitted of all such offenses and two of the defendants were found guilty of some of them. But the jury could not reach a conclusion when it came to Lacey. U.S. District Judge Diane Humetewa found there was insufficient evidence to sustain most of the remaining 84 counts against him.

Now, prosecutors want the judge to simply act, for sentencing purposes, as if those charges are all true. Federal prosecutors are also putting Lacey on trial for these charges again — which means that if he is eventually convicted, he could wind up being sentenced twice for the same conduct.

This case and these defendants have many more notable elements, and I found reviewing some of the sentencing memoranda fascinating — eg, the government's memo reports that the PSR recommended 1080 months (90 years) for Spear, who is 73 years old.  Here, thanks to Law360, are the sentencing submissions:

•  US Memo
•  Spear Memo
•  Lacey Memo
•  Brunst Memo

Second Circuit panel finds unreasonable 10-year prison sentence for federal prison guard who repeatedly raped inmate

I missed while on the road the notable Second Circuit panel ruling last week in US v. Martinez, No. 22-902-cr (2d Cir. July 30, 3034) (available here).  Though I do not keep up with all reasonableness rulings in circuit courts, I still believe it remains rare for federal circuits to find sentences unreasonable on appeal.  But Martinez is a case that lead to finding of both prosecural and substantive unreasonableness, and here is how the lengthy panel opinion starts:

Defendant-Appellant-Cross-Appellee Carlos Martinez, a former federal prison guard, was convicted after two jury trials in the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) of a number of charges stemming from his repeated rape of an inmate, whom the parties refer to as “Maria,” at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York.  At both trials, Maria testified that Martinez raped her on five occasions while she was assigned to clean his office on weekends when that area was largely deserted. She testified that Martinez repeatedly sexually assaulted her by force (by physically holding her down) and threats and fear (by, for example, threatening to send her to a special housing unit (“SHU”) and warning her that fighting back would result in charges for assaulting an officer).

The jury at Martinez’s first trial found him guilty of five counts of sexual abuse of a ward, in violation of 18 U.S.C. § 2243(b) — one count for each rape. It also found him guilty of a number of other counts which were later vacated for reasons that are not at issue in the present appeal. At a second trial, Martinez was retried on fifteen counts arising out of the five rapes.  As to each rape, Martinez was charged with sexual abuse by threats or fear in violation of 18 U.S.C. § 2242(1); depriving Maria of her civil rights in violation of 18 U.S.C. § 242; and aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1).  The jury convicted Martinez of five counts of sexual abuse by threats or fear, 18 U.S.C. § 2242(1).  The jury also convicted Martinez of depriving Maria of her civil rights, 18 U.S.C. § 242, and of aggravated sexual abuse, 18 U.S.C. § 2241(a)(1), but only as to the second of the five charged rapes; it acquitted him on those counts as to the other four incidents.

At sentencing, the district court expressed doubts about Maria’s testimony and later explained in its written statement of reasons that it disagreed with the second jury’s guilty verdicts on the five counts of sexual abuse through threats or fear — despite having previously denied Martinez’s motions for acquittal. The court also made several remarks suggesting that the second jury had not credited Maria’s testimony, even though the jury had returned guilty verdicts on at least one count relating to each of the five charged rapes.  It additionally described Martinez as “not a violent criminal,” Gov’t App’x 226, even though the jury had found beyond a reasonable doubt that, on one occasion, he had forcibly raped Maria.  At bottom, the court appeared to believe Martinez’s defense that he and Maria had engaged in consensual sex, a version of events necessarily foreclosed by the guilty verdicts.  The district court ultimately imposed a prison sentence of ten years, a dramatic variance below the advisory Guidelines range of life imprisonment.

Martinez now challenges the sufficiency of the evidence underlying his two convictions premised on using force to commit the second charged rape. We reject the insufficiency claim, because the jury was entitled to credit Maria’s testimony that Martinez physically restrained her to carry out that particular instance of sexual abuse. Martinez argues that his acquittals on some counts reveal that the jury must have completely rejected the victim’s testimony, but it is well established that a defendant cannot rely on inconsistent verdicts to impugn a conviction, and, in any event, the jury’s guilty verdicts decisively refute any contention that the jury entirely rejected that testimony.

The government cross-appeals Martinez’s ten-year sentence as procedurally and substantively unreasonable. We agree. The district court committed a number of procedural errors: It relied on certain 6 clearly erroneous factual findings that were foreclosed by the jury’s guilty verdicts, or that it mistakenly believed were dictated by the jury’s acquittals on other counts. It mistakenly treated Martinez’s convictions for committing sexual abuse through threats or fear as legally equivalent to committing sexual abuse of a ward, despite the fact that the former offense, unlike the latter, requires the sexual contact to have been without the victim’s consent. And it failed to effectively sentence him based on all of his convictions. The sentence was also substantively unreasonable because the district court gave dramatically insufficient weight to the seriousness of the full range of Martinez’s offenses, and impermissibly gave weight to its residual doubts about the jury’s guilty verdicts as a mitigating factor. We therefore AFFIRM the judgment of conviction and REMAND for resentencing consistent with this opinion.

Michigan Supreme Court finds violation of state constitution in applying sex offender registry to non-sexual offenders

A divided Michigan Supreme Court, splitting 5-2, ruled earlier this week in Michigan v. Lymon, No. 164685 (Mich. Julu 29, 2024) (available here), that its state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  Here is how the majority opinion begins and a few key passages from a lengthy (nearly 50-page) opinion:

Defendant challenges his inclusion on the sex-offender registry under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as cruel or unusual punishment under the Michigan Constitution.  We hold that the application of SORA to non-sexual offenders like defendant is cruel or unusual punishment in violation of the Michigan Constitution....

Although the 2021 SORA bears a rational relation to its nonpunitive purpose and the Legislature has continued to express its intention that SORA constitute a civil regulation, SORA resembles traditional methods of punishment, promotes the traditional aims of punishment, and imposes affirmative restraints that are excessive as applied to non-sexual offender registrants.  Accordingly, we conclude that the 2021 SORA constitutes punishment as applied to non-sexual offenders....

We conclude that the punishment of SORA registration for non-sexual offenders like defendant is grossly disproportionate and accordingly constitutes cruel or unusual punishment under the Michigan Constitution. See Bullock, 440 Mich at 35. Although other jurisdictions similarly include certain non-sexual offenders within their sex-offenderregistry laws, we find that this penalty is unduly harsh as compared to the non-sexual nature of the offense. Further, similar offenses do not result in this same penalty, and the offenses that do result in the same penalty are more severe and have a sexual component.  Accordingly, we conclude that the 2021 SORA constitutes cruel or unusual punishment as applied to non-sexual offenders.

The dissent, authored by Judge Zahra, clocks in at nearly 60 pages and has a multi-page conclusion that starts this way:

It is important to note what the majority opinion is and what it is not.  The majority opinion extends the Michigan Constitution to bar dissemination of accurate information to the public of those who have kidnapped and imprisoned children so that individuals in the community can have the knowledge to lead their lives as they so choose.  In so doing, the majority opinion effectively concludes that the public cannot be trusted with accurate information of convictions, because it may in the view of the majority opinion, unduly shame or burden individuals who were indeed convicted of child kidnapping and imprisonment. Despite being enacted for decades by the federal government and 42 out of 49 other state jurisdictions, this Court concludes that public registration for such offenses does not even reasonably advance the interests of public safety and awareness.  The majority opinion finishes with a conclusion never before reached by Michigan or federal courts: that public dissemination of conviction history, combined with registration requirements to ensure that the information is accurate, is so extraordinary and disproportionate to defendant’s offense of violently imprisoning children while they plead dearly for their lives and the life of their mother amounts to cruel or unusual treatment.  This is an extreme conclusion that will severely hinder this state from publicly recording and registering those who kidnap, abuse, or imprison children.

How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing

I have blogged in the past about how the Supreme Court's ruling in Kisor v. Wilkie, which recast for federal courts the deference they give to agencies in construing agency regulations, has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  A helpful reader made sure I did not miss the he latest variation on these themes from a panel decision by the Third Circuit in US v. Haggerty, No. 23-2084 (3d Cir. July 9, 2024) (available here). Here is how it begins: 

In imposing a sentence on a defendant who has been found guilty of a child pornography-related offense, a district judge is required, under the United States Sentencing Guidelines, to enhance the applicable Guideline Sentencing range based on the number of “images” “involved” in the offense.  Specifically, under U.S.S.G. § 2G2.2(b)(7)’s graduated sentencing enhancement scheme, that defendant’s Guideline Sentencing range may be enhanced by up to five levels based on the number of images involved.

The calculus is a simple one where the pornographic matter consists only of “still” images. But what about when a moving image — that is, a video — is involved in an offense? The Guideline itself does not answer that question.  So may the judge look to the Commentary to the Guideline, which specifies that each video — no matter its length — constitutes 75 images for purposes of calculating the applicable sentencing enhancement? Whether we should defer to this commentary is the issue we now confront.

We hold that “image,” in the moving picture or video context, unambiguously means “frame.”  Deference to the Commentary’s 75-images rule is therefore unwarranted under Kisor v. Wilkie, 588 U.S. 558 (2019). Instead, the number of frames comprising a moving picture or video will determine the specific sentencing enhancement that a District Judge must apply.  Because the case before us involved videos with over 14,000 total frames, Haggerty probably possessed the requisite number of images to warrant a five-level enhancement under the Guideline.  But because the District Court did not use the frame-counting calculus we now hold is the correct one, we will vacate the District Court’s sentencing order and remand for resentencing in a manner consistent with our holding

Notable Washington Post "Abused by the badge" investigation includes notable data on sentencing outcomes

The Washington Post today released a series of remarkable pieces as part of an investigative series it calls "Abused by the badge."  The subheadline of this main piece summarizes the main themes: "A Washington Post investigation found hundreds of law enforcement officers in the United States have sexually exploited kids. Many avoid prison time."  Here are additional links to the newest pieces in the series:

• "An officer sexually abused a teen in his police car. How will he be punished?"
• "How The Post investigated police officers accused of sexually abusing kids"
• "Read the responses from convicted police officers and their agencies"

This Reason piece about the Post's findings helpfully summarizes some of the key sentencing stories:

The investigation revealed a staggering lack of accountability for officers who sexually abuse minors — finding not only that convicted officers often received paltry sentences, but that police departments sometimes rehired officers with child sex abuse convictions.

The Post's analysis looked at thousands of court filings, as well as The Henry A. Wallace Police Crime Database, the county's most comprehensive database of police arrests.  The authors found that, between 2005 and 2022, around 17,700 police officers were charged with crimes — and 1 in 10 of those were charged with a crime involving the sexual abuse of minors.

The crimes officers were charged with varied, though most charges were for a few specific offenses. According to the Post's analysis, 39 percent of officers charged with child sexual abuse crimes were charged with rape.  Twenty percent were charged with crimes related to child sexual abuse material (another term for child pornography) and 19 percent were charged with forcible fondling.

Eighty-three percent of charged officers were convicted.  However, only 61 percent of convicted officers received prison time.  Fifteen percent received local jail sentences, and a striking 24 percent received sentences as light as probation, fines, and community service.  But even those imprisoned received relatively light sentences. Half were sentenced to less than five years in jail.

Why did so many officers seem to get off easy for heinous sex crimes?  According to the Post, it comes down to how prosecutors and judges treat police officers. "Prosecutors have broad discretion in the types of charges they bring, the plea bargains they offer and the cases they are willing to take to trial," the Post's analysis reads. "Judges play a critical role at sentencing hearings in determining what punishment officers deserve."

Because there is no national data about sentencing outcomes in cases involving other types of persons sexually abusing minors, it is impossible to compare the outcomes detailed by the Post for officers to other sets of offenders.  But the Post's suggestion that these officer offenders are being treated relatively leniently seems sound.  And many might reasonably argue that secual abuse of a minor committed my an officer ought to lead to even harsher punishment than would be given to other offenders, especially if the officer used his position to facilitate the crime.

Louisiana legislature passes law authorizing surgical castration as punishment for child sex crimes

As reported in this AP article, "Louisiana judges could order surgical castration for people convicted of sex crimes against young children under legislation approved Monday, and if Republican Gov. Jeff Landry signs it into law, the state apparently would be the first with such a punishment."  Here is more:

The GOP-controlled Legislature passed the bill giving judges the option to sentence someone to surgical castration after the person has been convicted of certain aggravated sex crimes — including rape, incest and molestation — against a child under 13.

A handful of states — including California, Florida and Texas — have laws in place allowing for chemical castration. In some of those states, offenders can opt for the surgical procedure if they prefer. Bu the National Conference of State Legislatures said it is unaware of any states that allow judges to impose surgical castration.

For more than 16 years, judges in Louisiana have been allowed to order those convicted of such crimes to receive chemical castration, though that punishment is rarely issued. Chemical castration uses medications that block testosterone production to decrease sex drive. Surgical castration is a much more invasive procedure....

Currently, there are 2,224 people imprisoned in Louisiana for sex crimes against children younger than 13. If the bill becomes law, it can only be applied to those who have convicted a crime that occurred on or after Aug. 1 of this year....

If an offender “fails to appear or refuses to undergo” surgical castration after a judge orders the procedure, they could be hit with “failure to comply” charge and face an additional three to five years in prison, based on the bill’s language. The legislation also stipulates that a medical expert must “determine whether that offender is an appropriate candidate” for the procedure before it’s carried out.

Louisiana’s current chemical castration law has been in place since 2008 but officials said from 2010 to 2019, they could only find one or two cases where it was used.

Tennessee now second state to allow death penalty for child rape since SCOTUS prohibition

I noted last month in this post that the Tennessee legislature has passed a bill authorizing the death penalty for those convicted of rape of a child.  This new AP piece reports that this bill is now law:

Tennessee Gov. Bill Lee has approved legislation allowing the death penalty in child rape convictions, a change the Republican-controlled Statehouse championed amid concerns that the U.S. Supreme Court has banned capital punishment in such cases. Lee, a Republican, quietly signed off on the legislation last week without issuing a statement.

The new Tennessee law, which goes into effect July 1, authorizes the state to pursue capital punishment when an adult is convicted of aggravated rape of a child.  Those convicted could be sentenced to death, imprisonment for life without possibility of parole, or imprisonment for life.

Florida’s Gov. Ron DeSantis enacted a similar bill nearly a year ago....  Meanwhile, Idaho’s GOP-controlled House approved similar legislation earlier this year, but the proposal eventually stalled in the similarly Republican-dominated Senate.

While many supporters of Tennessee’s version have conceded that even though the Volunteer State previously allowed convicted child rapists to face the death penalty, the U.S. Supreme Court ultimately nullified that law with its 2008 decision deeming it unconstitutional to use capital punishment in child sexual battery cases.

However, they hope the conservative-controlled Supreme Court will reverse that ruling — pointing to the decades long effort that it took to overturn Roe v. Wade, the landmark 1973 case that legalized abortion nationwide but was eventually overruled in 2022.  “Maybe the atmosphere is different on the Supreme Court,” said Republican Sen. Janice Bowling last month while debating in favor of the law. “We’re simply challenging a ruling.”

Lee told reporters Tuesday that he didn’t sign the bill hoping it would be “tested” in court.  Instead, he said crimes against children are “some of the most heinous that there are.”...

Currently, all executions in Tennessee are on hold as state officials review changes to its lethal injection process.

Prior related posts:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy? 
• Possible Florida test case for new capital child rape statute now in the works 
• First capital child rape charge under new Florida law results in LWOP plea and sentence 
• Tennessee poised to become second state to authorize the death penalty for child rape since SCOTUS prohibition

Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration

Joe Biden campaigned on a pledge to work toward abolishing the death penalty, and the federal death penalty has been mostly (though not entirely) dormant during his time in office.  No federal executions and very few new federal capital cases have moved forward during his time in office.  (And while a President has almost no means to impact or even influence state capital practices, it is also notable that there have been relatively few state executions and state death sentences since 2021 as well.)  Though I doubt President Biden plans to make much of his capital punishment record in his re-election bid — especially because many in his base likley wish he would do more to advance abolition — I sense his approach to the death penalty would be largely the same if he were to get a second term in the Oval Office.

In contrast, and as highlighted by this new HuffPost piece, federal death penalty administration is surely likely to shift gears dramatically if we have another Trump Adminstration.  This piece's full headline highlights its coverage: "There's A GOP Plan For An Execution Spree If Trump Wins The White House: Buried on page 554 of the plan is a directive to execute every remaining person on federal death row — and dramatically expand the use of the death penalty."  Here are excerpts:

Trump, the GOP’s presumptive 2024 presidential nominee, has openly fantasized about executing drug dealers and human traffickers.  He reportedly suggested that officials who leak information to the press should be executed, too.  And behind the scenes, there’s a team of pro-Trump conservatives who are pushing for a second Trump term that involves even more state-sponsored killing than the first.

Last year, a coalition effort by conservative groups known as Project 2025 released an 887-page document that lays out policy goals and recommendations for each part of the federal government.  Buried on page 554 is a directive to execute every remaining federal death row prisoner — and to persuade the Supreme Court to expand the types of crimes that can be punished with death sentences.

Gene Hamilton, the author of the transition playbook’s Department of Justice chapter, wrote that the next conservative administration should “do everything possible to obtain finality” for every prisoner on federal death row, which currently includes 40 people.  “It should also pursue the death penalty for applicable crimes — particularly heinous crimes involving violence and sexual abuse of children — until Congress says otherwise through legislation,” he wrote.  In a footnote, Hamilton said that this could require the Supreme Court to overrule a previous case, “but the [Justice] department should place a priority on doing so.”

I have heard of Project 2025, but I am not at all sure how truly impactful its desired blueprints are regarding what we might expect from an actual Trump Administration.  After all, as noted in this post from July 2020, the "Biden-Sanders Unity Task Force" produced a big report calling for, among other items on a criminal-justice reform wish list, the future Biden Administration to: "abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example."  Not only has that not happened, no formal steps have been taken by President Biden to make it happen.

Perhaps the most interesting part of this story relates to the possiblity that a future Trump Administration might seek to actively pursue or support the application of the death penalty in child rape cases.  Current Supreme Court Eighth Amendment doctrine, of course, holds that capital punishment for child rape is unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407 (2008).  But Florida enacted a new capital child rape statute last year, and Tennessee legislators recently sent a similar bill to its Governor.   Given that three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority is on still on this Court, there is strong reason to suspect the current Supreme Court might well be prepared to reconder Kennedy at some point.  That possibility might become even that much more likely if the US Justice Department was actively advocating for Kennedy's reversal.

First capital child rape charge under new Florida law results in LWOP plea and sentence

Nearly a year ago, Florida enacted a new law making certain child rapes a capital offense, and I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?".  Two months ago, as detailed in this  post, Florida prosecutors filed court documents stating its intent to seek the death penalty against Joseph Andrew Giampa after he was indicted on multiple counts of sexual battery on a child under age 12. 

I reacted to this potentially historic capital case by speculating about the possibility of a plea deal to take the death penalty off the table, wondering in particular if prosecutors would agree to such a deal.  This local article reports that such a plea deal was made, and an LWOP sentence was entered last week:

A Leesburg man has been sentenced to life in prison for forcing a young girl to engage in sexual acts.

Joseph Andrew Giampa, 36, through his defense attorney, conveyed an offer to serve the rest of his natural life in prison.  At the request of the victim’s family and with the interests of the child victim in mind, the Fifth Judicial Circuit State Attorney’s Office agreed to this resolution.  Under this agreement, Giampa will spend the remainder of his life in prison without the possibility of parole.

“Resolution in less than 100 days is proof that Florida’s capital punishment statute for sexual battery of children is effective,” commented Fifth Judicial Circuit State Attorney Bill Gladson.  “By passing this law, the Florida legislature and the governor have sent a message that Florida has zero tolerance for those who prey upon our most vulnerable and that the punishment will be certain, swift and severe.”

Last year, investigators found a video on Giampa’s laptop of a female juvenile victim being recorded by an adult man, later identified as Giampa, holding the camera and talking to her.... 

Giampa was indicted by a grand jury in December 2023 for six counts of sexual battery upon a person under 12 years of age and three counts of promoting a sexual performance by a child.  Shortly after Giampa was indicted, Gladson filed a notice of intent to seek the death penalty in the case pursuant to Florida Statutes 794.011(2)(a) and 921.1425, both of which pertain to the death penalty regarding sexual battery as a capital felony.

I am not too surprised that this case was resolved through an LWOP plea deal, which is not uncommon in capital cases when there is no dispute over guilt.  I am also not surprised that the victim’s family here was eager to have this case resolved through a plea deal rather than risk having the young rape victim grow up with her rape and rapist the center of legal appeals and debates for years.  So now we are back to waiting and wondering when and how Florida will secure a child rape death sentence that could provide an opportunity for SCOTUS to reconsider its Kennedy ruling that such a sentence violates the Eighth Amendment.

Prior related post:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy? 
• Possible Florida test case for new capital child rape statute now in the works 

Possible Florida test case for new capital child rape statute now in the works

Almost eight months ago, I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?"  In that post, I wondered aloud "about the facts of any 'Kennedy test case', [and] how long it might take to get to SCOTUS."  As reported in this recent press peice, we now have a a possible test case getting started: 

In a first for the state of Florida, prosecutors in the Sunshine State will be pursuing capital punishment against a man accused of raping a child where no death occurred under a new law that runs counter to the U.S. Supreme Court’s current Eight and Fourteenth Amendment precedent.

The Fifth Judicial Circuit State Attorney Office on Thursday filed court documents stating its intent to seek the death penalty against 36-year-old Joseph Andrew Giampa, who was indicted by a grand jury on six counts of sexual battery on a child under age 12 and three counts of promoting a sexual performance of a child. According to a news release from the state attorney’s office, prosecutors want to put Giampa to death due to “the severity of the crime and its impact on the community.”

The notice filed in Lake County Circuit Court lists numerous aggravating factors, which prosecutors say implore the state to seek the death penalty. Such factors include that the crime was committed for “pecuniary gain,” it was “especially heinous,” the victim was “particularly vulnerable,” and Giampa had previously been convicted of a violent felony....

According to a probable cause affidavit obtained by Law&Crime, authorities responded on Nov. 2 to Giampa’s home about a possible sexual battery. Once there, deputies detained Giampa. In his camper, deputies said there was a computer with a video showing an adult sexually assaulting a child under 12. After the sexual assault, the assailant who was recording the attack “set the camera down” and then “walked in front of the camera.” Authorities said the adult male in the recording was Giampa. Giampa then sexually assaulted the juvenile several more times as the video continued before exiting the room as “the juvenile victim begins cleaning up in view of the camera.”

The case is certain to pose constitutional challenges as the legislation adopted and signed by Gov. Ron DeSantis earlier this year is patently contra to the Supreme Court’s 2008 case Kennedy v. Louisiana, which prohibits the death penalty as punishment “where no life was taken in the commission of the crime.”...

Of the four justices who dissented — Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas — three are still on the court, while all five of those who voted in the majority have been replaced, predominantly by justices whose overall judicial ideology is far more right-leaning.

The legislation’s text explicitly states that the high court’s earlier rulings on death penalty prohibitions were “wrongly decided and that such cases are an egregious infringement of the states’ power to punish the most heinous of crimes.”

DeSantis already released a statement indicating his intent to take the case up with the justices. “Today, the State’s Attorney for the Fifth Judicial Circuit announced that they will seek the death penalty in a case of sexual battery against a child under age 12,” he wrote in a Facebook post. “It will be the first case to challenge SCOTUS (U.S. Supreme Court) since I signed legislation to make pedophiles eligible for the death penalty. The State’s Attorney has my full support.”

Because I do not know the intricacies of Florida criminal procedure, I do not know if there are (appealable) means for the defendant here to seek some kind of dismissal/striking of the capital aspect of these charges.  I noted in my prior post that the Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."   But is it really proper for a state judge to entertain and allow criminal charges to move forward contrary to on-point state and federal constitutional law?  (Imagine if New York passed a statute, hoping SCOTUS might change its approach to the Second Amendment since Bruen is proving problematic, that ordered state courts to enforce a problematic gun law "notwithstanding existing case law.")

Whatever the possible procedures at an early stage of Florida's capital litigation, I wonder if the defendant here may be eager to seek to plea given what sounds like damning evidence of guilty.  Indisputably guilty murderers who face capital charges often offer to plead guilty to avoid a possible death sentence, but a prosecutor must be willing to make such a plea deal.  It will be interesting to see if this local Florida prosecutor will want to persistently pursue this capital charge which is certain to come with years and years of litigation.

Prior related post:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy? 

Detailing how sex offenders in New York can imprisoned long past their maximum sentences

The Nation has this notable lengthy new article detailing just how some New York offenders end up incarcerated well past the end of their actual sentences.  The article's full title previews the key points: "They Were Supposed to Be Free.  Why Are They Locked Up?: No one wants a person convicted of a sex offense in their neighborhood.  So New York keeps them in prison long past their release dates."  Here are some excerpts:

[Jory] Smith is one of hundreds of New Yorkers over the past decade whom the state has imprisoned past their maximum sentences, often for months or years.  It’s not because the judicial system is afraid that he’ll commit another crime—a judge had determined that Smith’s “risk of re-offense is low.”  He is caged there, essentially, because he is homeless.

In 2015, Smith was imprisoned for sexually abusing an 8-year-old girl, and state legislation severely restricts where people with such sex-offense convictions are allowed to live.  With few politicians willing to publicly defend people who have been found guilty of sex crimes, authorities have been free to push the boundaries of how to enforce the law.

The state redesignates people convicted of sex offenses who have served their maximum prison sentences as parolees. But unlike others on parole, some of them don’t get released.  They’re kept incarcerated until they can find a legal place to stay or until their parole is up — for Smith, that’s August 2025.  They wear normal prison uniforms.  They abide by prison visitation, meal, and recreation rules. Most sleep in general population units.

Many of them also work a prison job. And the state holds most of their wages in an account that they can access only upon their undetermined and mostly unknowable release date.  For his work assignments, Smith receives between $5 and $10 a week.  He called it “slave wages from slave labor.”

This system of prolonged incarceration started nearly a decade ago—and the number of people subjected to it has increased.  In 2015, it was 37, according to data obtained by Appellate Advocates and shared with New York Focus and The Nation.  By 2017, the number had risen to more than 100, and in the first half of 2019, it was 60 — almost 8 percent of the “parolees.”

New York’s Department of Corrections and Community Supervision, or DOCCS, which runs the state prison and parole systems, wouldn’t offer updated annual numbers but said that, as of late July, it was holding 49 people past their release dates.  In a statement, the department said that it “follows the letter of the law” when it comes to confining people convicted of sex offenses.

Lawmakers have exacerbated the situation. And courts have so far greenlighted the practice — though that could soon change.  A judicial shake-up in New York this year saw one of the few people in power who was willing to criticize it become head of the New York Court of Appeals, the state’s highest court.  And a years-in-the-making lawsuit challenging the practice is set to hit the court’s docket.

That case might be the last hope for change until the politics around sex crimes shift.  “It’s very sensitive — people have very emotional reactions to sex offenders,” said James Bogin, a senior supervising attorney at Prisoners’ Legal Services of New York and part of the team working on the Court of Appeals case.  “The idea that the end of the sentence doesn’t mean anything, that it doesn’t even lead to any change in your circumstance, is pretty unbelievable.”

"The Counterintuitive Consequences of Sex Offender Risk Assessment at Sentencing"

The title of this post is the title of this new article recently posted on SSRN authored by Megan T. Stevenson and Jennifer L. Doleac. Here is its abstract:

Virginia adopted a risk assessment to help determine sentencing for sex offenders.  It was incorporated as a one-way ratchet toward higher sentences: expanding the upper end of the sentence guidelines by up to 300 per cent.  This led to a sharp increase in sentences for those convicted of sexual assault.  More surprisingly, it also led to a decrease in sentences for those convicted of rape.  This raises two questions: (a) why did sentencing patterns change differently across these groups, and (b) why would risk assessment lead to a reduction in sentence length?

The first question is relatively easy to answer.  While both groups saw an expansion in the upper end of the sentencing guidelines, only sexual assault had the floor lifted on the lower end, making leniency more costly.  The second question is less straightforward.  One potential explanation is that the risk assessment served as a political or moral shield that implicitly justified leniency for those in the lowest risk category.  Even though the risk assessment did not change sentencing recommendations for low-risk individuals, it provided a 'second opinion' that could mitigate blame or guilt should the low-risk offender go on to reoffend.  This decreased the risks of leniency and counterbalanced any increase in severity for high-risk individuals.

Rounding up some stories about notable (and different) life sentences

A busy holiday week has kept me from keeping up on all the sentencing news, but some stories about the imposition of some notable (and distinct) life sentences still caught my eye.  Here is a quick round-up of some of these life sentencing stories:

From state court in Iowa, "Fairfield teen sentenced to life in prison for murder of Spanish teacher"

From state court in Kansas, "Former preschool nurse sentenced to life in prison for child sex crimes"

From state court in Maryland, "Man handed life sentence for 2022 murder of Wicomico County deputy"

From state court in Ohio, "Man convicted of raping, impregnating 9-year-old Columbus girl sentenced to life in prison"

From state court in Oregon, "Marion County 19-year-old sentenced to life in prison after drug deal murder"

From federal court in Delaware, "A Delaware Man Sentenced to Life in Prison for a Street Feud that led to Woman's Death and Shooting of 6-Year-Old"

From federal court in Texas, "El Paso Walmart shooter expected to be sentenced on federal charges today after facing dozens of victims’ families and survivors in court"

These sentences are distinct not only because some were imposed in state courts and some in federal courts, but also because some of the state court sentences include the possibility of parole.  And, of course, some of these cases have received lots and lots of media attention and some just generate a single press story.

Prison Policy Initiative shines light on "shadowy form of incarceration" known as civil commitment

The folks at the Prison Policy Initiative have released yet another new effective and informative data report. This new report is titled "What is civil commitment? Recent report raises visibility of this shadowy form of incarceration" and is authored by Emma Peyton Williams.  Here is part of the starting text:

As if serving a prison sentence wasn’t punishment enough, 20 states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence.  Around the turn of the millennium, 20 states, Washington D.C., and the federal government passed “Sexually Violent Persons” legislation that created a new way for these jurisdictions to keep people locked up — even indefinitely — who have already served a criminal sentence for a “sex offense.”  In some states, people are transferred directly from prison to a civil commitment facility at the end of their sentence.  In Texas, formerly incarcerated people who had already come home from prison were rounded up in the middle of the night and relocated to civil commitment facilities without prior notice.  This practice, though seldom reported on, made some news in 2017 when the U.S. Supreme Court declined to hear a case from Minnesota after a federal judge deemed the practice unconstitutional.  The Prison Policy Initiative has included civil commitment in our Whole Pie reports on U.S. systems of confinement, but here we offer a deeper dive, including recently-published data from a survey of individuals confined in an Illinois facility under these laws.

Some advocates call civil commitment facilities “shadow prisons,” in part because of how little news coverage they receive and how murky their practices are.  In Illinois, for example, the Department of Corrections (DOC) facilities are overseen by the John Howard Association, an independent prison watchdog organization.  But Rushville Treatment and Detention Facility, a civil commitment center that opened after Illinois enacted its own Sexually Violent Persons Commitment Act in 1998, is not subject to the same kind of oversight because it is housed under the Department of Human Services and is not technically classified as a prison.  This is true in many states that have “Sexually Violent Persons” laws on their books, and consequently, horrific medical neglect and abuse proliferate in these shadowy facilities. For instance, a New Jersey civil commitment facility was one of the deadliest facilities at the beginning of the COVID-19 pandemic....

A second critique of this system is reflected in another term advocates use to describe it: “pre-crime preventative detention.”  Civil commitment (unlike other involuntary commitment practices, such as for the treatment of serious mental illness) can be seen as “double jeopardy” repeat punishment for an initial crime, or preventative detention for a theoretical future crime that has not occurred.  Advocates rightly critique the fact that one of the primary justifications for civil commitment is the predicted risk that detained individuals will “re-offend,” even though people who have been convicted of sex offenses are less likely to be re-arrested than other people reentering society after incarceration.

Regardless, in many states, people who have been convicted of sex offenses are transferred from DOC facilities to civil commitment facilities at the end of their sentence and held pretrial, then re-sentenced by the civil courts.  The length of these sentences is often indeterminate, as release depends on progress through mandated “treatment.”  But neither “risk assessment” nor “progress through treatment” are objective measures.  In fact, advocates and people who have experienced these systems argue that risk assessment tools are used to rationalize the indefinite confinement of identity-specific groups, and that assessing progress through treatment is a highly subjective process determined by a rotating cast of “therapeutic” staff.

"Panicked Legislation"

The title of this post is the title of a new article authored by Catherine Carpenter which I missed when first posted here on SSRN, but now can be found in final form in print here at the Notre Dame Journal of Legislation.  Here is its SSRN abstract:

We are in the throes of a moral panic. It is not the first time, nor will it likely be the last, but it is among the most enduring.  Dubbed the sex panic, it has bred widespread and ever-escalating legislation, impacted the lives of more than a million people and their families, and caused public hysteria and violence.  And unlike other moral panics in our history that dissipated over time, there are no signs that the sex panic is diminishing.  Indeed, this panic grows more virulent with each passing year.

Panicked legislation is both the symbol and the result of a moral panic.  The article is uniquely situated, linking both social science and legal theories to offer a dynamic account of the world of moral panics, the mythical narratives that support them, and the inaccurate risk management assessment that plagues them.  It is ultimately a cautionary tale of hastily-crafted and fear-driven legislation that is fueled by the public’s distorted fear of a targeted group of people.

With a public unable or unwilling to hear the evidence, and political actors invested in their electorate, this article urges judicial intervention through the Irrebuttable Presumption Doctrine to challenge statutory schemes that are based on false assumptions that masquerade as universal truths.

"Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders"

The title of this post is the title of this student comment authored by Madison Flores and recently posted to SSRN.  Here is its abstract:

In the last fifteen years, the online sexual exploitation and abuse of children has increased by 422% worldwide.  However, despite having a recommended federal sentencing guideline system, district judges routinely fail to impose sentences concerning child-pornography offenses within those guidelines, often believing they are too harsh.  In response to the growing epidemic of the lackluster application of the federal sentencing guidelines by judges, this Comment explores and analyzes the federal sentencing guidelines structure; examines the factors judges use when sentencing; reviews case studies from several circuits in the United States showcasing the egregious disparities; evaluates how pre-sentence reports affect guideline ranges; and analyzes sentencing trends across the federal circuits.

The current structure leads to sentencing disparities throughout the federal system for similarly situated defendants. Whether defendants will receive fifteen, ten, or five years rests solely on the moral standards of the judges they stand before.  This Comment strongly suggests that federal courts more closely follow the sentencing guidelines set forth by Congress to protect those most vulnerable: the children.

Second-round celebrity sex offenders sentencing day

I got two alerts from the New York Times this afternoon about celebrity sentencings, and both involve sex offenders getting sentenced for the second time. Here are the headlines and the basics:

"Harvey Weinstein Sentenced to 16 Years for Los Angeles Sex Crimes"

Harvey Weinstein, the movie producer whose treatment of women propelled the #MeToo movement in 2017, was sentenced on Thursday to 16 years in prison for committing sex crimes in Los Angeles County. The sentence in Los Angeles adds to the 23 years Mr. Weinstein is serving in New York after his conviction there in 2020.

"R. Kelly Sentenced to 20 Years for Child Sex Crimes"

A federal judge on Thursday sentenced R. Kelly to 20 years in prison for child sex crimes, after a jury found that he had produced three videos of himself sexually abusing his 14-year-old goddaughter.  In a victory for the defense, the judge ruled that all but one year of the prison sentence would be served at the same time as a previous 30-year sentence that Mr. Kelly received after a jury in Brooklyn convicted him of racketeering and sex trafficking charges.

"Rape as Indignity"

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

Rape law has a consent problem.  The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially.  It is now widely taken as axiomatic that non-consensual sex is paradigmatic of rape.  But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law in sexual non-consent has also proven both over- and under-inclusive, too often leaving the law inadequate to vindicate some sexual harms and distorted in attempts to reach others.  Increasingly, the very concept of consent is being questioned by scholars, who desire a rape law that more accurately reflects the lived experience of both victims and perpetrators. Consent is even potentially dangerous.  The structure of consent reinforces problematic gender roles in sexual relations and fuels troubling narratives that have led to widespread violence against women.

This Article proposes a novel grounding for rape law — not as a matter of consent, but as a matter of human dignity. Human dignity has been perhaps the premier value in both political and moral thought over the past two centuries. As the Article documents, dignity’s relatively straightforward moral imperative — respect for persons — has a long tradition of being operationalized legally, making it ripe for use as the basis of a criminal prohibition.  Building upon both federal and state efforts to combat the indignities of sex trafficking, the Article outlines a proposed framework for punishing as rape the infliction of indignity through certain means of compelling sex, namely force, fraud, and coercion. Centering human dignity, rather than consent, would more closely align rape law with the fundamental tenets of criminal law theory and has the potential to disrupt gendered social scripts that increasingly animate violence.  In a time of mass incarceration, recognizing rape as indignity would also set the stage for a much-needed shift toward restorative justice and incarceration alternatives.

Sad accounting of 150-year prison term for child-porn possession after 3-year plea deal had been offered

The Miami Herald has this extended and sad review of an 150-year state sentence imposed on a person with schizophrenia who possessed child pornography.  The case provide an example of the "trial penalty" and all sort of other factors that can contribute to extreme prison terms.  The piece is headlined "‘Extreme injustice’: Homeless man with untreated schizophrenia fights 150-year sentence."  I recommended the lengthy article in full and here are excerpts:

The crime that Jared Stephens committed is not in dispute.  The question is whether he should die in prison for it.

On a stormy September day in 2016, Stephens — a former wrestler at Arizona State University who became homeless after years of untreated schizophrenia — walked into a Best Buy in Sweetwater.  He snatched a $399.99 laptop, stuffed other merchandise totaling $157.96 into a brown Publix tote bag and tried to walk out without paying.

Confronted by employees, he resisted, then pulled his own laptop out of a backpack and did something extraordinarily irrational. “Look, I have child pornography!” he declared.  He was telling the truth. Stephens, then 25, marched in and out of the store with his laptop playing a video of child abuse, tilting his computer screen so it was visible to a surveillance camera, according to an arrest report.  He proceeded to lie down between two sets of sliding doors at the store’s entrance, perusing illicit images as shoppers flowed by, until police arrived and hauled him to jail.

That unhinged act sent Stephens on an odyssey through the criminal justice system, resulting in a sentence that has no parallel in local courts for a similar crime: 150 years in state prison — to be followed by a 120-day stint in the Miami-Dade County jail.  The sentence — handed down by Miami-Dade Circuit Court Judge Veronica Diaz in 2018, with a minimum of public explanation — was 147 years longer than the three-year term state prosecutors initially proposed in a plea deal and 129 years longer than the 21-year term the state asked for at sentencing.  It was also dozens of times greater than the typical sentence for possession of child pornography....

Stephens ... made outlandish claims in open court at his criminal trial, asserting he could command African armies and shut off electricity to Russia with the power of his mind.  He largely refused to talk to his lawyers, much less cooperate in his defense. Court-appointed psychologists diagnosed him with schizophrenia... He had also suffered his own shocking trauma as a child — a fact that went unmentioned at his sentencing because he never told his defense lawyers.  Fan Li, a private attorney now representing Stephens, said that courts are ill-equipped to handle people experiencing mental illness, leading to widespread “unjust prosecutions and sentences.”...

Stephens’ presumptive release date is July 4 — Independence Day — 2166, when he would be 175. He did not produce or distribute the illegal images, which would typically lead to a longer sentence.... Had he gone along with the state and accepted a plea deal when it was originally offered, he could have gotten just three years in prison, as well as treatment in a program for “mentally disordered sex offenders.”  That sentence would have been in line with those given to other, similar offenders, according to court documents submitted by his lawyers.

Instead, he chose to fight the case.  State prosecutors responded by upping the charges from one count of child porn possession — with a maximum of five years in prison — to 30 counts, with a maximum of 150 years, based on a forensic analysis that found a cache of illegal images on his computer.

Between 2000 and 2017, Miami-Dade judges decided that nearly one-third of defendants who, like Stephens, possessed child porn — without producing it or passing it around to others — should not be sent to prison, according to data from the Florida Department of Corrections.  Those sent to prison received a median term of three years, according to the data, which was submitted in a court filing by Stephens’ defense team.  Only one other local case resulted in such a lengthy sentence: Adonis Losada, a former performer on the longtime Univision show “Sabado Gigante,” received a 153-year term.  The trial for Losada was later ordered redone, resulting in a sentence slashed by two-thirds.

Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing

How Appealing and Jonathan Adler at The Volohk Conspirary both posted about a notable new Sixth Circut panel opinion in US v. Phillips, No. 21-5762 (6th Cir. Nov. 28, 2022) (available here).  Here is how the majority opinion, which runs 17 pages, gets started:

When it passed the PROTECT Act in 2003, Congress required the United States Sentencing Commission to vary penalties for child-pornography offenses depending on the number of images involved.  The Commission accordingly implemented that method of calculating penalties in the Sentencing Guidelines.  Addressing what it perceived to be an ambiguity in Congress’s command, the Commission added an application note in the Guidelines commentary instructing courts to equate one video to seventy-five images when calculating the applicable Guidelines sentencing range.

For almost twenty years, courts have relied on this “75:1 Rule” when sentencing defendants convicted of possessing videos containing child pornography.  Recent Supreme Court precedent, however, has clarified when courts can defer to an agency’s interpretation of its regulations (by applying so-called Auer deference).  Defendant-Appellant Trinity Phillips argues that this recent clarification means that a sentencing court can no longer rely on the 75:1 Rule, and that the court erred in relying on it when imposing his sentence.  We disagree and affirm that sentence as imposed by the district court.

Concurring in the judgment only, Judge Larsen authors an 18-page opinion that starts this way:

How is a court to respond when the question before it involves the interpretation of an agency rule?  Over decades, we lower courts developed a habit of deferring reflexively to the agency’s interpretation under Seminole Rock and Auer, rather than first tackling the interpretative question ourselves, to see whether the rule was “genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019).  Three years ago, the Supreme Court told us to stop.  The Court did not mince words: “[T]he possibility of deference can arise only if a regulation is genuinely ambiguous.  And when we use that term, we mean it — genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Id.  In United States v. Riccardi, this court confirmed that Kisor’s admonition applied to the Sentencing Guidelines too. 989 F.3d 476, 486 (6th Cir. 2021).  These were important decisions.  They reminded us that judges have a duty to interpret the law, even when administrative agencies are involved.  But old habits are hard to break.  Today’s decision is proof.  No fair reading of Kisor and Riccardi would permit us to defer to the Sentencing Commission’s conclusion that the word “image” means 1/75th of every video.  Nevertheless, the majority opinion rolls right through Kisor’s stop sign, reflexively deferring to an agency’s noninterpretation of an unambiguous Sentencing Guideline.  So I concur in the judgment only.

Noticing surprisingly low federal guideline range for sexual abuse of prisoners

For a variety of reasons, it can be all too easy to conclude that all of the federal sentencing guidelines are set way too high.  After all, federal judges impose sentences below the guidelines in more than half of all cases (see Table 8), and they do so even more frequently in certain child porn, drug and economic cases (see Table 10).  But this AP report on a notable recent federal sentencing in California highlights that there can be cases in which federal judges conclude the applicable guideline is way too low.  The piece is headlined "Chaplain who sexually abused inmates gets 7 years in prison," and here are just some of the details:

Behind a closed chapel office door inside a federal women’s prison in California, a chaplain forced inmates seeking his spiritual guidance to have sex with him, exploiting their faith and their powerlessness behind bars for his own gratification, prosecutors said.

James Theodore Highhouse was sentenced Wednesday to seven years in prison — more than double the recommended punishment in federal sentencing guidelines.  U.S. District Judge Haywood S. Gilliam Jr. said the guidelines, which call for a sentence of less than three years, “seriously underestimate the seriousness” of Highhouse’s conduct. “It’s hard to come up with the right words to describe how egregious an abuse of these victims this was,” Gilliam said.

Highhouse is among five workers charged in the last 14 months with sexually abusing inmates at the Federal Correctional Institution in Dublin, California, and the first to reach the sentencing phase of his case.... Highhouse must register as a sex offender once he’s released from prison, Gilliam said.

Highhouse, who was arrested in January and pleaded guilty in February, would tell women he abused at the Bay Area lockup, that everyone in the Bible had sex and that God wanted them to be together, prosecutors said.  An Army veteran, he pressured one inmate into intercourse on Veterans Day by telling her she needed to serve her country and on Thanksgiving by telling her she needed to show her gratitude for him, prosecutors said.

While Highhouse, 49, was charged only with abusing one inmate and lying to authorities, prosecutors say he engaged in predatory conduct with at least six women from 2014 to 2019 — including one he counseled at a veterans hospital where he worked before joining the federal Bureau of Prisons, where allegations were routinely ignored.  “Highhouse ruined my life — he truly did,” one inmate said in a victim impact statement. “I don’t even go to Church anymore because of him.  I have no trust in the Church and really, I don’t trust anyone because of what he did.”

Highhouse, enabled by a toxic culture of abuse and coverups at the prison, warned victims not to report him, telling one of them “no one will believe you because you’re an inmate, and I’m a chaplain,” prosecutors wrote in a sentencing memorandum. At the same time, prosecutors wrote, a prison counselor would rail about inmates “snitching” on employees, suggesting they instead “tell Trump about it,” referring to then-President Donald Trump.

Prosecutors had sought a 10-year prison sentence.  His lawyers asked for two years, the low end of the federal guidelines, which called for a sentence of 24 to 30 months.  Gilliam’s seven-year sentence matched the recommendation of probation officers who conducted Highhouse’s pre-sentence investigation....

All sexual activity between a prison worker and an inmate is illegal. Correctional employees enjoy substantial power over inmates, controlling every aspect of their lives from mealtime to lights out, and there is no scenario in which an inmate can give consent.... Highhouse pleaded guilty on Feb. 23 to two counts of sexual abuse of a ward, two counts of abusive sexual contact and one count of making false statements to federal agents.

All of the charges stem from allegations Highhouse repeatedly abused a female prisoner over a nine-month span in 2018 and 2019. That woman said in a victim impact statement that she cried herself to sleep after testifying before a grand jury about Highhouse’s abuse....

Other allegations against Highhouse, previously kept quiet by Dublin officials, came to light during the investigation, prosecutors said....  In May, an inmate now incarcerated at another federal prison facility reported that Highhouse raped her multiple times in his chapel office after she sought him out for counseling, prosecutors said.

There are many disconcerting and notable aspects of this story, but I am still struck that a prison official/chaplain can sexually abuse a prisoner repeatedly and yet only face a guideline sentencing range of 24 to 30 months.  That range is, generally speaking, well below the guideline ranges typically facing lower-level drug offenders and lower-level fraudsters.

"Sex Exceptionalism in Criminal Law"

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

Sex crimes are the worst crimes.  People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work.  Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions.  This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate.  However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law.  Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance — an account that undergirds contemporary calls for broader criminal regulations and higher sentences.  In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy.  Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity.  Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional.  Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy.  Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation.  Sex dazzles theorists of all types.  For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones.  Critics of mass incarceration selectively abandon their principled stance against expanding the penal state.  Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation.

Split Wisconsin Supreme Court rejects transgender woman's arguments for changing her name on sex offender registry

The Wisconsin Supreme Court issued a notable 4-3 ruling yesterday in State v. CG, 2022 WI 60 (Wisc. July 7, 2022) (available here), rejecting interesting arguments regarding the state's sex offender registry. Here is part of the start of the opinion of the court:

When Ella was 15 years old, she and another teenager, Mandy, sexually assaulted their supposed friend, 14-year-old Alan ... [and state] law required Ella to register as a sex offender.... Ella filed a postdispositional motion to stay registration....

Ella's legal arguments are grounded in her gender identity. She entered the juvenile justice system as a male. Sometime thereafter, Ella realized she was a transgender girl, i.e., a biological male who self-identifies as a girl. Ella has a traditionally masculine legal name she believes is incompatible with her gender identity.  Ella complains she is bound to "out herself" as a male anytime she is required to produce her legal name.  If Ella were not a sex offender, she could petition the circuit court for a legal name change under Wis. Stat. § 786.36 (2019–20);  however, another statute, Wis. Stat. § 301.47(2)(a), prohibits her from filing such a petition because she is a sex offender, although the State argues it does not prohibit her from using an alias provided she notifies the Department of Corrections (DOC) of her intent to do so in advance.

Ella raises two legal issues for our consideration.  She argues requiring her to register as a sex offender: (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to her; and (2) violates her right to free speech under the First Amendment to the United States Constitution. Both arguments rest on Ella's inability to change her legal name to conform to her gender identity.

We reject both arguments.  Consistent with well-established precedent, we hold Ella's placement on the sex offender registry is not a "punishment" under the Eighth Amendment.  Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella's right to free speech does not encompass the power to compel the State to facilitate a change of her legal name.

Here is a key paragraph from the start of the dissent authored by Justice Bradley:

Although I agree that Ella's Eighth Amendment claim fails, I write separately to address the majority's First Amendment analysis and conclusions. It cuts short the First Amendment analysis by determining that the First Amendment isn't even implicated by the name change ban that accompanies Ella's registration as a sex offender. In making this determination, the majority takes an overly restrictive view of expressive conduct and denigrates the import of a legal name.

R Kelly given 30-year federal prison sentence for multiple racketeering and sex trafficking offenses

As this CNN article reports, "R&B singer R. Kelly was sentenced to 30 years in prison Wednesday ... following his conviction last year on federal racketeering and sex trafficking charges stemming from his efforts over years to use his fame to ensnare victims he sexually abused." Here is more:

Prosecutors had asked the judge to sentence Kelly, 55, to more than 25 years behind bars, while his defense attorneys asked for 10 or fewer, saying prosecutors' request was "tantamount to a life sentence."

Survivors of Kelly's abuse held hands and prayed as US District Court Judge Ann Donnelly began reading his sentence. Kelly -- who wore a tan prison uniform, dark-rimmed glasses and a black mask at the hearing in federal court in Brooklyn -- showed no emotion.

"You left in your wake a trail of broken lives," Donnelly told Kelly, whose full name is Robert Sylvester Kelly.  In deciding the sentence, Donnelly said she considered Kelly's own traumatic childhood, during which his attorneys said he was repeatedly sexually abused by a family member and a landlord.  "It may explain, at least in part, what led to your behavior," the judge said. "It most surely is not an excuse."...

Kelly's attorney, Jennifer Bonjean, said he would not address the court, pointing to the other criminal case faced by Kelly, but said before the sentence was read that her client "rejects that he is this monster."... Kelly made his only comment in response to the judge after Bonjean said he wouldn't speak: "Yes, your honor, that's my wish."...

Prior to sentencing, the court heard impact statements from seven of Kelly's victims, including Jane Doe 2, who testified at trial. "It's been 23 years since we knew each other, and you've victimized a lot of girls since then," she said, addressing Kelly. She later added: "Now it's your turn to have your freedom taken from you."...

Kelly is being held at a federal detention facility in Brooklyn and is expected to be moved back to Chicago, where he faces another federal trial in August on child pornography and obstruction charges. Childhood trauma revealed.

I believe federal prosecutors had argued in their sentencing memorandum that his guideline recommendation was life, which the defense claimed the guideline range was only 14 to 17.5 years.  I have not found a press report discussion how the guideline dispute was resolved, though this local article indicates that Judge Donnelly "said that her sentence is one 'I would have imposed regardless of the guidelines'."

Ghislaine Maxwell given 20-year federal sentence for sex trafficking for Jeffrey Epstein

In this post over the weekend, I asked in anticipation of today's high-profile sentencing, "what federal sentence for convicted sex trafficker Ghislaine Maxwell?."  Commentor tmm nailed the outcome, as reported here by the AP:

Ghislaine Maxwell, the jet-setting socialite who once consorted with royals, presidents and billionaires, was sentenced to 20 years in prison Tuesday for helping the financier Jeffrey Epstein sexually abuse underage girls.  The stiff sentence was the punctuation mark on a trial that explored the sordid rituals of a predator power couple who courted the rich and famous as they lured vulnerable girls as young as 14, and then exploited them.

Prosecutors said Epstein, who killed himself in 2019 while awaiting trial, sexually abused children hundreds of times over more than a decade, and couldn’t have done so without the help of Maxwell, his longtime companion and onetime girlfriend who they said sometimes also participated in the abuse.  In December, a jury convicted Maxwell of sex trafficking, transporting a minor to participate in illegal sex acts and two conspiracy charges.

U.S. District Judge Alison J. Nathan, who also imposed a $750,000 fine, said “a very significant sentence is necessary” and that she wanted to send an “unmistakable message” that these kinds of crimes would be punished.  Prosecutors had asked the judge to give her 30 to 55 years in prison, while the 60-year-old Maxwell’s defense sought a lenient sentence of just five years....

When she had a chance to speak, Maxwell said she empathized with the survivors and that it was her “greatest regret of my life that I ever met Jeffrey Epstein.” Maxwell called him “a manipulative, cunning and controlling man who lived a profoundly compartmentalized life,” echoing her defense attorneys’ assertions that Epstein was the true mastermind. Maxwell, who denies abusing anyone, said she hoped that her conviction and her “unusual incarceration” bring some “measure of peace and finality.”

Nathan refused to let Maxwell escape culpability, making clear that Maxwell was being punished for her own actions, not Epstein’s. She called the crimes “heinous and predatory” and said Maxwell as a sophisticated adult woman provided the veneer of safety as she “normalized” sexual abuse through her involvement, encouragement and instruction....

Assistant U.S. Attorney Alison Moe recounted how Maxwell subjected girls to “horrifying nightmares” by taking them to Epstein. “They were partners in crime together and they molested these kids together,” she said, calling Maxwell “a person who was indifferent to the suffering of other human beings.”

Epstein and Maxwell’s associations with some of the world’s most famous people were not a prominent part of the trial, but mentions of friends like Bill Clinton, Donald Trump and Britain’s Prince Andrew showed how the pair exploited their connections to impress their prey.

Over the past 17 years, scores of women have accused Epstein of abuse them, with many describing Maxwell as the madam who recruited them.  The trial, though, revolved around allegations from only a handful of those women.  Four testified that they were abused as teens in the 1990s and early 2000s at Epstein’s mansions in Florida, New York, New Mexico and the Virgin Islands....

At least eight women submitted letters to the judge, describing the sexual abuse they said they endured for having met Maxwell and Epstein.  Six of Maxwell’s seven living siblings wrote to plead for leniency.  Maxwell’s fellow inmate also submitted a letter describing how Maxwell has helped to educate other inmates over the last two years.  Anne Holve and Philip Maxwell, her eldest siblings, wrote that her relationship with Epstein began soon after the 1991 death of their father, the British newspaper magnate Robert Maxwell.

Based on the sentencing filings noted in this prior post, I believe the Government argued the applicable federal sentencing guideline range was 360 month-life, but this CBS article indicates that Judge Nathan concluded the proper guideline range was 188-235 months.  So, by adopting a more lenient guideline calculation, Judge Nathan technically gave Maxwell and above-guideline sentence.

Prior related posts:

• "How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"
• You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell? 

You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell?

A high-profile sentencing is scheduled for NYC federal court this coming week.  This CNN article from last last, reporting on prosecutors' sentencing filing, provides a partial preview:

Federal prosecutors asked a judge in a court filing Wednesday to sentence Ghislaine Maxwell to 30 to 55 years in prison for sex trafficking a minor and other charges related to a sprawling conspiracy to abuse young girls with the wealthy financier Jeffrey Epstein.

"Maxwell was an adult who made her own choices. She made the choice to sexually exploit numerous underage girls. She made the choice to conspire with Epstein for years, working as partners in crime and causing devastating harm to vulnerable victims," prosecutors wrote in the sentencing memo. "She should be held accountable for her disturbing role in an extensive child exploitation scheme."

Last week, Maxwell's lawyers asked a judge to sentence her to between 4.25 and 5.25 years in prison, saying her difficult childhood made her vulnerable to Epstein and that she shouldn't face a harsh sentence because of his actions. "But this Court cannot sentence Ms. Maxwell as if she were a proxy for Epstein simply because Epstein is no longer here," her attorneys wrote in their sentencing recommendation....

Epstein, who pleaded guilty in 2008 to state prostitution charges, was indicted on federal sex trafficking charges in July 2019 but died by suicide in prison a month later. Maxwell, his confidante and former girlfriend, was arrested a year afterward and has been held in jail since. In the sentencing memo, the prosecution wrote that the defense's argument was "absurd and offensive."

"The lenient sentence the defendant seeks would send the message that there is one system of laws for the rich and powerful, and another set for everyone else," prosecutors wrote.... 

Maxwell, 60, was found guilty of five federal charges in December: sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy.  However, she will only be sentenced on three counts after the judge presiding over her case agreed that two of the conspiracy counts she faced were repetitive.

The probation department recommended a 20-year sentence, below the sentencing guidelines. 

At her trial late last year, prosecutors argued Maxwell and Epstein conspired to set up a scheme to lure young girls into sexual relationships with Epstein from 1994 to 2004 in New York, Florida, New Mexico and the US Virgin Islands. Four women testified during the trial that Epstein abused them and that Maxwell facilitated the abuse and sometimes participated in it as well.

Her defense, meanwhile, said she was a "scapegoat" for Epstein's actions and attacked the memories and motivations of the women who said they were sexually abused.

The federal prosecutors' sentencing filing, which is available here, contends that "the applicable sentencing range is 360 months to life imprisonment [but] the statutory maximum penalty is 660 months’ imprisonment, [so] the Guidelines range becomes 360 to 660 months’ imprisonment."  But the defense sentencing memorandum, which is available here, requests "that the Court grant Ms. Maxwell a significant variance below the advisory Sentencing Guidelines range of 292-365 months and below the 240-month sentence recommended by the Probation Department."

But, as of this writing on the morning of June 26, it now seem there is a chance the sentencing will not go forward this week.  This Reuters article explains:

Ghislaine Maxwell has been put on suicide watch at a Brooklyn jail, and may seek to delay her Tuesday sentencing for aiding Jeffrey Epstein's sexual abuse of underage girls, her lawyer said on Saturday night.  In a letter to the judge overseeing Maxwell's case, Maxwell's lawyer, Bobbi Sternheim, said her client is "unable to properly prepare, for sentencing," after officials at the Metropolitan Detention Center on Friday declared the suicide watch and abruptly moved Maxwell to solitary confinement.

Sternheim said Maxwell was given a "suicide smock," and her clothing, toothpaste, soap and legal papers were taken away. The lawyer also said Maxwell "is not suicidal," a conclusion she said a psychologist who evaluated the 60-year-old British socialite on Saturday morning also reached.

"If Ms. Maxwell remains on suicide watch, is prohibited from reviewing legal materials prior to sentencing, becomes sleep deprived, and is denied sufficient time to meet with and confer with counsel, we will be formally moving on Monday for an adjournment," Sternheim wrote.

Prior related post:

• "How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?" 

Former reality star Josh Duggar sentencing to just over 12.5 years in federal prison for child pornography offense

In this post last week, I spotlighted the sentencing submission of the parties in a high-profile federal sentencing and asked "what federal sentence for former reality star Josh Duggar after child pornography convictions?".  I noted that the prosecution was asking for the statutory max of 20 years (and they said the guideline range was 30 to life), while Duggar asked for a sentence of five years.  The post generated a lot of thoughtful comments, and atomicfrog predicted "a sentence in the 10-12 year range."  That was pretty close, as this new BuzzFeed News piece explains in its headline: "Josh Duggar Has Been Sentenced To 12.5 Years In Prison Over Child Sexual Abuse Materials."

Though not discussed at length in the BuzzFeed piece, I surmise from this People article that the sentencing judge here may not have adopted all of the guideline enhancements pursued by the Government.  Here is a snippet:

Prosecutors had asked that he serve the maximum sentence of 20 years in prison, while Duggar’s defense team had asked for five. “Duggar has a deep-seated, pervasive, and violent sexual interest in children,” Assistant US Attorney Dustin Roberts wrote in a sentencing memo.

Both Duggar's wife, Anna, and father, Jim Bob, were in court in Fayetteville on Wednesday for the sentencing.

On Tuesday, District Judge Timothy Brooks issued a 29-page opinion rejecting Duggar's plea for a new trial. "There is no merit to Mr. Duggar’s argument in favor of acquittal," the judge wrote....

After a lengthy hearing Wednesday in which he heard a number of objections from the defense, the judge sentenced Duggar to 151 months in prison.

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

Prior related posts:

• How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?
• You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

"No Check We Won't Write: A Report on the High Cost of Sex Offender Incarceration"

The title of this post is the title of this new article in the journal Sexual Abuse authored by Elizabeth Letourneau, Travis Roberts, Luke Malone and Yi Sun. Here is its abstract:

Child sexual abuse is a preventable public health problem that is addressed primarily via reactive criminal justice efforts.  In this report, we focus on the cost of incarcerating adults convicted of sex crimes against children in the United States.  Specifically, we summarize publicly available information on U.S. state and federal prison and sex offender civil commitment costs.  Wherever possible, we used government data sources to inform cost estimates.  Results indicate the annual cost to incarcerate adults convicted of sex crimes against children in the United States approaches $5.4 billion.  This estimate does not include any costs incurred prior to incarceration (e.g., related to detection and prosecution) or post-release (e.g., related to supervision or registration).  Nor does this estimate capture administrative and judicial costs associated with appeals, or administrative costs that cannot be extricated from other budgets, as is the case when costs per-prisoner are shared between prisons and civil commitment facilities.  We believe information on the substantial funding dedicated to incarceration will be useful to U.S. federal, state, and local lawmakers and to international policymakers as they consider allocating resources to the development, evaluation and dissemination of effective prevention strategies aimed at keeping children safe from sexual abuse in the first place.

In praise of the continued sentencing sensibility of the National Review's Andrew McCarthy

Though I have been intrigued by the considerable attention given to Judge Ketanji Brown Jackson's sentencing record even since Senator Josh Hawley's tweets flagged his concerns about about her writings, comments and sentencings in some sex offense cases (background here), I have been quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations.  District judges often say sentencing is the hardest part of their job, and this is true even in the run-of-the-mill cases when the facts are routine and the applicable statutory law is clear and the applicable guidelines are helpful.  (A few years ago, I gave a talk (written up here) partially titled "Sentencing is So Dang Hard" which details just some reasons I think judge are right to describe sentencing this way.)

Critically, in federal child pornography (CP) cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful.  In the CP setting, applicable statutory law is quite messy — e.g., what is the real difference between child pornography "possession" and "receipt", how should USSC policy statements be considered here — and the applicable guidelines are widely regarded as badly broken.  Those legal realities mean federal sentencing takes on extra layers of challenge in CP cases.  The challenges become especially profound when difficult and distinctive facts come along, such as in the oft-discussed Hawkins case where, according to this New York Times article, the prosecutor described "very unique circumstances" involving teenage offender and the defense presented an "evaluation by a psychologist asserting that Mr. Hawkins did not 'demonstrate sexual deviation' but was instead driven to watch the pornographic images as 'a way for him to explore his curiosity about homosexual activity and connect with his emotional peers'."

Under difficult circumstances during questions from mostly GOP Senators, Judge Jackson tried hard to explain her sentencing process and goals, and she did highlight some of the unique challenges these cases present in light of problematic guidelines.  But, based on the parts of the hearing I was able to watch, I was generally underwhelmed by the efforts of Judge Jackson's supporters to discuss with her more broadly the deep challenges and profound humanity that all sentencing decision-making involves.  And I heard precious little discussion of the particulars of the Hawkins case or other cases in which defendants present significant mitigating circumstances that find little or no expression is problematic guidelines. 

But, as the title of this post suggest, there is one commentator who has done a great job in this arena this week, and I want to give a particular shout out to the work he has done to consistently and effectively contextualizing these stories.  Specifically, the National Review's Andrew McCarthy has now done three lengthy pieces that are must-reads for everyone following these stories:

"Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography"

"Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases"

"Judge Jackson and Judiciary Committee Republicans Joust on Child-Porn-Possession Case against 18-Year-Old . . . Again"

I flagged the first of these pieces in a prior post, but I want to especially laud Mr. McCarthy for not being content with his important first salvo against this line of attack on Judge Jackson.  Mr. McCarthy makes clear that he is not a fan or supporter of Judge Jackson, but he has still been willing to write a significant series of detailed pieces documenting in so many ways why the sentencing discourse by the GOP here is so misguided.  Kudos to him (and the National Review) for such sentencing sensibility.

Contextualizing Judge Jackson's mainstream sentencing record in federal child porn cases

A tweet stream by Senator Josh Hawley about writings, comments and sentencings by SCOTUS nominee Judge Jackson has kicked off a robust discussion of her attitudes toward sex offenders and those who download child pornography (CP). Senator Hawley's tweets referenced Judge Jackson's law school Note in the Harvard Law Review and questions she asked while on the US Sentencing Commission.  What the Senator references in these tweets struck me as not especially sensational nor ultimately a strong basis for questioning her judicial temperament or philosophy.  But he thereafter discussed Judge Jackson's below-guideline sentencing decisions in CP cases when she served as a federal district judge, and I certainly consider reviews of sentencing decisions to be a fair and sound component of assessing Judge Jackson's record as a jurist.

But, to be truly fair and sound, any review of Judge Jackson's CP sentencings must include proper context regarding the federal sentencing guidelines for CP which are widely recognized as dysfunctional and unduly severe.  As this recent US Sentencing Commission report explains, the CP guideline (2G2.2) "fails to distinguish adequately between more and less severe offenders" (p. 19), and "most courts believe §2G2.2 is generally too severe and does not appropriately measure offender culpability in the typical non-production child pornography case" (p. 22).  With the CP guidelines "too severe" and poorly designed to "measure offender culpability" in the digital age, federal judges nationwide rarely follow them.  Indeed, data in recent (and past) USSC reports document that Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream because: (1) federal judges nationwide typically sentence below the CP guideline in roughly 2 out of 3 cases (p. 23), and (2) federal judges nationwide, when deciding to go below the CP guideline, typically impose sentences around 54 months below the calculated guideline minimum (p. 25).

Reviewing a brief accounting of nine CP cases sentenced by Judge Jackson (which I believe was produced by GOP Senators and/or staff and was forwarded to me), I was first struck by the fact that in a majority of these cases (5 of 9) the prosecution advocated for a below-guideline sentence and in three others the prosecution advocated for only the guideline minimum.  In other words, Judge Jackson was generally sentencing CP defendants in cases in which even the prosecution concluded mitigating factors meant that the guidelines were not a proper benchmark range in light of congressional sentencing purposes.  Notably, the recent USSC report indicates that the government formally moves for a below-range sentence in roughly 1 out of every 5 CP cases (p. 23); it is not clear if prosecutors made formal motions for departures or variances in Judge Jackson's CP cases, but it is clear that in the majority of these cases the prosecutors were the ones who requested a sentence below the CP guidelines.

In the nine cases, Judge Jackson followed the prosecutors' sentencing recommendations in two cases, and sentenced below the prison term suggested by the government in seven others.  One case, US v. Hillie, distorts the average deviation from the prosecutors' recommendations, as the government there sought a sentence of 45 years and Judge Jackson imposed a sentence of "only" 29.5 years. Leaving that case out of the average, in the other eight cases, Judge Jackson's sentence was only about 1.8 years below the recommendation of prosecutors (and about .6 years above the defense recommendations).  In those cases, Judge Jackson did sentence, on average, about 54 months below the calculated guideline minimum, but that degree of reduction from the guideline minimum is almost identical to the national average reduction according to the USSC report (p. 25).

In other words, Judge Jackson's record in these CP cases does show she is quite skeptical of the ranges set by the CP guidelines, but so too were prosecutors in the majority of her cases and so too are district judges nationwide (appointed by presidents of both parties).  I use the word "mainstream" to describe Judge Jackson's sentencing patterns here because they strike me as not at all out of the ordinary; there are surely federal judges who have sentenced CP offenders more harshly, but there are also surely federal judges who have sentenced CP offenders more leniently.  Judge Jackson's sentencing record in CP cases reflects the fundamental flaws of the CP guidelines (and perhaps a relatively mitigated group of offenders she was tasked with sentencing).  As I see it, these cases do not really reveal any kind of unique or uniquely concerning sentencing jurisprudence.

There is more to say on this topic — e.g., I suspect that Judge Jackson's views in these cases were usefully informed by (1) the unanimous bipartisan USSC report authored in 2012 which stressed "the current sentencing scheme results in overly severe guideline ranges for some offenders based on outdated and disproportionate enhancements" and (2) the Justice Department's 2013 follow-up letter that "joined in the call for a critical review of the existing sentencing guidelines for non-production child pornography crimes" — and I suspect we will hear a lot more on this topic in the days ahead.  For now, I will conclude where the title of this post starts: if and when we properly contextualize Judge Jackson's sentencing record in federal child porn cases, it looks pretty mainstream.

"Ruined"

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

Judges play a critical role in one of the most important states of a criminal case’s adjudication — sentencing.  While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants.  This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.”  The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.

In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment.  However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article considers at how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing.  I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

"Card Carrying Sex Offenders"

The title of this post is the title of this new paper authored by Wayne Logan now available via SSRN.  Here is its abstract:

Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect.  Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War.  This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.

Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.  Often, the branding is very overt, such as a stamp of “SEX OFFENDER” or “SEXUAL PREDATOR” in bight colored lettering.  At other times, it is more subtle, such as use of a “U,” denoting that the individual is a “Sexual Deviant.”  The federal government also brands registrants, requiring that their passports display a “unique identifier” stamped in a “conspicuous location.”  The passports must be shown to airport and customs officials, as well others when traveling abroad. With state laws, disclosure is even more pervasive: not only to police, upon demand, but also to myriad other individuals encountered in daily life, such as bank tellers and store clerks.

To date, the laws have faced only a few judicial challenges, which have condoned government branding in principle, yet at times required use of less graphic signifiers.  The decisions, while notable for their reasoning regarding government-compelled speech, have failed to address other significant constitutional concerns, including the First Amendment right of free association, the Fourth Amendment prohibition of unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination.  As important, courts have ignored the troubling implications of allowing governments to force individuals to publicly self-stigmatize and systematically compel, under threat of criminal sanction, that they be complicit in their own surveillance.  The article frames and illuminates these issues for the important coming important debate regarding the authority of government to target not only individuals convicted of criminal offenses, but anyone it thinks worthy of public stigmatization and monitoring, possibly for their lifetimes.

Fourth Circuit panel upholds a "quirk" in Virginia’s sex-offender registry against various constitutional challenges

Though Justice Scalia passed away nearly six years ago, I still recall him preaching the simple (and perhaps controversial) idea that the Constitution does not always invalidate stupid laws. (Here is an account of a speech he gave 20 years ago at Princeton university where he said "the Constitution sometimes requires upholding a law that does not make sense.") The late Justice came to mind today when I saw the recent Fourth Circuit ruling in Doe v. Settle, No. 20-1951 (4th Cir. Jan 28, 2022) (available here). Here is how the lengthy unanimous panel opinion in Doe starts and concludes:

Two months after he turned 18, John Doe was caught having sex with his 14-yearold girlfriend.  Given the facts of his arrest, Doe may well have been charged with “carnal knowledge of a child,” a Class 4 felony that prohibits sex with 13- and 14-year-old children.  But instead he was charged with and pleaded to a lower-class felony, “taking indecent liberties with children,” which only prohibits behavior like propositioning a child for sex.  Doe’s plea may have gotten him a shorter prison sentence, but due to a quirk in Virginia law, it also led to worse treatment by Virginia’s sex-offender registry.  Both crimes generally put an offender on the highest tier of the registry for life, but there is a narrow exception to that rule.  When an offender is less than 5 years older than his victim, he may be removed from the registry in time.  But that mitigating exception only applies to carnal knowledge, the crime with the higher sentencing range, and not to indecent liberties.  So while Doe may have felt lucky to only be charged with indecent liberties, given the potential for a lower prison sentence, that plea ended up condemning him to worse treatment on the registry.  Because of that oddity, Doe will spend the rest of his life on Virginia’s sex-offender registry with no hope for relief.

Doe — now in his 30s — sued Colonel Gary T. Settle, Superintendent of the Virginia Department of State Police, hoping to persuade a court to remove him from that registry and its burdens.  Doe argues that the registry and the 5-year-gap provision violate multiple constitutional principles.  In his Fourteenth Amendment equal protection claim, Doe asks us to consider why an offender convicted of having sex with a child, as Doe might have been, should be treated better than an offender convicted only of propositioning a child for sex, Doe’s actual charge.  In his Eighth Amendment claim, Doe asks us whether a lifelong registration requirement is an appropriate sanction for a single nonviolent crime committed by a high-school student.

Both appeals present significant issues of fairness, but at bottom, they ask us to question the wisdom of the Virginia legislature and its sex-offender registry.  That is not our place.  When the Constitution is invoked, our place is to determine whether state laws comply with the specific dictates of that document.  And Virginia’s sex-offender registry complies with the Eighth and Fourteenth Amendments.  So we affirm the district court’s dismissal.....

If an 18-year-old man in Virginia has “consensual” sex with his 14-year-old girlfriend, and the next day, sends her a text message asking her to do it again, he will have committed two crimes.  But under the letter of the law in Virginia, only one of those crimes will place him on the worst tier of sex offenders on the registry with the rapists and the murderers: the text message.  That may not make much sense.

But our Constitution “presumes that even improvident decisions will eventually be rectified by the democratic process.”  See Cleburne, 473 U.S. at 440.  The judiciary is not meant to revise laws because they are clumsy, unwise, or — even in some cosmic sense — unfair.  In cases like this, courts are asked to make judgments about what is inside and what is outside the precise lines drawn by the Constitution.  And whatever else they may be, Virginia’s sex-offender registry and its narrow Romeo-and-Juliet provision are constitutional.  Accordingly, the district court’s judgment is AFFIRMED.

"Child Pornography and Criminal Justice Reform"

The title of this post is the title of this notable new article now available via SSRN and authored by Dawinder Sidhu and Kelsey Robinson. Here is its abstract:

Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason.  The defining attributes of prevailing drug policy — severe and disproportionate penalties owning to a retributive, factually flawed, and hurried congressional process — apply to the child pornography context as well.  In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion to vary under Kimbrough v. United States.

Though drug sentencing is problematic enough, child pornography is arguably worse.  The U.S. Sentencing Commission has disavowed these guidelines and invited judges to vary from them.  Judges have done just that, varying in 63% of all cases, more than any other offense type.  Thus, in this Article, we also suggest how the improvements to this uniquely distressed area of law can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.

Child pornography is not part of the conversation for criminal justice reform.  We take on child pornography sentencing, and in doing so hope to ensure that the movement for criminal justice reform is both correct and complete.

Eleventh Circuit panel decides law enforcement violates First Amendment by placing Halloween warning signs on registered sex offenders' lawns

A couple of days ago, a unanimous Eleventh Circuit panel issued an interesting and notable ruling in McClendon v. Long, No. 21-10092 (11th Cir.  Jan. 19, 2022) (available here).  Here is how the court's opinion gets started:

In October 2018, two deputies from the Butts County Sheriff’s Office placed signs in the front yards of the residences of all 57 registered sex offenders within the County, warning “STOP” and “NO TRICK-OR-TREAT AT THIS ADDRESS.” Before Halloween 2019, three registered sex offenders living in Butts County sued, seeking to enjoin the Sheriff from placing the signs again. The district court denied a permanent injunction and granted summary judgment in favor of the Sheriff.

After review and with the benefit of oral argument, we conclude that the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights.  Thus, we vacate the district court’s judgment in favor of the Sheriff and remand for further proceedings consistent with this opinion.

For many years, I have seen reports about (and have blogged a bit about) all sorts of "special" formal and informal rules applied to registered sex offenders by many localities around Halloween. Some of these rules have been challenged in various courts and a few have been enjoined.  But I cannot recall seeing any other federal circuit opinions on this recurring issue, and I suspect this ruling will be widely cited in future litigation over these kinds of issues.

"How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"

The question in the title of this post is the headline of this new Newsweek article that explores a bit what I started thinking about upon hearing that Ghislaine Maxwell, Jeffrey Epstein's "helper," had been convicted on five of six federal sex trafficking charges.  The simple technical answer to the question is 65 years, and the article provides these (helpful?) additional details:

The most serious charge Maxwell was convicted of, sex trafficking of a minor, carries a maximum prison sentence of 40 years.  She was also convicted of transporting a minor with the intent to engage in illegal sexual activity, a charge punishable by up to 10 years, as well as three other charges that each carry maximum sentences of five years.... It is unclear when she could be tried on two separate counts of perjury, which could also add a five-year sentence apiece.

[I]f 60-year-old Maxwell is given a sentence anywhere near the maximum allowable term, she may spend the rest of her life behind bars, especially since the federal prison system does not include parole. If federal prison sentencing guidelines are allowed and she is ordered to serve sentences concurrently, Maxwell could face as little as 10 years.

Maxwell was sent back to Brooklyn's Metropolitan Detention Center after the verdict was read on Wednesday.  She has been held at the facility in isolation since being arrested in July 2020. Maxwell is likely to remain there until she is sentenced and assigned to a federal prison....

It is unclear whether security measures for Maxwell will be altered in light of her convictions.  Maxwell has denied all of the charges that she was convicted of on Wednesday. Plans to launch an appeal have already been set in motion, her attorney Bobbi Sternheim told reporters after the verdict. "We firmly believe in Ghislaine's innocence," Sternheim said. "Obviously we are very disappointed with the verdict, we have already started working on the appeal and we are confident that she will be vindicated."

U.S. District Judge Alison Nathan has yet to announce the date of Maxwell's pending sentencing hearing.

I think this article means to make the point that if federal sentencing guidelines are followed (not "allowed"), then Maxwell would be quite likely to get a term lower than the 65-year  statutory maximum available.  (It is perhaps worth noting that the most serious count of conviction now carries a statutory maximum sentence of life, but the stat max was "only" 40 years at the time of Maxwell's offense conduct.)

I am not an expert on guideline calculations for this set of offenses, but my sense is that the recommend range will be at least as high as 20 years, and perhaps even much higher.  It will be interesting to see the precise calculation and the sentencing advocacy by the prosecution and the defense in the months ahead.  It will also be interesting to watch if Judge Nathan's nomination to the Second Circuit, or the effort by some GOP Senators to question her sentencing work, could come to somehow impact Maxwell's eventual sentencing.

How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?

The question in the title of this post is prompted by this celebrity trial news from the AP: "Former reality TV star Josh Duggar was immediately taken into custody Thursday after a federal jury convicted him of downloading and possessing child pornography." Here is more:

The jury in Fayetteville, about 140 miles (225 kilometers) northwest of Little Rock, found the 33-year-old Duggar guilty on one count each of receiving and possessing child pornography.  He faces up to 20 years in prison and fines of up to $250,000 for each count when he’s sentenced.... U.S. District Judge Timothy Brooks said sentencing will happen in about four months, Fayetteville TV station KNWA reported. “We respect the jury’s verdict and we look forward to continuing this fight on appeal,” said Justin Gelfand, one of Duggar’s defense attorneys.

Duggar and his large Arkansas family starred on TLC’s “19 Kids and Counting” until the network canceled the show in 2015 following revelations that he had molested four of his sisters and a babysitter. Authorities began investigating the abuse in 2006 after receiving a tip from a family friend but concluded that the statute of limitations on any possible charges had expired.

Duggar’s parents said he had confessed to the fondling and apologized . At the time, Duggar apologized publicly for unspecified behavior and resigned as a lobbyist for the Family Research Council, a conservative Christian group. Duggar later apologized for a pornography addiction and for cheating on his wife, calling himself “the biggest hypocrite ever.” The judge in the child porn case ruled that jurors could hear testimony about how in 2003, Duggar admitted to molesting four girls.  A family friend testified that Duggar told her about the abuse.

Federal authorities said they began investigating after a Little Rock police detective found child porn files were being shared by a computer traced to Duggar.  A federal agent testified in May that images depicting the sexual abuse of children, including toddlers, were downloaded in 2019 onto a computer at a car dealership Duggar owned.  Duggar’s attorney argued that someone else downloaded or uploaded the images onto Duggar’s computer.  But the jury wasn’t swayed.

This DOJ press release, titeld "Federal Jury Convicts Former Reality Television Personality for Downloading and Possessing Child Sexual Abuse Material," provides these additional offense details and more of the sentencing specifics:

According to court documents and evidence presented at trial, Joshua James Duggar, 33, of Springdale, repeatedly downloaded and viewed images and videos depicting the sexual abuse of children, including images of prepubescent children and depictions of sadistic abuse.  Duggar, a former reality television personality who appeared with his family on the TLC series “19 Kids and Counting,” installed a password-protected partition on the hard drive of his desktop computer at his used car lot in Springdale to avoid pornography-detecting software on the device.  He then accessed the partition to download child sexual abuse material from the internet multiple times over the course of three days in May 2019.  The password for the partition was the same one he used for other personal and family accounts.  Duggar downloaded the material using the dark web and online file-sharing software, viewed it, and then removed it from his computer....

Duggar was convicted of receipt and possession of child pornography. His sentencing date has not been scheduled yet.  Receipt of child pornography is punishable by a term of imprisonment of five to 20 years. Possession of child pornography depicting prepubescent children has a maximum penalty of 20 years of imprisonment as well.  A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

Though the exact sentencing range that Duggar will now face under the guidelines will depend on a lot of the particulars of his downloading activities, he is now certain to receive a federal prison term of at least five years due to his conviction on a receipt charge.  In addition, because the child porn guideline §2G2.2 has so many significant enhancement, he could be facing a guideline sentencing range of well over decade.  (Some USSC data for Fiscal Year 2020 here shows in Table 7 that the average national child porn sentence was about 8.5 years and the average sentence for child porn in the Western District of Arkansas was a few months over 7 years.  Though the child porn guidelines are quite harsh, they are the guidelines that judges depart down from most frequently.)

Brock Turner 2.0 in New York?: privileged teen receives surprisingly lenient sentence for multiple sex offenses (and now national attention)

Because there are literally tens of thousands of state and federal sentences imposed every month, one can always find an array of notable stories of notable leniency and notable severity in individual sentencings.  But only a handful of sentencing stories ever garner broad national attention, and a variety of predictable and unpredictable factors usually account for what gives certain sentencing stories particular salience.  The case of Stanford swimmer Brock Turner, the 20-year old given only six months in a California jail for a sexual assault, had a bunch of factors that led it to receive more attention than any single state sentence of recent vintage.  I am now wondering if the lenient sentence this week of Christopher Belter might also have similar factors.

This USA Today article provide these details under the headline, "A New York man pleaded guilty to rape and sexual abuse charges. He wasn't sentenced to prison":

A New York man who pleaded guilty to rape and sexual abuse charges will not face prison time, and instead was sentenced to probation earlier this week. Christopher Belter, 20, in 2019 pleaded guilty to felony charges including third-degree rape and attempted first-degree sexual abuse. He also pleaded guilty to two misdemeanor sexual abuse charges, according to multiple reports.

The crimes against four victims occurred when he was 16 and 17 years old. Three of the victims were 16 years old at the time, and one was 15. Belter was facing a maximum sentence of up to eight years in prison. But Niagara County Court Judge Matthew J. Murphy III on Tuesday gave the man eight years probation. The judge said a prison sentence would be "inappropriate.”

“I’m not ashamed to say that I actually prayed over what is the appropriate sentence in this case because there was great pain. There was great harm. There were multiple crimes committed in the case,” Murphy said, according to WKBW. “It seems to me that a sentence that involves incarceration or partial incarceration isn’t appropriate, so I am going to sentence you to probation,” he added.

Belter will have to register as a sex offender under his sentence, according to multiple reports.

Steven Cohen, an attorney representing one of the victims, said in a statement to USA TODAY that his client is “deeply disappointed in the sentencing.” He added that his client “threw up in the ladies room following the sentencing."

“I have been practicing law for over 30 years. If Chris Belter was not a white defendant from a rich and influential family, it is my belief he wouldn’t have received the original plea deal, and he would surely have been sentenced to prison,” Cohen said. “The greater harm, however, is that the sentencing in this matter would seem to perpetuate the insane belief that rape is not a serious crime and that its occurrence results in little consequence to the perpetrator. Our society needs to do much better,” he added.

Barry Covert, Belter's attorney, said the man “is tremendously remorseful for what he's done.” "There are clients who are never able to empathize with their victims no matter how much counseling they receive. Chris isn't one of them," he said, The Buffalo News reported....

The crimes occurred in 2017 and 2018 at Belter’s parents' home in Lewiston, New York. In 2019, judge Sara Sheldon, who has since retired, put Belter on two years’ interim probation. She said he could apply for youthful offender status, which would have lowered his maximum sentence and allowed him not to register as a sex offender.

Belter confirmed in court last month that he violated the agreement by installing software on a computer to view pornography. Murphy later denied Belter the youthful offender status, ruling that he would be sentenced as an adult.

Niagara County District Attorney Brian Seaman said in a statement obtained by USA TODAY: "Based on the seriousness of these crimes, the very powerful and emotional statements of the victims and the fact that Christopher Belter was already given a shot at interim probation and failed, my office has been very clear that we believed a prison sentence was entirely appropriate in this case.”

Here is just a sampling of some of the other national press coverage that this case is now receiving:

From ABC News, "Judge sentences admitted rapist to probation, no prison time"

From CBS News, "A judge sentenced a rapist to probation. One of his victims warns "he will offend again"

From NBC News, "Judge says prison 'inappropriate' for New York man who sexually assaulted 4 teens"

US Sentencing Commission issues new report on "Federal Sentencing of Child Pornography: Production Offenses"

Back in June 2021, as detailed in this post, the US Sentencing Commission released this big report, running nearly 100 pages, titled "Federal Sentencing of Child Pornography: Non-Production Offenses."  A follow-up report, running "only 72 pages" was released today here under the title "Federal Sentencing of Child Pornography: Production Offenses."  This USSC website provides some "key findings" from the report, and here are some of those findings:

• Although child pornography production cases comprise a small percentage of the overall federal caseload, the expansion of digital and mobile technology has contributed to a 422 percent increase in the number of production offenders sentenced over a 15-year period, from 98 offenders in fiscal year 2005 to 512 offenders in fiscal year 2019.

• Child pornography production offenders generally received lengthy sentences. In fiscal year 2019, production offenders received an average sentence of almost 23 years of imprisonment (275 months), ranging from one year to life imprisonment. Furthermore, over three-quarters (78.0%) were convicted under a statute carrying at least a 15-year mandatory minimum penalty. Most child pornography production offenders, however, received a variance below the applicable guideline range (57.2% of the 512 cases).

• A majority (56.6%) of child pornography production cases sentenced in fiscal year 2019 involved a single victim. However, a substantial minority of cases (41.0%) involved more than one minor victim, ranging from two to 440 victims.

• The typical production offender maintains a position of trust over the victim and has physical access to the child during the production of child pornography. Of the 512 child pornography production offenders sentenced in fiscal year 2019, 60.3 percent were related to or otherwise maintained a position of trust over the minor victim, whether through familial relationships or by virtue of the offender’s role as a teacher or a coach, for example.

• Due to technological advancements and the changing nature of production offenses, an increasing proportion of production offenders exploit victims remotely through use of the internet or mobile devices. For example, over one-third (35.4%) of production offenders sentenced in fiscal year 2019 were internet strangers who met their victims through an online platform, more than double the proportion of offenders sentenced in fiscal year 2010 who met their victims online (14.3%)....

• The vast majority of fiscal year 2019 child pornography production offenders (80.9%) were sentenced for an offense that involved sexual contact of a minor....

• Although the average sentence imposed was lengthy for child pornography production offenders (275 months), courts imposed longer sentences (averaging over 300 months) on offenders who:

  • victimized infants or toddlers (average sentences of 364 months and 330 months, respectively);
  • were parents of victims (340 months, on average);
  • engaged in or facilitated the sexual contact of a minor during the offense (307 months, on average); or
  • incapacitated victims (313 months, on average).

Prior recent related post:

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses" 

Split Tenth Circuit panel upholds constitutionality of Colorado's indefinite sentencing of sex offender for 37 years

A helpful reader made sure I did not miss the interesting split panel ruling last week by the Tenth Circuit in Wimberly v. Williams, No. 20-1128 (10th Cir. Sept. 29, 2021) (available here). The majority opinion starts by setting out the essence of the case of the panel's ruling:

In 1984, Mr. Bruce E. Wimberly pleaded guilty to first-degree sexual assault.  The Colorado trial court accepted his plea and considered the sentencing options. One option was a conventional sentence: a determinate prison term up to 24 years. But the Colorado Sex Offenders Act of 1968 provided a second option: an indeterminate term of confinement lasting anywhere from one day to life imprisonment.  The court chose the second option, made additional findings required by the statute, and imposed an indeterminate term of confinement ranging from one day to life imprisonment.

More than 24 years have passed.  With passage of this time, Mr. Wimberly argues that the Constitution requires his release because he didn’t receive a new hearing at the end of the 24-year determinate term (that the trial court chose not to impose).  Without a new hearing, Mr. Wimberly claims that his continued confinement violates his rights to equal protection and due process.

The federal district court rejected Mr. Wimberly’s arguments, and so do we.  The state trial court provided adequate procedural safeguards when imposing the indeterminate term of confinement, and that term could last anywhere from a single day to the rest of Mr. Wimberly’s lifetime.  The State thus had no constitutional duty to provide a new round of procedural safeguards 24 years into Mr. Wimberly’s indeterminate term.

Judge McHugh dissents, arguing that Colorado functionally subjected the defendant to an unconstitutional form of civil confinement in an opinion that starts this way:

Petitioner-appellant Bruce E. Wimberly has been imprisoned for over 37 years, which is more than a decade longer than the maximum permissible sentence for his underlying crimes.  Over this past decade, Colorado has denied Mr. Wimberly the procedural protections it affords to civil committees in its custody.  The majority sees no constitutional problem with this; but I do. I therefore respectfully dissent.

The majority’s conclusion stems from its premise that “it doesn’t matter whether we call this a sentence or a criminal commitment.” Maj. Op. at 9.  I reject this premise.  Mr. Wimberly is presently confined under the Colorado Sex Offenders Act of 1968 (“CSOA” or the “Act”), which, in a section titled “Indeterminate commitment,” provides that courts “may, . . . in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the [Department of Corrections] for an indeterminate term having a minimum of one day and a maximum of his or her natural life.” Colo. Rev. Stat. § 18-1.3-904 (emphasis added). In my view, both U.S. Supreme Court precedent and Colorado state law support the conclusion that the CSOA provides for a scheme of criminal commitment, not sentencing.

From my premise that Mr. Wimberly is serving a criminal commitment, I further conclude Mr. Wimberly’s present confinement violates the Equal Protection Clause of the Fourteenth Amendment.

R. Kelly now likely facing a long sentence after convictions on all federal sex trafficking charges

I have not been following the federal prosecution of R. Kelly closely, but a whole bunch of news alerts today let me know he is now entering the sentencing stage.  This CNN piece sets out the specifics of the guilty verdict: "Kelly was found guilty of nine counts -- one count of racketeering and eight counts of violating the Mann Act.  Of the 14 underlying acts for the racketeering count, he needed to be found guilty of at least two to be convicted of that count.  Jurors found prosecutors had proven all but two of the 14 underlying racketeering acts."  And, based in part on this NBC News account and other discussions of his wrongdoing, federal sentencing is likely to be grim for Mr. Kelly:

R. Kelly, the R&B superstar who has long been trailed by accusations of sexual misconduct and abuse, was found guilty Monday on all counts in a high-profile sex-trafficking case, capping a trial that featured hours of graphic testimony from the singer’s accusers.

Kelly, who has been in custody for much of the time since he was formally charged in 2019, was convicted on one count of racketeering and eight counts of violating the Mann Act, a law that bars the transport of people across state lines “for any immoral purpose.”

Kelly, best known for the 1996 hit “I Believe I Can Fly,” pleaded not guilty to all charges in the case. The singer, whose real name is Robert Sylvester Kelly, did not take the stand in his own defense.

The prosecutors in the trial, which centered around the allegations of six people, alleged that the singer was a serial sexual predator who abused young women as well as underage girls and boys for more than two decades. Prosecutors further alleged that the singer and his entourage led a criminal enterprise that recruited and groomed victims for sex, arranging for them to travel to concerts and other events across the U.S.

In a closing argument that lasted two days, Assistant U.S. Attorney Elizabeth Geddes accused Kelly and his entourage of using tactics from “the predator playbook” to control his victims. Kelly’s alleged tactics included confining victims in hotel rooms or his recording studio, managing when they could eat and use the bathroom, and forcing them to follow various “rules,” including demanding they call him “Daddy.”

“It is now time to hold the defendant responsible for the pain he inflicted on each of his victims,” Geddes said Thursday in federal court in Brooklyn.  “It is now time for the defendant, Robert Kelly, to pay for his crimes. Convict him.”...

​​The singer’s lawyers attempted to portray his accusers as “groupies” who sought to exploit his fame and take advantage of the #MeToo movement.  Deveraux Cannick, one of Kelly’s defense lawyers, argued that testimony from several of his client’s accusers was false, saying in his closing argument: “Where is the fairness to Robert? Where’s the integrity of the system?”...

“Surviving R. Kelly,” a Lifetime documentary series released in 2019 that featured testimony from several accusers, intensified calls for the singer to face legal consequences for his alleged pattern of abuse.  Kelly was previously acquitted on child pornography charges in 2008.

Though I doubt anyone will make a follow-up documentary titled "“Sentencing R. Kelly,” I will certainly plan to keep an eye on this case in the months to come because I suspect the feds will be seeking a pretty steep sentencing term (based on what should be severe guideline calculations) while the defense will surely seek a way below-guideline sentence.  The sentencing is apparently not scheduled until May 2022, so we will all have plenty of time to make predictions.

"Sex Offender Registration in a Pandemic"

The title of this post is the title of this new piece authored by Wayne Logan now posted on SSRN. Here is its abstract:

This Essay, part of a symposium examining how the COVID-19 pandemic has affected the criminal justice system, addresses whether, and how, state and local governments maintained their requirement that individuals convicted of sex offenses meet with authorities in person to confirm and update their registry information.  Focusing in particular on the first months of 2020, the tale told highlights the distinctiveness of registration: while many governmental operations were suspended, or went online, in-person registration very often persisted.  As a result, registrants were required to travel to a government office (perhaps by public transport), wait in a closed space very possibly with poor ventilation, sometimes for extended periods of time, where social distancing might not have been feasible.  If they failed to satisfy the registration requirement they faced significant criminal punishment.

The in-person registration requirement remained in effect even though registrants often share many of the same health and age-related characteristics of the broader at-risk population, risks often aggravated by sanitary problems associated with chronic homelessness (e.g., lack of access to soap for hand washing) that registrants often experience.  As a result, in-person registration posed the threat of registrants transmitting and contracting the virus, affecting not only the registrants themselves, but also friends, family, and employers, as well as the governmental authorities with whom they had to interact.  As states and localities undertook aggressive measures to stem the spread of COVID-19, the persistence of in-person registration provides a stark reminder of the continued exceptionalism of registration and the population it targets (individuals convicted of sex offenses).

The Essay explores the reasons accounting for this distinctiveness and provides some thoughts on how and why in-person registration persisted in the early stages of the pandemic when so many other governmental operations were suspended or significantly modified.

Might SCOTUS be interested in taking up victim rights issues surrounding the Jeffrey Epstein case?

I find it somewhat surprising that the US Supreme Court has not yet ever taken up any cases dealing with the Crime Victims' Rights Act (CVRA), the 2004 legislation which significantly expanded the statutory rights of federal crime victims and creates duties on federal courts to ensure these rights are respected.  But, as highlighted by this new Politico article, headlined "Jeffrey Epstein accuser asks Supreme Court to uphold victims' rights," a high-profile case now provides them with a remarkable new opportunity to take up CVRA issues.  Here are the basics:

A woman who accused Jeffrey Epstein of sexually abusing her beginning when she was 14 is asking the Supreme Court to rule that federal prosecutors violated her rights by failing to consult her before cutting what critics have dubbed a sweetheart deal with the since-deceased financier and philanthropist.

The so-called nonprosecution agreement precluded U.S. authorities in south Florida from bringing federal charges against Epstein, despite similar allegations from dozens of women, if Epstein pleaded guilty to two state felonies related to soliciting a minor for sex.

Lawyers for Courtney Wild are asking the justices to overturn an appeals court ruling from June that held that Wild could not use a civil suit to enforce her rights under the Crime Victims’ Rights Act, a law Congress passed in 2004 to guarantee victims of crime certain protections in the federal criminal justice system.

The 7-4 ruling from the full bench of the 11th U.S. Circuit Court of Appeals called the government’s actions in the case “shameful,” but concluded that while the statute gives victims rights to jump into federal criminal proceedings, it doesn’t allow them to sue when no such case was ever filed.

“The en banc decision leaves the Government free to negotiate secret, pre-indictment non-prosecution agreements without informing crime victims,” attorneys Paul Cassell, Brad Edwards and Jay Howell wrote in the high court filing.

Over at The Volokh Conspiracy, Paul Cassell yesterday had this lengthy post about his new cert petition under this full headline: "Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?: My cert petition to the U.S. Supreme Court asks it review the Eleventh Circuit en banc's decision concluding that Epstein's victims cannot enforce their right to confer with prosecutors under the Crime Victims' Rights Act because the Department never formally filed charges against Epstein." Here is how his post gets started (with links from the original):

Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims' Rights Act (CVRA) before prosecutors file charges.  The petition, filed by one of the nation's leading crime victims' attorneys, Bradley J. Edwards, and me on behalf of one of Epstein's victims — Courtney Wild — seeks review of a 7-4 en banc decision from the Eleventh Circuit.  The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation — as they did in the Epstein case.  This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild's petition to review this very important legal question.

"Sex Offender Registration and Community Notification Laws: An Empirical Evaluation"

The title of this post is the title of this new book of essays.  I reached out to the editors of this text to provide a bit of background and context for this new volume:

Sex offender registration and community notification (SORN) surely numbers among the most significant social control methods of the past several decades. Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach. 

Since its origin in the early 1990s, basic questions have existed regarding the effects of SORN, including whether it actually achieves its intended purpose of reducing sexual offending. Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding SORN.  As readers might be aware, the American Law Institute, as part of its overhaul of the Model Penal Code’s sex offense-related provisions, has tentatively approved a slate of reforms advocating a vastly reduced approach to registration and discontinuation of community notification.  The book promises to be an invaluable resource as policy-makers begin to consider whether SORN laws should be retooled or perhaps done away with altogether. Here is the SSRN link and abstract for the book:

Despite being in existence for over a quarter century, costing multiple millions of dollars and affecting the lives of hundreds of thousands of individuals, sex offender registration and notification (SORN) laws have yet to be subject to a book-length treatment of their empirical dimensions, examining their premises, coverage, and impact on public safety.  This volume, edited by Professors Wayne A. Logan and J.J. Prescott, assembles the leading researchers in the field to provide an in-depth look at what have come to be known as “Megan’s Laws,” offering a social science-based analysis of one of the most important and controversial criminal justice system initiatives undertaken in modern times. The editors attach the title page, table of contents, and preface of the volume.

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses"

Despite only having a single commissioner, the US Sentencing Commissioner is continuing to produce interesting federal sentencing data and reports.  This latest USSC report, running nearly 100 pages, was released today under the titled "Federal Sentencing of Child Pornography: Non-Production Offenses."   This report drills into data from fiscal year 2019, and this webpage sets out these "key findings" from the report:

• Facilitated by advancements in digital and mobile technology, non-production child pornography offenses increasingly involve voluminous quantities of videos and images that are graphic in nature, often involving the youngest victims.
  • In fiscal year 2019, non-production child pornography offenses involved a median number of 4,265 images, with some offenders possessing and distributing millions of images and videos.
  • Over half (52.2%) of non-production child pornography offenses in fiscal year 2019 included images or videos of infants or toddlers, and nearly every offense (99.4%) included prepubescent victims.

• Constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress in the PROTECT Act of 2003, § 2G2.2 contains a series of enhancements that have not kept pace with technological advancements.  Four of the six enhancements — accounting for a combined 13 offense levels — cover conduct that has become so ubiquitous that they now apply in the vast majority of cases sentenced under § 2G2.2.
  • For example, in fiscal year 2019, over 95 percent of non-production child pornography offenders received enhancements for use of a computer and for the age of the victim (images depicting victims under the age of 12).
  • The enhancements for images depicting sadistic or masochistic conduct or abuse of an infant or toddler (84.0% of cases) or having 600 or more images (77.2% of cases) were also applied in most cases.

• Because enhancements that initially were intended to target more serious and more culpable offenders apply in most cases, the average guideline minimum and average sentence imposed for nonproduction child pornography offenses have increased since 2005.
  • The average guideline minimum for non-production child pornography offenders increased from 98 months in fiscal year 2005 to 136 months in fiscal year 2019.
  • The average sentence increased more gradually, from 91 months in fiscal year 2005 to 103 months in fiscal year 2019.

• Although sentences imposed remain lengthy, courts increasingly apply downward variances in response to the high guideline ranges that apply to the typical non-production child pornography offender.
  • In fiscal year 2019, less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range.
  • The majority (59.0%) of non-production child pornography offenders received a variance below the guideline range.
  • Non-government sponsored below range variances accounted for 42.2 percent of sentences imposed, and government sponsored below range variances accounted for 16.8 percent.

• Section 2G2.2 does not adequately account for relevant aggravating factors identified in the Commission’s 2012 Child Pornography Report that have become more prevalent.
  • More than forty percent (43.7%) of non-production child pornography offenders participated in an online child pornography community in fiscal year 2019.
  • Nearly half (48.0%) of non-production child pornography offenders engaged in aggravating sexual conduct prior to, or concurrently with, the instant nonproduction child pornography offense in fiscal year 2019.  This represents a 12.9 percentage point increase since fiscal year 2010, when 35.1 percent of offenders engaged in such conduct.

• Consistent with the key aggravating factors identified in the Commission’s 2012 Child Pornography Report, courts appeared to consider participation in an online child pornography community and engaging in aggravating sexual conduct when imposing sentences, both in terms of the length of sentence imposed and the sentence relative to the guideline range.
  • In fiscal year 2019, the average sentence imposed increased from 71 months for offenders who engaged in neither an online child pornography community nor aggravating sexual conduct, to 79 months for offenders who participated in an online child pornography community, to 134 months for offenders who engaged in aggravating sexual conduct.
  • In fiscal year 2019, offenders who engaged in aggravating sexual conduct were sentenced within their guideline ranges at a rate nearly three times higher than offenders who did not participate in online child pornography communities or engage in aggravating sexual conduct (44.3% compared to 15.6%).

• As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.
  • For example, the sentences for 119 similarly situated possession offenders ranged from probation to 228 months though these 119 possession offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
  • The sentences for 52 similarly situated receipt offenders ranged from 37 months to 180 months though these 52 receipt offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
  • The sentences for 190 similarly situated distribution offenders ranged from less than one month to 240 months though these 190 distribution offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.

• When tracking 1,093 nonproduction child pornography offenders released from incarceration or placed on probation in 2015, 27.6 percent were rearrested within three years.
  • Of the 1,093 offenders, 4.3 percent (47 offenders) were rearrested for a sex offense within three years.
  • Eighty-eight offenders (8.1% of the 1,093) failed to register as a sex offender during the three-year period.

Colorado Supreme Court rules mandatory lifetime sex offender registration violates the Eighth Amendment's prohibition on cruel and unusual punishment

A helpful reader made sure I saw an interesting ruling, handed down today by a 6-1 vote, from the Colorado Supreme Court in People in the Interest of T.B., 2021 CO 59 (Colo. June 28, 2021) (available here).  Here is how the majority opinion starts:

T.B. committed two sexual offenses as a minor — the first when he was eleven years old and the second when he was fifteen.  Because he was twice adjudicated delinquent for unlawful sexual behavior, the Colorado Sex Offender Registration Act, §§ 16-22-101 to -115, C.R.S. (2020) (“CSORA”), requires T.B. to register as a sex offender for the remainder of his natural life.  Now an adult, T.B. seeks review of the juvenile court’s denial of his petition to deregister, arguing that CSORA’s mandatory lifetime sex offender registration requirement for offenders with multiple juvenile adjudications violates the Eighth Amendment’s prohibition on cruel and unusual punishment.  We agree.

Mandatory lifetime sex offender registration brands juveniles as irredeemably depraved based on acts committed before reaching adulthood.  But a wealth of social science and jurisprudence confirms what common sense suggests: Juveniles are different.  Minors have a tremendous capacity to change and reform.  As such, mandating lifetime sex offender registration for juveniles without providing a mechanism for individualized assessment or an opportunity to deregister upon a showing of rehabilitation is excessive and violates the Eighth Amendment.  Accordingly, we affirm in part and reverse in part the judgment of the court of appeals and remand with instructions to order a new hearing on T.B.’s petition to deregister.

As the T.B. opinion notes, the Ohio Supreme Court has issued a similar ruling some years ago and top courts in Pennsylvania and New Jersey have found due process problems with mandatory juve sex offender registration.  As the T.B. opinion also notes, the Colorado General Assembly recently passed a bill to eliminate mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications, so the state likely will not have an interest in pursuing any appeal of this ruling.

Unanimous South Carolina Supreme Court decides sex offender registry is "unconstitutional absent any opportunity for judicial review to assess the risk of re-offending"

Last week, the South Carolina Supreme Court issued an interesting opinion about the state's sex offender registry in Powell v. Keel, No. 28033 (S.C. June 9, 2021) (available here), which concludes this way:

Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA's requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending.  Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review.  Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry.

High-profile reminder that parole is rarely a given, especially for a prisoner claiming innocence

Though decided earlier this month, a high-profile denial of parole is garnering headlines this week.  This USA Today story, headlined "Bill Cosby denied parole after he refuses sex offender treatment program," provides these details:

Bill Cosby will not be released from prison anytime soon.  The 83-year-old actor, who is currently serving three to 10 years in Pennsylvania state prison after being convicted of sexual assault in 2018, has been denied parole nearly three years into his sentence.

The Pennsylvania State Parole Board declined Cosby's parole request on May 11 partly over his need to participate in "a treatment program for sex offenders and violence prevention," and "failure to develop a parole release plan," according to a state board action letter provided to USA TODAY.  The board also cited a "negative recommendation" from the Department of Corrections.

Cosby's representative, Andrew Wyatt, told USA TODAY Thursday that the decision "is not a surprise" to the disgraced TV star because the board explicitly stated he would be denied parole "if he did not participate in SVP (Sexually Violent Predator) courses."  But Wyatt said Cosby, who has maintained his innocence, has no plans to attend the therapy programs. "The Cosby Show" star has previously said he expects to serve his full 10-year sentence and vowed to show no remorse for crimes he said he didn't commit.

"Mr. Cosby has vehemently proclaimed his innocence and continues to deny all allegations made against him, as being false, without the sheer evidence of any proof," Wyatt said in a statement to USA TODAY on Thursday.  "Mr. Cosby continues to remain hopeful that the Pennsylvania State Supreme Court will issue an opinion to vacate his conviction or warrant him a new trial."

Cosby was the first celebrity to go on trial in the #MeToo era and was convicted of drugging and raping Andrea Constand, a former professional basketball player who worked for his alma mater, Temple University, in Philadelphia in 2004.  Cosby appealed his conviction, citing multiple alleged "errors" by the trial judge in his case, but the state appeals court upheld his verdict in December 2019.  The Pennsylvania Supreme Court accepted Cosby's appeal in June 2020, thus raising the possibility it might be overturned in the future....

He's currently serving out his sentence at State Correctional Institution at Phoenix, a state prison in Skippack Township, Pennsylvania.  He will be eligible for parole in September after serving the three-year minimum of his sentence.  To be considered for parole, the Pennsylvania State Parole Board said Cosby not only needs to complete a treatment program, but he must maintain a "clear conduct record."

"When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime"

The title of this post is the title of this new paper authored by Ira Mark Ellman now available via SSRN. Here is its abstract:

In Romer v. Evans the Court drew a constitutional distinction between civil laws enacted for a broad public purpose that justifies "the incidental disadvantages they impose on certain persons," and laws that have "the peculiar property of imposing a broad and undifferentiated disability on a single named group".  Laws of the second kind "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."  The difficulty lies in deciding when the inference properly becomes a conclusion that the law violates the Equal Protection Clause.  The more sweeping and unusual the burdens imposed on the targeted group, the more difficult it may be to discern a common policy explaining them other than the forbidden purpose of harming their targets.  At some point the animus inference may be strong enough to require scrutiny of the laws' purported rationale, including whether it has any actual basis in fact.

An astonishingly broad array of burdens are imposed today on anyone ever convicted of almost any sexual offense of any kind or seriousness, including but extending far beyond their simple inclusion in publicized websites listing "sex offenders."  No similar regime has ever been imposed on any other group of law-abiding former felons who have fully served the sentence for the crime they committed years earlier.  This "registry regime" raises as strong an inference of animus as there was in any of the four cases in which the Court sustained such claims, and the claim that it is justified by the clearly valid purpose of reducing the incidence of sexual offending does not survive the scrutiny of scientific studies which find the registry ineffective and often counterproductive.  Nor does the fact that many sexual offenses are never reported to law enforcement authorities cast any doubt on the validity of those studies or on the legal or policy analyses relying on them.  Much of the registry regime must therefore fall under an Anti-Animus principle.

"Sex Offenders and the Free Exercise of Religion"

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

In a variety of ways, sex offenders in the United States find themselves in a difficult position.  One of the lesser-known ways relates to the free exercise of religion.  Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present).  Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether.  And this hardship has a bit of irony in it too.  Back in prison, sex offenders could worship freely with others; now ostensibly free, they can no longer do so.

This simple problem has real scope — tens (maybe hundreds) of thousands of people barred from essentially all religious services, sometimes for decades, sometimes for life.  Moreover, these prohibitions are often vague and overbroad — and so restrictive that low-level administrators (like sheriffs and probation officers) are often pushed into softening or waiving them.  But this ends up creating a kind of licensing scheme, whereby low-level government officials make — on their own, without any formal criteria — ad-hoc and practically unreviewable decisions about who gets to go to church and under what conditions.  Risks of selective enforcement, discrimination, and abuse are obvious.

These rules have come into being as if concerns about the free exercise of religion have no weight at all.  But this is not the case.  And, in fact, a robust body of law protects the free exercise of religion, requiring exemptions from religiously burdensome laws.  Now this does not mean that sex offenders should be universally exempt from any and all restrictions regarding church attendance.  There are probably some people who pose such a threat to children that they should be kept away from churches.  Courts will have to answer tricky questions — who should be barred, who should decide who is barred, and on what criteria? — that require nuanced and elaborate answers.  Yet informed by analogies from other areas of law (like freedom of speech) where courts have wrestled with similar issues, this Article offers some recommendations that are analytically rigorous, practically realizable, and judicially manageable.