Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related preview posts:

• SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"
• Another effective preview of coming SCOTUS review of SORNA delegation in Gundy 
• Previewing the two capital punishment administration cases before SCOTUS this fall 
• Previewing SCOTUS consideration of capital competency (and making a case for abolition) 

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

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

• You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
• "Why Bill Cosby may not spend any time in prison"
• "Are Elderly Criminals Punished Differently Than Younger Offenders?" 
• "Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?" 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Details on not yet complete sentencing of Bill Cosby

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

• You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
• "Why Bill Cosby may not spend any time in prison"
• "Are Elderly Criminals Punished Differently Than Younger Offenders?" 
• "Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?" 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

• You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
• "Why Bill Cosby may not spend any time in prison"
• "Are Elderly Criminals Punished Differently Than Younger Offenders?" 

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

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

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

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

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

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

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

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

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

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

"Sex Offenders, Custody and Habeas"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Split Second Circuit panel reverses lengthy child porn sentence for second time; dissent notes "sentence is barbaric without being all that unusual"

I do not tend to blog much any more about circuit opinions conducting reasonableness review because, now more than a decade since the Supreme Court ensured reasonableness review would be very deferential thanks to Rita, Gall and Kimbrough, few circuit sentencing opinions break any new ground.  But though a Second Circuit panel opinion yesterday, US v. Sawyer, No. 15-2276 (2d Cir. June 19, 2018) (available here), does not break new ground, it still struck me as blogworthy for both the majority opinion and the dissent.

The majority opinion in Sawyer is well summarized by the preamble to the opinion: 

Appeal from a judgment of the United States District Court for the Northern District of New York (D’Agostino, J.) imposing a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography. This court previously vacated as substantively unreasonable a sentence of 360 months of imprisonment for the same offenses, identifying specific deficiencies in the district court’s analysis. The district court did not sufficiently address those deficiencies on remand and suggested that it would have difficulty putting aside its previously-expressed views.

The key factor that appears to have driven the original panel opinion and this second reversal was the "the district court’s failure to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  Tellingly, even at the second sentencing, the district court stressed that the guidelines called for 80 years in prison(!), suggesting no "failure to afford sufficient weight to the way [the defendant was] raised in determining [his] sentence, looking at the fact that [the original sentence] departed by 50 years from the [80 year] guideline range."  In this way in this case,  we can and should see how extreme guideline ranges can persistently distort a district court's sentencing decision-making even after a circuit court has concluded that the district court failed to comply with the requirements of the first time around 3553(a).

Beyond noticing the impact and import of broken guidelines even in a case in which everyone agrees they should not be followed, the Sawyer case struck me as blogworthy because of a (casual?) line in the dissenting opinion by Judge Jacobs. Here is the context for the line quoted in the title to this post, with my emphasis added:

In decrying the 25-year sentence, the majority opinion observes (fairly) that this case is not the most heinous or egregious on record.  At the same time, however, this is not a case such as United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843 F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed solely for looking at images created by others, and in which any harm to a child was inflicted at one or more removes. This defendant was hands-on.  He produced the pornography, and he used a 4-year-old and a 6-year-old to do it.  For these acts, a 25-year sentence is not a shocking departure from sentences routinely imposed in federal courts for comparable offenses — especially considering that the mandatory minimum is fifteen.  The sentence is barbaric without being all that unusual.

I appreciate the candor and yet remain stunned by Judge Jacobs stating simply that the defendant's sentence here is "barbaric" but yet not "all that unusual" and thus ought to be affirmed despite the obligation of circuit courts to review sentences for their reasonableness in light of the requirements of 3553(a).

Lamenting the ripples of Judge Persky's recall

John Pfaff has authored this recent Washington Post commentary under the full headline "California ousts an elected judge. Everybody loses. The recall of Aaron Persky in the Stanford swimmer sexual assault case will make judges harsher, and thwart progress on perils of mass incarceration."  Here are excerpts (and readers should click through to the original for the multitude of links supporting the various points presented):

California voters last week recalled a judge for the first time in more than 85 years.  The politics of punishment are already pathological; the recall will make them worse.... As an academic who studies criminal justice, I have opposed the recall effort since I first heard about it because of potential consequences that reach well past Persky’s now-former courtroom: The recall will make judges more punitive, thwart progress toward scaling back mass incarceration and — though Turner and Persky are both white — hurt minorities disproportionately.

A central reason the United States punishes its citizens more than any other country is that actors in our criminal justice system face more political pressure than they do elsewhere.  Only this country allows judges to be elected, which 39 states choose to do. It’s a consistent theme: We are also the only country that elects its prosecutors. While a concern in the Andrew Jackson era about corrupt appointment processes drove the decision to elect judges, more recent concerns about the costs of a politicized judiciary have led to increasing calls to return to appointing them.

In criminal justice, the costs of politicization are unambiguous: They make judges more punitive.  The empirical studies on judges and crime tell a consistent story.  Judges sentence more aggressively as their election dates near and as their elections become more contested.  Elections make judges nervous, and nervous judges are harsh judges.

This harshness is entirely logical.  Judges are harsh because the costs of mistakes are asymmetric.  There is little downside to harsh sanctions, because the error costs are invisible: How do you show that someone would not have reoffended had they left prison sooner?  The costs of being overly lenient, however, are inescapable.  That sort of failure produces an identifiable victim for political opponents to capitalize upon.

The recall turned on a slightly different asymmetry but one that equally pushes judges toward severity. An overly lenient sentence will be seen as insulting the victim, while an overly harsh one will be seen as unfair to the defendant.  The former error, as the Persky recall demonstrates, is costlier (unless, perhaps, the defendant is politically powerful).

Defenders of the recall dismiss this concern by pointing out that recalls are rare. But the lesson here isn’t only about recalls.  The Persky case makes clear to judges and their detractors alike that judges can lose their jobs — in a recall, in a primary, in a general election — if just one or two decisions anger someone with sufficient political capital to oppose them.  The Persky recall campaign highlighted only five decisions out of thousands that the judge handed down.  Persky was cleared of any wrongdoing by California’s Commission on Judicial Performance, and public defenders in Santa Clara were quick to argue that he was a fair judge.  Even the prosecutor in Santa Clara opposed the recall. [Professor Michele] Dauber, however, is a politically well-connected professor at a nationally acclaimed law school with strong media ties.  The success of her campaign tells judges, and the politically powerful who are unhappy with their decisions, that these campaigns can work even with little evidence, as long as there are one or two bad cases to point to.

The recall’s political costs are already apparent.  Not only did Democratic legislators pass new mandatory minimum sentences for sex offenses in response to the recall to make sure they looked tough enough on crime, but public defenders in California also report that judges seem harsher now, out of fear of being targeted next.

Some defenders of the recall concede that it may make judges harsher, but only regarding sex crimes.  The judges, they say, are smart enough to limit what they have learned to the facts of the recall. But this is overly optimistic. Judges have no idea what issue will trigger the next recall or primary challenge, only that such campaigns can work....

The recall will make judges more aggressive, and in ways that will never be neatly confined to the issues in the Turner and Persky cases.  More people will be sent to prison, and that increase won’t make us safer. And since a majority of people in prison are black or Hispanic, the impact of this toughness will fall disproportionately on minorities.  For those hoping to see the United States become a less punitive place, the recall’s success is disappointing.

A few of many prior posts on the Persky recall:

• NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
• Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
• "Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair" 
• "Brock Turner: Sorting Through the Noise" 
• "I was Raped. And I Believe The Brock Turner Sentence Is a Success Story." 
• Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner
• Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner

"Treatment of sex offenders depends on whether they've challenged rules"

The title of this post is the headline of this lengthy new Detroit Free Press article. I recommend the piece in full, and here is how it gets started and additional excerpts:

Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan's sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they'd be off the registry by now, or facing less severe restrictions, have seen no changes.

The law remains in place, unchanged, with the state defending it in more than three dozen lawsuits — many of which it has already lost.  The controversy involves a ruling two years ago by the U.S. 6th Circuit Court of Appeals in Cincinnati that said provisions enacted in 2006 and 2011 and applied to offenders convicted before then violates constitutional protections against increasing punishments after-the-fact.  Last October, the U.S. Supreme Court declined to hear the state's challenge to that ruling, effectively upholding it.

The rules prohibit offenders — many of whom have gone years if not decades without committing any crimes — from legally living, working or even standing within 1,000 feet of a school, a regulation that many say makes it hard for them to work, or to pick up or see their kids at school, and has forced some to give up jobs and homes.  The rules also require offenders to immediately register email addresses or vehicles and report to police as often as four times a year, in some cases, for the rest of their lives.

Because the appeals court decision came in civil cases and not class action lawsuits, the state has maintained those rulings apply only to the specific plaintiffs who brought them. And with the state Legislature failing to change the law, registrants find themselves in a legal morass, with the requirements they must comply with almost wholly contingent on whether the offender has successfully gone to court.  Michigan now has the fourth-largest sex offender registry in the country, with 43,623 registrants on its database, more than the state of New York, which has 40,623.

The disparities can be wide.  One man convicted 17 years ago of eight counts of sexual contact with several girls under the age of 13 sued prosecutors, arguing that the rules keeping him on the registry — with his photo, name, address listed publicly — for life were unconstitutional.  Last November, after the Supreme Court declined to take up the 6th Circuit decision, the state Court of Appeals agreed, saying those rules no longer apply to him.

But it's different for another man convicted of touching two girls under the age of 16 while drunk 24 years ago in another state but who has had a clean record since.  Last September, as a "Tier 2" offender, he was expecting to come off the registry after nearly a quarter century. But he was abruptly told by police that his case had been reviewed and that since one of those girls was under 13, he’d stay on the list — and be listed among the worst offenders on "Tier 3" — for life.  To this day, under Michigan law, he's subject to all those restrictions from which the first man has been freed....

In Michigan, any legal certainty about what is required of thousands of sex offenders is almost nil.

While some local prosecutors — like those in Wayne and Oakland counties — no longer enforce cases involving retroactive applications of the law, it's far from certain that others are following suit. Macomb County prosecutors, for instance, declined to answer the Free Press' questions about whether they are still enforcing those restrictions. And Michigan State Police — which oversees the registry — says, legally, all restrictions remain in place.

The state’s top law enforcement official, Attorney General Bill Schuette — who is running for governor — won’t say whether the 6th Circuit Court decision should be applied statewide, his office refusing comment.

Prior related post:

• Sixth Circuit panel concludes Michigan sex offender registration amendments "imposes punishment" and thus are ex post unconstitutional for retroactive application 

Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner

As reported in this Fox News piece, "Northern California residents on Tuesday voted to recall the judge who sentenced a former Stanford University swimmer convicted of sexual assault to a short jail sentence instead of prison." Here is more:

Voters opted to oust Santa Clara County Judge Aaron Persky. He was targeted for recall in June 2016 shortly after he sentenced Brock Turner to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Prosecutors argued for a 7-year prison sentence. Turner was instead sentenced to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Critics say Turner's sentece was too lenient.

Persky maintained that he had followed a recommendation from the county probation department. The California Commission on Judicial Performance ruled that the case was handled legally.

The case gained national prominence after the victim read a statement in court before Turner's sentence. The statement made the rounds online and was read on the floor of the U.S. Capitol during a congressional session.... Michele Dauber, a Stanford University professor who led the recall effort, said the election "expresses clearly that sexual assault, sexual violence is serious and it has to be taken seriously by elected officials.” She added: "It's a historical moment when women across all sectors of society are standing up saying enough is enough."

Persky's supporters said his removal set a dangerous precedent. LaDoris Cordell, a former Santa Clara County judge who led a counter campaign against the recall, called the decision "a sad day for the California judiciary." Cordell added, that the vote implies if judges don't concede to popular opinion, "they can lose their job."

Persky has served on the court since 2003. He declined The Associated Press' request for comment late Tuesday. Assistant District Attorney Cindy Hendrickson will serve the last four years of Persky's term, the San Francisco Chronicle reported.

I suppose it is fitting that a local judge recalled for a sentence being too lenient gets replace by a local prosecutor.  Regular readers know there have been lots and lots of prior posts here about the Brock Turner case, including posts in which I expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Persky.  Here is a sampling of the prior posts this case has generated:

• Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
• Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
• NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
• "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
• Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
• Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
• California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
• "Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair" 
• "Put Away The Pitchforks Against Judge Persky" 
• Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner 
• "Brock Turner: Sorting Through the Noise" 
• "I was Raped. And I Believe The Brock Turner Sentence Is a Success Story." 
• Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner

Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner

Regular readers surely already know a lot of the story and backstory surrounding the controversial sentencing of Brock Turner and the controversial recall campaign against the judge who sentenced him.  That recall campaign culminates in a vote this coming Tuesday, and that has prompted another notable round of media coverage.  Here are some recent media pieces with varying degrees of depth:

From CNN here, "Will voters bench the judge who gave a 6-month sentence in the Stanford sexual assault case?"

From the Los Angeles Times here, "Vandalism, threats, broken friendships: The heated campaign to recall judge in Brock Turner case"

From Vox here, "Brock Turner was sentenced to 6 months in jail for sexual assault. Now voters may recall the judge."

From HuffPost here, "When the Punishment Feels Like A Crime: Brock Turner's twisted legacy — and a Stanford professor's relentless pursuit of justice."

I would especially encourage readers to find the time to read the lengthy HuffPost piece, which is particularly focused around Stanford Law Professor Michele Dauber's work on the recall campaign.  The reporting in the piece stuck me as particularly thoughtful and balanced, and I learned new things big and small about the campaign and her efforts and goals.

Despite all this new reporting, I must note my own sense that there are still lots of angles on this case that are still not getting fully explored.  In particular, these articles and others only give passing mention of the fact that Turner was sentenced to a lifetime on the sex offender registry.  I have long speculated that this reality — which I believe was mandatory for his convictions — not only may have largely accounted for Judge Persky's short jail sentence, but also may have been a main reason Turner was unwilling to plead guilty and accept responsibility in the way the victim wished.  Ever since BuzzFeed published the full courtroom statement of Turner's victim (available here and recommended reading), I have always been struck by this passage: "Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public."   This passage still has me wondering about what kind of plea had been offered to Turner and whether the prospect of a lifetime on the sex offender registry was central to his decision to go to trial.

The CNN article linked above does make one (possibly overstated) point about the sex offender registry part of his punishment: "That's a penalty so burdensome that if Turner were to have children someday, he wouldn't be able to get near their school."  Of course, being on the registry for life means a whole lot more, too.  I continue to wonder not only if that reality influenced Judge Persky, but if other judges in California or around the nation regularly adjust their prison terms knowing the severe impact of the collateral consequences of sex offender registration.  I hear stories all the time of prosecutors and defense attorneys looking to "charge or plea around" particular crimes that carry sex offender registration or other severe collateral consequences.  If these collateral sanctions influence attorneys, surely they influence sentencing judges in various settings in various ways.  I would love to see more reporting on this element of the Turner case and Judge Persky's decision-making (recalling that Persky himself has been a state sex crimes prosecuot).  But perhaps only a sentencing nerd like me really cares all that much about this part of the story. 

In any event, readers can gear up for the recall election also by reviewing a number of prior posts here about the Brock Turner case.  I think it is fair to say that in these posts I have expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Judge Persky.  Here is just a sampling of the prior posts this case has generated:

• Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
• Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
• NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
• "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
• Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
• Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
• California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
• "Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair" 
• "Put Away The Pitchforks Against Judge Persky" 
• Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner 
• "Brock Turner: Sorting Through the Noise" 
• "I was Raped. And I Believe The Brock Turner Sentence Is a Success Story." 

"Challenging the Punitiveness of 'New-Generation' SORN Laws"

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

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals.  To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause.  Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. 

This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws.  The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

Sad uncertain realities behind ugly headline about child rape sentencing

The headline of this story understandably caught my attention and had me wondering: "California man sentenced to 90 days of house arrest for rape of 5-year-old girl."  A bit of digging revealed, via press reports here and here, a bit more of the story behind the story that would seem to partially explain this outcome.  Excerpts below come from the two linked pieces, respectively:

A 79-year-old man who pleaded no contest to felony statutory rape of a child was sentenced this week to 90 days' detention and will not have to register as a sex offender. The sentence upset the parents after they gave emotional testimony at the hearing....

Despite the word "rape," the crime did not involve penetration, said Robert Himelblau, supervising deputy district attorney for San Joaquin County. Gregory Davenport, an attorney for Burgess, said the charge is based on a claim by the girl's mother that she saw Burgess stick his hand down her daughter's pants in 2016.

At the hearing, the judge reminded the parents that they thought the plea agreement was fair when it was reached.... Davenport told the Associated Press on Friday that Burgess accepted the plea deal despite being innocent because he is in frail health and wanted to move on with his life. Burgess denies ever touching the child inappropriately. "The whole case was based upon some minor touching that my client denied even occurred," Davenport said....

Lyle Burgess, 79, was sentenced by San Joaquin County Superior Court Judge Ron Northup to either 90 days in an alternative-work program or in-home detention plus five years of informal probation. He does not have to register as a sex offender.

Burgess, who founded Rare Parts Inc. in Stockton in 1981 — an automotive parts manufacturer and distributor — will in all likelihood opt for in-home detention due to his frail physical and mental health, according to defense attorney Gregory Davenport. “My client maintains his innocence,” Davenport said outside the courtroom.

During Wednesday’s sentencing hearing, both parents of the victim gave emotional testimony about what their daughter has been going through, the impact on their family and their dissatisfaction with Burgess’ conviction. The parents’ names are not being used to protect the identity of the minor victim. “Our daughter has been harmed by this man continuously,” the victim’s mother said through tears, describing two incidents she says she witnessed between Burgess and her daughter at Burgess’ cabin in Calaveras County in the fall of 2016.

“I’m incredibly disgusted by his behavior and continuously disgusted by his lies,” she said before describing his sentence as “getting off so easy” and not registering as a sex offender. “I want other kids to be protected by possible future abuse by this man,” she said.

The victim’s father, who has known Burgess for more than two decades, said: “I don’t have too many prized possessions in this world other than my family. (My daughter) will remember this the rest of her life. She sleeps on the floor outside our room.”

Northup told the parents their statements do have an impact but “courts are somewhat limited” in ruling on a negotiated plea and reminded them that at the time it was reached, they felt it was fair.

The parents and the victim recently filed a civil case against Burgess seeking unspecified damages for sexual abuse and intentional infliction of emotional distress.... Davenport, Burgess’s attorney, said: “I believe the allegations are motivated by greed. They are using this instance to try to gain financially.”

I do not know the ins-and-outs of California plea and sentencing procedure, but these articles suggest that the sentence here was largely determined by the terms of a plea deal (and one that the parents of the victim assented to).  This other local article, notably, provides this additional (confounding?) account of matters from the prosecutors:

According to the San Joaquin County District Attorney's Office, Burgess' sentence was initiated by the county court because of his age and health.  When Burgess was arrested in 2016, he was originally booked on four counts of lewd acts upon a child.  The charge was later changed to unlawful sexual intercourse with a minor, though the DA says there were no allegations the girl was "sexually penetrated." Prosecutors say the plea deal was agreed upon by both Burgess and the girl's family.

I do not know what it means for this sentence to have been "initiated by the county court because of his age and health," but I do know it now sounds as if the sentencing judge largely attributes the outcome to the plea deal and the prosecutions largely attribute the plea deal to the sentencing judge.   As I see it,  sadness persists from every perspective in this case.  And I surmise from my Twitter feed that the case is generating anger, too, and I wonder if recall or other campaigns targeting the judge or DAs might be in the offing.

"Sex offender registry: More harm than good?"

The title of this post is the headline of this lengthy report appearing in The Connecticut Mirror. The piece is focused mostly on the history of, and debate over, the sex offender registry in The Constitution State, but much of the discussion has a universal quality to it.  Here is how it gets started:

In the 1990s, in response to a number of horrific and highly publicized crimes against children, states and the federal government created stringent penalties for sex offenders, notably registries where offenders’ names and addresses are available to the public.  But now critics across the country are demanding review and revision of these policies, saying they are based on false assumptions, are a waste of money and do more harm than good.

The registries and related policies “are absolutely and fundamentally flawed. They do nothing to support prevention, are not a deterrent and do nothing for people who have survived sexual violence,” said Prof. Alissa Ackerman of California State University Fullerton, a criminologist and national expert on the treatment of sex offenders.

In 2015 the Connecticut Sentencing Commission, at the behest of the General Assembly, began a lengthy examination of Connecticut’s “system of assessment, management, treatment, and sentencing of sex offenders.”  After a two-year study, the commission recommended changing the state’s public registry from one based on the offense — commit most sex-related crimes and you go on the registry — to one based on the risk an offender poses to the community, as determined by a new, eight-member Sex Offender Registration Board.  Individuals found to be low-risk — and some adjudged moderate-risk — would be on a registry only available to law enforcement personnel.

The proposal was crystalized into a bill introduced during the immediate past session of the General Assembly, though it failed to make it out of the Judiciary Committee.

State Sen. Paul Doyle, co-chair of the committee, said the complexity and emotional nature of the issue made it more appropriate for the longer session next year. “We never got to the merits. Leadership was not prepared to deal with it in a short session.” He said he personally would have had to do more research before deciding how to vote.

In a related matter, the nonprofit Connecticut for One Standard of Justice, which advocates for the civil rights of sex offenders, filed a federal lawsuit on April 4 seeking to overturn a Windsor Locks ordinance which bars persons on the sex offender registry from most public places in town. The town’s “child safety zones” include a “park, school, library, playground, recreation center, bathing beach, swimming pool or wading pool, gymnasium, sports field, or sports facility” either owned or leased by the town. The suit claims banning a group of people from these facilities is unconstitutional....

The registry and laws such as child protection zones are based on a set of assumptions that research indicates are highly questionable or outright false. The Sentencing Commission’s 204-page report calls them “myths.”  They include:

• Nearly all sex offenders reoffend.
• Treatment does not work.
• The concept of “stranger danger” — that most sexual assaults are the work of people unknown to the victims.

“Research does not support these myths, but there is research to suggest that such policies may ultimately be counterproductive,” the commission’s report says.

Quirky Texas statute operates to make being married an aggravating factor in sexual assault cases in Texas

In this new post at The Volokh Conspiracy, Eugene Volokh flag a quirky Texas statute that elevates the severity of sexual assaults based simply on the marital status of the offender or the victim. Here is the start and a few other part of a great post:  

Texas law provides: "[Sexual assault, which includes forcible rape and statutory rape,] is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01 ["bigamy"]."

It seems broadly agreed that the purpose of the law was, "to provide higher penalties for polygamists 'who sexually assault their purported spouses.'" But read literally, the law enhances the punishment for sexual assault by any married person, regardless of the assaulter's relationship with the victim (except when the victim is the assaulter's spouse), simply because married people can't marry anyone else.

And indeed, in Estes v. State (decided yesterday by the Texas Court of Criminal Appeals), prosecutors, judges, and a jury applied the law precisely in this way: Estes' conviction for having sex with an under-16-year-old friend of his son's was upgraded to a first-degree felony just because he was married.  An appellate court concluded that there was no rational basis for punishing married abusers more than unmarried abusers, but the majority on the Court of Criminal Appeals — Texas's highest court for criminal cases — disagreed...

[This case is] a reminder that statutes are often interpreted as they are written, and not as the drafters may have intended. We should all keep that in mind when we're asked to accept a broadly written statute on the grounds that the objectors are being too literal and that "courts and prosecutors obviously won't read it that broadly.  Sometimes statutes are indeed read narrowly, in keeping with their well-known purpose; but sometimes they are not....

Finally, the statute as read by the court would also impose a lower penalty for a married person's raping the person's spouse (since that would still be a second-degree sexual assault) than for the married person's raping someone else (since that would be a first-degree sexual assault). I don't think this was the result of any deliberate judgment by legislators that spousal rape is a lesser crime (the statute expressly excludes consensual marital sex from the statutory rape provision, but that exclusion doesn't cover the forcible rape provision); I don't think any of this was the result of any deliberate judgment by legislators. But that appears to be the outcome.

Second-degree felonies, by the way, call for a minimum sentence of 2 years in prison and a maximum of 20; first-degree felonies, call for a minimum of 5 years and a maximum of 99.

Scrutinizing sex offender civil commitment schemes

Investigative reporter Barbara Koeppel has this extensive article in The Washington Spectator under the full headline "Sex Crimes and Criminal Justice: Formerly incarcerated sex offenders say civil commitment programs deny proper rehabilitation."  I recommend the piece in full, and here are excerpts from the start and end of the article:

Since the 1990s, 20 states and the District of Columbia have passed laws that direct the attorneys general in these jurisdictions to appoint professionals to evaluate whether sex offenders who have served their time have a mental abnormality or illness that would make them likely to re-offend.  If the decision is yes, the men are re-incarcerated—not for past crimes but for ones they might yet commit — in prisonlike facilities with barbed wire, cells, guards, and watch towers. While institutionalized, they receive therapy that, theoretically, will help them control their sexual impulses.

The practice is known as civil commitment.... Supporters of the process argue it protects the public.  Critics, however, such as Dr. Richard Wollert, a psychologist at Simon Fraser University in British Columbia, disagree. He says the facts simply don’t support it: “I’ve never seen data that show the 20 states with civil commitment laws have lower rates of sex offenses or re-offenses than the 30 states that don’t.”  Similarly, Dr. Fred Berlin, a psychologist who runs sex offender outpatient programs at Johns Hopkins Hospital, says, “They’re really a ruse to not put the men back in society.” The sex offenses range from obscene phone calls, lewd behavior in public, and sex with underage partners, all the way up to rape and murder.

Organizations and professionals familiar with the abuses of civil commitment are its harshest critics.  The American Psychiatric Association told its members to “vigorously oppose” it. Two judges, from Minnesota and Missouri, found the laws “punitive and unconstitutional.”  Tapatha Strickler, a clinical psychologist who worked at the civil commitment facility in Larned, Kansas, calls it “an abomination.”  But the practice persists at huge cost to individuals and taxpayers....

The men I interviewed frankly admitted to their offenses, but they asked to be treated as others who commit crimes and not be re-incarcerated after they serve their prison sentences.  Also, since most state and federal prisons run mental health therapy programs, the men said they’d already participated in them throughout their original sentences — which could be 20 or 25 years — yet were made to start from scratch in the civil commitment facilities.

Today, about 5,400 men are held in civil commitment. [Lawyer Donald] Anderson told me, “It’s hard to wrap my head around it.  I sympathize greatly with the men’s victims and their families because I have two daughters and I understand people’s fears.  But I’ve dealt with these guys for years and I’m very fond of some of them.  Their look of being utterly beaten, knowing they’ll be here until they die, is very sad.  The program is inhumane.”

New York Court of Appeals upholds most serious sex offender registration despite defendant's acquittal on most serious charges

Over at Reason, Jacob Sullum has this effective new review of a notable example of "acquitted conduct" being used to justify a severe collateral consequence.  The posting's full headline provides the basic story: "A Jury Rejected the Charges, but He Still Has to Register As a Sex Offender for Life: New York's highest court says accusations can be considered for registration purposes even when the defendant was acquitted." Here are some of the particulars:

Quinn Britton's 13-year-old niece, identified in court documents as A.B., accused him of raping her during a Thanksgiving Day visit to her grandmother's home in Brooklyn, where her uncle lived, when she was 11. Britton denied any inappropriate behavior, and his mother said A.B. had spent the whole evening watching TV in the living room with her.... The jurors struggled to make sense of these conflicting accounts.  Since there was no physical evidence, the case came down to a question of whether to believe A.B. or Britton. During three days of deliberations, the jurors sent the judge three notes indicating that they were deadlocked. Each time he told them to keep deliberating.

Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B.  They found Britton guilty of second-degree sexual abuse, a misdemeanor, based on the allegation that he kissed A.B.'s breasts, but not guilty of three felonies: first-degree rape, based on the allegation of penetrative sex, and two counts of a first-degree sexual act, based on allegations that he performed oral sex on the girl and forced her to perform oral sex on him.

During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York's Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 10 years.

In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton's classification, noting that it was supposed to be based on "clear and convincing evidence," a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction.  It is possible, in other words, for an alleged crime to figure in a defendant's risk level even when there is not enough evidence for a guilty verdict.

Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the "clear and convincing evidence" standard, which requires "a high degree of probability" that an allegation is true. A.B.'s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.

"Why Bill Cosby may not spend any time in prison"

The title of this post is the title of this lengthy new CNN article that provides a review of some of what we can now expect in the case of Pennsylvania v. William Henry Cosby, Jr. in the wake of his convictions this past week.  Here are excerpts:

Based on his conviction this week on three assault charges, comedian and TV star Bill Cosby could be sentenced to 30 years in prison.  But legal experts said the 80-year-old certainly will spend less time than that behind bars, and there's a very real possibility that he may not ever be incarcerated.

Why?  Well, it's mostly to do with his defense team's plan to appeal the guilty verdict -- likely on the grounds that the decision to allow five other accusers to testify in the trial unfairly prejudiced the jury.

Cosby's attorney, Tom Mesereau, will probably ask the court that his client be given home confinement during the appeal, which could take months or even years, CNN legal analyst Joey Jackson said.  "I think he'll ask the court and do whatever he needs to, to have his client remain out at liberty until these issues are decided, whether it was appropriate to allow all those accusers to testify, and how prejudicial and unfair would that be," Jackson said.

The decision on Cosby's bail is up to Montgomery County Judge Steven T. O'Neill, who oversaw the case.  His prior rulings suggest he may allow Cosby to remain on home confinement.  On Thursday, O'Neill dismissed the prosecution's plea to revoke Cosby's $1 million bail and remand him to jail. "I'm not simply going to lock him up right now," the judge said, citing his age and his track record of appearing at every hearing for two and a half years....

For now, Cosby is not permitted to leave his Pennsylvania home. If he does leave the state for another home, it would have to be arranged ahead of time and he would have to wear a GPS monitoring device, the judge ruled.  If O'Neill does allow Cosby to remain free during appeals, and the legal action lasts for years, then there's a question of whether the comedian's age and health will make that sentence moot....

Though Cosby faces a maximum of 30 years in prison, Montgomery County District Attorney Kevin Steele indicated he would not press for that sentence.  "He was convicted of three counts of (indecent assault), so technically that would be up to 30 years.  However, we have to look at a merger of those counts to determine what the final maximum will be," Steele said.

Legal analyst Areva Martin said the judge's rulings so far suggest he will give Cosby a much reduced sentence. "I think the fact that the judge yesterday allowed him to walk out of that courtroom, did not remand him immediately to jail, gives us a sense about what this judge is likely to do when he gets to the sentencing hearing," she said.

Judges can take any number of mitigating factors into consideration when issuing a sentence, she explained. "He will be able to take into consideration Cosby's age, the status of his health, the philanthropic work that he's done over the last several decades, the fact that this is his first criminal conviction -- all of those will be factors that the judge can take into consideration when sentencing him."

A sentencing hearing has not yet been scheduled.

Some women who say they were also assaulted by Cosby believe he should spend time in prison. "I believe that it's essential he spend time in jail and it wouldn't break my heart to see him spend the rest of his life in jail," Janice Baker-Kinney said Friday.

But ultimately, the length of his sentence would not change his guilty conviction. "Whether he ends up serving time in jail or if he dies during the appeals process, that doesn't remove the fact that he has been convicted," [Professor Michelle] Dempsey said. "That's definitely an important moment in history."

Prior related post:

• You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

India government moving forward with the death penalty for child rape

This new Bloomberg piece, headlined "India Approves Death Penalty for Child Rapists After Outcry," provides a useful reminder that the United States is not the only nation inclined to respond with punitive new laws in the wake of a high-profile horrible crime.  Here are the basics:

Prime Minister Narendra Modi’s cabinet cleared an ordinance that imposes the death penalty on convicted child rapists.

The amendment to the nation’s criminal law, which allows the death sentence in cases of rape of girls under age 12, was approved on Saturday, an official told reporters in New Delhi after the cabinet meeting. Once the president signs the ordinance, it will become a law.

The government acted after the recent failure of India’s ruling party to act on the growing outrage over two brutal rapes risked eroding Modi’s support ahead of state and national elections. United Nations Secretary General Antonio Guterres had urged authorities to act, according to the Times of India newspaper.

The cabinet also raised the minimum sentence in cases of rape of a woman to 10 years from the current seven, and in the rape of a girl under 16 years of age to 20 years from 10. In a crime that shocked India, an 8-year-old Muslim girl in Jammu and Kashmir was kidnapped in January, drugged, held for several days in Kathua, was raped multiple times then murdered, local police said. In Uttar Pradesh, a state lawmaker from Modi’s Bharatiya Janata Party is accused in a June 2017 rape case in Unnao.

Of course, this particular punitive reaction to an awful child rape is no longer possible in the US: the Supreme Court ruled a decade ago in Kennedy v. Louisiana that the use of the death penalty as punishment for child rape is unconstitutionally severe and thus barred by the Eighth Amendment.

Interestingly, just the other day I was doing a little research on the death penalty for non-capital crimes and I came across one especially notable reaction to the Kennedy ruling.  Here is the quote, and readers are welcome to guess who said it before clicking through to the link:

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," [this prominent federal politician] said at a news conference.  "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution." 

Supreme Court of Illinois rejects claim that state prohibition on sex offenders in parks is violative of substantive due process

The Supreme Court of Illinois today in Illinois v. Pepitone, 2018 IL 122034 (Ill. April 5, 2018) (available here), overturned a lower court ruling that found a sex offender restriction to violate substantive due process.  Here is how the opinion starts and concludes:

Section 11-9.4-1(b) of the Criminal Code of 2012 provides, “It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). The sole issue in this case is whether that statute is facially violative of substantive due process. The trial court rejected defendant Marc Pepitone’s due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant’s conviction and sentence....

We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.  Avila-Briones and Pollard correctly identified a constitutional nexus.  In Avila-Briones, 2015 IL App (1st) 132221, ¶ 84, the appellate court stated: “[B]y keeping sex offenders who have committed offenses against children away from areas where children are present ***, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend.”  The Avila-Briones court added that whether the statutory scheme covering sex offenders is “a finely tuned response to the threat of sex offender recidivism is not a question for rational-basis review; that is a question for the legislature.” Id.  And in Pollard, 2016 IL App (5th) 130514, ¶ 41, the appellate court concluded, “There is also a direct relationship between the *** presence restrictions of sex offenders and the protection of children.” See Standley v. Town of Woodfin, 661 S.E.2d 728, 731 (N.C. 2008) (upholding a municipal ordinance barring registered sex offenders from entering town parks and stating that the town “has a legitimate government interest in desiring to decrease and eliminate sexual crimes in its parks, and prohibiting those most likely to commit criminal sexual acts — persons previously convicted of such conduct — from entering the town’s parks is a rational method of furthering that goal”).  Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process. People v. Jackson, 2017 IL App (3d) 150154, which followed the appellate court’s decision in this case, is overruled to the extent that it also found section 11-9.4-1(b) unconstitutional.

"The Expansion of Child Pornography Law"

The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN.  Here is the abstract:

This symposium essay identifies two dramatic expansions of child pornography law: Prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.  These prosecutions have expanded the definition of the term child pornography well beyond its initial meaning.  What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children.  If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

Highlighting the Big Apple as a source for In Justice Today

My headline is a not-so-clever attempt to set up the fact that the latest two postings at the always great In Justice Today are focused on not-so-great criminal justice realities in New York.  Here are links to the two recent pieces with excerpts (and links from original): 

"NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids" by Guy Hamilton-Smith:

New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

"Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’" by Shaun King:

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

Making a fulsome case on the merits against sex offender registries

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress's delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline "The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal." Here are excerpts:

The Bureau of Justice Statistics reports that at least 95 percent of all state prisoners will be released from prison at some point. However, convicted sex-offenders almost exclusively face the vengeful, additional punishment of registration under the Sex Offender Registry and Notification Act (SORNA).

Generally, under SORNA, an individual who is required to register as a sex offender must register at least once a year; report any change of address within as little as three days; produce vehicle information, a recent photograph and a DNA sample; and abide by stringent residency restrictions, which can force individuals out of urban areas, away from family and into unemployment.

SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.....

The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.

Another element of due process known as “double jeopardy” appears in the Fifth Amendment and protects an individual from being prosecuted for the same offense twice. It also bars multiple punishments for the same crime. Individuals convicted of crimes who have faced incarceration and then must begin sex registry-reporting are certainly being punished repeatedly.

SORNA requirements punish ex-offenders by inflicting upon them tangible, secondary punishments, like the inability to qualify for housing and increased difficulties securing employment. These secondary punishments effectively banish ex-offenders to a modern leper colony by not only removing re-entry resources but also by affirmatively ostracizing those attempting to rebuild a life after incarceration.

In addition to violating double jeopardy, repeated punishments violate the Eighth Amendment by imposing cruel and unusual punishment. The government is prohibited from imposing a criminal sentence that is either vindictive or far too harsh for the crime committed. Incarceration is intended to be a punishment and a deterrence, so any subsequent punishment can only be vindictive. After incarceration, an ex-offender’s privacy is significantly diminished by the requirement to report one’s name, address, photo, employment status and provide a DNA sample.

Last fall, a federal judge found that the Colorado sex offender registry’s punitive impact outweighed any value it might have had in protecting the public and concluded that registration violates the prohibition against cruel and unusual punishment. As the judge specifically stated, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”

As Clarence Darrow famously said, “You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.” Protecting the constitutional rights of everyone, even those convicted of sex offenses, is of the upmost importance for protecting our freedom. Therefore, both legislators — by way of developing and amending laws — and judges — via hearing arguments and creating case law — must re-examine SORNA in order to preserve liberty and uphold the Constitution.

SCOTUS grants cert on structural SORNA issue and Justice Sotomayor dissents in capital case with IAC issues

The Supreme Court has been mulling over a number of cases that would, if cert were granted, be of great interest to sentencing fans. But the Justices, via today's new SCOTUS order list, did not grant (or deny) cert on any blockbusters. Here is the SCOTUSblog accounting of what sentencing fans did get today:

The second grant is Gundy v. US, but only limited to the fourth question presented by the petition: whether Congress's delegation of power to the attorney general to issue regulations interpreting the Sex Offender Notification and Registration Act violates the nondelegation doctrine....

The non-delegation challenge to SORNA is (1) more plausible than most non-delegation challenges because of the criminal context; but (2) would be the first non-delegation challenge that has prevailed at the Court in a very long time. And it would blast a giant hole in SORNA.

Justice Sotomayor dissented from the denial of review in Wessinger v. Vannoy, a capital case involving an attorney's duties to conduct a mitigation investigation when the court has denied funds for expert assistance.

Justice Sotomayor's solo dissent in Wessinger ends this way:

The Court’s denial of certiorari here belies the “bedrock principle in our justice system” that a defendant has a right to effective assistance of trial counsel, and undermines the protections this Court has recognized are necessary to protect that right. Martinez, 566 U.S., at 12. Indeed, the investigation of mitigation evidence and its presentation at sentencing are crucial to maintaining the integrity of capital proceedings.  The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this Court’s precedent.  Yet, Wessinger will remain on death row without a jury ever considering the significant mitigation evidence that is now apparent. Because that outcome is contrary to precedent and deeply unjust and unfair, I dissent from the denial of certiorari.

California judge rejects state efforts to limit reach of new parole eligibility rules approved by voters via Proposition 57

As reported in this AP piece, "California must consider earlier parole for potentially thousands of sex offenders, maybe even those convicted of pimping children, a state judge said Friday." Here is more about a notable ruling about a notable effort to limit the reach of a notable ballot initiative:

Sacramento County Superior Court Judge Allen Sumner preliminarily ordered prison officials to rewrite part of the regulations for Proposition 57.  The 2016 ballot measure allows consideration of earlier parole for most state prison inmates, but Gov. Jerry Brown promised voters all sex offenders would be excluded.

That goes too far, Sumner said in rejecting Deputy Attorney General Maria Chan's argument that the ballot measure gave state officials broad discretion to exclude any class of offenders whose release might harm public safety. "If the voters had intended to exclude all registered sex offenders from early parole consideration under Proposition 57, they presumably would have said so," Sumner said.

He said the scope of exclusions should be narrowed to only those now serving time for a violent sex offense. And he said the Corrections Department must better define what falls into that category. The judge said those who already served their time for a sex crime, even a violent one, and now are imprisoned for a different crime should be eligible for early release.

The language in Prop. 57 "left way too much wiggle room," opening the door to Sumner's ruling, said Mark Zahner, chief executive of the California District Attorneys Association that opposed the initiative. "There's a great danger of truly violent people being released early and people who commit, in this case, sex offenses that involve violence being released early."

The Governor's Office declined comment. Corrections officials did not respond to repeated requests for comment or say whether they plan to appeal. They also did not provide an estimate of how many offenders might be affected.

The ruling Friday could allow earlier parole for more than half of the 20,000 sex offenders now serving time, said Janice Bellucci, a Sacramento attorney and president of California Reform Sex Offender Laws. Her lawsuit on behalf of sex offenders argued that the rules conflict with the ballot measure's language and voters' intent in approving Proposition 57. Bellucci argued the measure requires earlier parole consideration for any sex crime not on the state's narrow list of 23 violent felonies, which includes murder, kidnapping and forcible rape.

That could allow earlier parole for those convicted of raping a drugged or unconscious victim, intimately touching someone unlawfully restrained, incest, pimping a minor, indecent exposure and possessing child pornography. The judge said corrections officials can make the case for excluding those offenders as they rewrite the regulations, but Bellucci said she will sue again if officials go too far.

The full 18-page ruling discussed here is available at this link.  Here is a key paragraph from the opinion's conclusion: 

Under Proposition 57, “Any person convicted of a nonviolent felony offense . . . shall be eligible for parole consideration after completing the full term for his or her primary offense.”  CDCR adopted regulations defining the term “nonviolent offender” to exclude anyone required to register under section 290, regardless of their current commitment offense.  CDCR’s overbroad definition must thus be set aside.

Mass molester Larry Nassar gets another 40 to 125 years in his third and final sentencing

Though civil suits resulting from former sports doctor Larry Nassar's many crimes seem likely to go on for a very long time, today I believe all of the criminal cases against the bad doctor concluded with a final state sentencing.  This local article, headlined "Nassar gets another 40-125 years," starts its account of this latest sentencing this way:

Former Michigan State University doctor Larry Nassar was sentenced to another 40-125 years in prison for sexually molesting hundreds of young girls. Eaton County Circuit Court Judge Janice Cunningham handed down the sentence Monday. "I am not convinced that you believe what you did was wrong," Cunningham said. "Clearly you are in denial ... I do not believe there is a likelihood that you can be reformed."

Before he was sentenced, the disgraced doctor said he was sorry for his crimes during his last sentencing hearing Monday. "It's impossible to convey the depth and breadth of how sorry I am to each and everyone involved," he said. "The visions of your testimony will forever be present in my thoughts."

Since last month, more than 200 women spoke over nine days in two county court rooms about the impact the sexual abuse inflicted by Nassar has had on their lives. "You are a doctor and you took an oath to do no harm, but you harmed more than 250 young women," Cunningham also said Monday. "You will spend the rest of your life in prison, left with the memories of destroying your family and so many others around you."

Larissa Boyce — the first to tell a Michigan State University official about Nassar 20 years ago but was not believed — said Friday in a public statement that this moment cannot be forgotten. “This is a life-changing time in our society, in our culture and in our world,” Boyce said.

Prior related posts:

• Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
• Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
• Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation
• Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar
• Still more notable commentary on judicial conduct in sentencing of mass molestor

Mass molester Larry Nassar in state court for his third and final sentencing

When a person has committed a whole lot of serious crimes, he may well face a whole lot of serious sentencings.  Former doctor Larry Nassar is the latest high-profile example of this reality, and this AP piece reports that he is today in Michigan state court for his third sentencing proceeding.  Here are detail about this final sentencing and some of the continuing buzz about his last state sentencing:

The final sentencing hearing began Wednesday for disgraced former sports doctor Larry Nassar, who will again be confronted by scores of victims as he faces another prison sentence for molesting gymnasts at an elite Michigan club run by an Olympic coach.

Judge Janice Cunningham has set aside several days for roughly 60 people who want to confront Nassar or have their statement read in court. The hearing could unfold much the same as a hearing last week in another county where a different judge allowed more than 150 women and girls to confront Nassar about his abuse. That hearing ended with Nassar getting sentenced to 40 to 175 years in prison, with the judge describing it as Nassar's "death warrant."

The practice of allowing accusers to speak even if they are not tied directly to a case has raised questions about fairness. But attorneys say the victim statements probably pose little risk on appeal, especially since Nassar pleaded guilty, agreed to allow the statements and is expected to get another long prison sentence as part of his deal with prosecutors. "If you get what you bargained for, then you really can't argue that you were prejudiced in any way," said Margaret Raben, former leader of a Michigan association of criminal defense attorneys.

It's not uncommon for prosecutors to introduce "aggravating" evidence at sentencing to support their request for a severe punishment. But the parade of victims offering emotional accounts of their abuse to the face of an abuser went well beyond the typical hearing. Raben said there was a "horrible dynamic" last week in Judge Rosemarie Aquilina's courtroom, even if the judge had the option to allow so many people to speak in a case that involved just seven victims.

"Her obvious delight was just off the wall," Raben said, referring to Aquilina's "death warrant" remark and others. "I am not defending Larry Nassar at all, but what I saw with her was a real abandonment of judicial demeanor. ... The process doesn't change because everybody hates the defendant. That is the absolute glory, or should be, of the American justice system."

A fellow Ingham County judge, William Collette, said Aquilina's handling of the hearing was "outrageous." Others, however, have praised her treatment of victims and their parents.

The case on Cunningham's docket Wednesday in Eaton County centers on Nassar's assaults at Twistars, a Lansing-area gymnastics club that was run by 2012 Olympic coach John Geddert. Nassar admits penetrating three girls with his hands when he was supposed to be treating them for injuries.

So far, 57 victims want to speak in court or submit statements. Attorney Mick Grewal said 11 of his clients have signed up, including some who were inspired by the 150-plus young women and girls who appeared in Aquilina's court. He called it a "cathartic experience." "Now they're at a point in their healing process where they want to confront Larry, and they want to show the world that they are survivors and they are strong and they are part of this movement," Grewal said. "It helps them through the healing process."

He said the Nassar cases are extraordinary in the number of victims who have come forward. "The only case that's out there that's even similar in stature is Penn State, and this is now six times as big as Penn State, maybe seven times," Grewal said, referring to boys who said they were sexually abused by assistant football coach Jerry Sandusky.

Prior related posts:

• Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
• Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
• Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation
• Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar
• Still more notable commentary on judicial conduct in sentencing of mass molestor

Still more notable commentary on judicial conduct in sentencing of mass molestor

Perhaps unsurprisingly, lots of folks are still discussing Larry Nassar's state sentencing (basics here), with a number of commentators taking issues with the judge's comments while imposing his sentence and others praising how the entire sentencing was handled.  Here is just a sampling of some of what has caught my eye on this front:

• By Judge Steve Leben, "Michigan judge provides clinic on showing compassion to crime victims at sentencing"

• By Sophie Gilbert, "The Transformative Justice of Judge Aquilina"

• By Kevin Daley, "Judge Aquilina’s Conduct At Nassar’s Sentencing Was Disgraceful"

• By Carissa Hessick, "Judicial Impartiality at Sentencing"

• By Rachel Marshall, "The moment the judge in the Larry Nassar case crossed a line"

My own thoughts on this matter keep returning to the essential fact that Nassar's state sentencing was much more symbolism than substance from the very start given that he had already received a functional LWOP sentence in federal court AND the fundamentals of his state sentence were largely established by his plea bargain. In this context, I suppose it is not too surprising that so many folks are so caught up in the particulars of the symbolism of how the judge conducted this unique sentencing hearing and spoke sharply to the defendant. But I still find myself ultimately much more interested by and concerned about the work of sentencing judges when it really makes a substantive difference.

Prior related posts:

• Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
• Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
• Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation
• Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar

Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar

The nature of Larry Nassar's crimes and of his victims contributed to his state sentencing earlier today (basics here) garnering lots and lots of attention.  I suspect in days to come we may see continuing commentary about Nassar's crimes and their enduring consequences, and tonight I thought to highlight a few particulars already garnering attention.

First, certain comments made by the state judge at sentencing have prompted an array of reactions, and so I thought it useful to link here to a full transcript of the judge's full comments at sentencing.  I think it is fair to call everything about the Nassar case remarkable, and the judge's sentencing statement also merits that adjective.

Second, and speaking of the judge and her sentencing comments, over at Slate Mark Joseph Stern already has this notable commentary headlined "Larry Nassar’s Victims Deserved a Judge Like Rosemarie Aquilina."  The piece closes with these lines: "The result was impassioned and imperfect.  It was also what Larry Nassar deserved."

And third, this local article reports on a noteworthy consequence of Nassar's crimes: "Michigan State President Lou Anna Simon resigns hours after Nassar sentencing."  I hesitate calling the MSU Prez another victim of Nassar, but I do not hesitate predicting that Nassar's crimes will reverberate in many ways and in many areas for quite some time to come.

Prior related posts:

• Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
• Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
• Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

As reported here by the AP, Larry Nassar after a lengthy state sentencing hearing "was sentenced Wednesday to 40 to 175 years in prison as the judge declared: 'I just signed your death warrant'."  Here is more from the AP:

The sentence capped a remarkable seven-day hearing in which scores of Larry Nassar's victims were able to confront him face to face in a Michigan courtroom. Judge Rosemarie Aquilina said Nassar's "decision to assault was precise, calculated, manipulative, devious, despicable."

"It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again. You have done nothing to control those urges and anywhere you walk, destruction will occur to those most vulnerable."

Nassar found competitive gymnastics to be a "perfect place" for his crimes because victims saw him as a "god" in the sport, a prosecutor said Wednesday, shortly before the former doctor was to be sentenced for years of molesting Olympic gymnasts and other young women. "It takes some kind of sick perversion to not only assault a child but to do so with her parent in the room," prosecutor Angela Povilaitis said. "To do so while a lineup of eager young gymnasts waited."

She described the "breadth and ripple" of Nassar's sexual abuse as "nearly infinite." "What does it say about our society that victims of sexual abuse have to hide their pain for years when they did nothing wrong? What does it say about our society when victims do come forward ... and are treated as liars until proven true?" Povilaitis said.

Nassar turned to the courtroom gallery to make a brief statement, saying that the accounts of more than 150 victims had "shaken me to my core." He said "no words" can describe how sorry he is for his crimes. "I will carry your words with me for the rest of my days" he said as many of his accusers wept....

Nassar, 54, pleaded guilty to assaulting seven people in the Lansing area, but the sentencing hearing has been open to anyone who said they were a victim. His accusers said he would use his ungloved hands to penetrate them, often without explanation, while they were on a table seeking help for various injuries.

The accusers, many of whom were children, said they trusted Nassar to care for them properly, were in denial about what was happening or were afraid to speak up. He sometimes used a sheet or his body to block the view of any parent in the room. "I'd been told during my entire gymnastics career to not question authority," a former elite gymnast, Isabell Hutchins, said Tuesday....

Nassar has already been sentenced to 60 years in federal prison for child pornography crimes. He is scheduled to be sentenced next week on more assault convictions in Eaton County, Michigan.

Though not made clear in this AP piece, I am inclined to presume this 40 to 175 year sentence is the maximum permitted under state law. I would be grateful to hear from any Michigan state sentencing experts as to whether this was a max sentence and also why a mass molestation such as this one produces a state sentence with a lower range that is shorter than the federal prison sentence Nassar already received for child porn offenses.

Prior related posts:

• Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
• Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses

UPDATE:  A helpful commentor noted below that the 40-year minimum sentence imposed here was the maximum bottom-range term provided for in Nassar's state plea agreement.  And, of course, because Nassar would have to live well past 100 to even have a chance of completing the current federal sentence he is serving, the particulars of his state sentence are not really of any significant practical consequence.

Taking a critical look at recent report on "Federal Prosecution of Commercial Sexual Exploitation of Children Cases"

Guy Hamilton-Smith has this notable new piece at In Justice Today discussing a new Bureau of Justice Statistics report. The BJS report, available here, is titled "Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013." Guy Hamilton-Smith's critical assessment, available here, is titled "New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children." Here is how the commentary starts and additional excerpts with a sentencing bite:

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses  —  such as sex trafficking  —  and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity....

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending.  Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst.  While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that "Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months."

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement.  More than ten images?  Enhancement.  Distribution, even unintentional distribution, as discussed above?  Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement.  Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutory maximum sentences.

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences.  As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory  —  that even possession of such images drives a market for child pornography.  The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course.  Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

Campaign to recall Brock Turner's sentencing judge turns in many signatures

As reported in this local article, headlined "Effort to recall Stanford rape case judge submits almost 100,000 signatures," a high-profile lenient sentence may soon be putting a California judge's job in jeopardy. Here are the details:

The campaign to recall a judge who issued what many considered a light sentence to a former Stanford swimmer convicted of sexual assault cleared its first hurdle Thursday.

Recall organizers, led by Stanford law Professor Michele Dauber, filed a petition and nearly 100,000 signatures with the Santa Clara County Registrar of Voters in San Jose to place a measure on the June ballot to recall Superior Court Judge Aaron Persky.

If successful, it would be the first recall of a California judge in 87 years.

In June 2016, Persky sentenced former Stanford swimmer Brock Turner to six months in jail after he was found guilty of sexually assaulting an unconscious woman by a dumpster outside of a fraternity party on the college campus, resulting in a national outcry that Turner received special treatment. Prosecutors had argued that Turner should spend six years in state prison, but Persky gave him six months in county jail. He ended up being released in three.

While Persky became a prominent public figure after the Turner decision, the recall campaign has attempted to demonstrate a pattern of judicial bias that extends beyond Turner’s case.... At a news conference Thursday morning, Dauber listed a series of cases in which she believed Persky’s handling of sexual assault cases had been too lenient, including a 2011 civil trial on the alleged gang rape of a 17-year-old high school girl by members of the De Anza Community College baseball team. Persky allowed defendants to show photos of the victim wearing a revealing outfit to the jury....

After serving half of his sentence, Turner was required to register as a sex offender after moving back home with his family in Ohio. He recently appealed his conviction, arguing that he didn’t receive a fair trial.

To qualify for June’s election, the Persky recall campaign was required to turn in 58,634 valid signatures by Feb. 2. Organizers submitted a petition with 94,518 signatures that filled 11 boxes outside of the Registrar of Voters office, which now has 30 days to verify them. “We are very confident that we are going to have thousands more than we need to qualify,” Dauber said.

Persky has tried several times to block the recall effort....

Persky based Turner’s jail sentence on a recommendation from the county probation department. The judge noted that prison would have “a severe impact” on the former Stanford swimmer. The petition to place the recall on the ballot is only the first step in the campaign to push out Persky, Dauber said. If the recall is placed on the ballot, voters also will be asked to select a candidate to fill Persky’s seat on the bench. Cindy Hendrickson, an assistant district attorney for Santa Clara County, is the only candidate to date who has filed papers.

On Thursday, Dauber framed the recall effort in historical context by describing the first successful recall effort in California history. “In 1913, the women’s clubs of San Francisco, much like we have done here, banded together to recall a judge named Charles Weller for lenient decisions on sexual assault,” she said.

Dauber also noted the national momentum of the current #MeToo movement. “Women are standing up and refusing to accept the normalization of harassment and abuse by privileged men, and the movement runs all the way from Hollywood to Silicon Valley to media to politics to the legal profession,” Dauber said, expressing support for Hendrickson.

Persky’s ruling — along with the publication of a gut-wrenching letter the victim read in court during Turner’s sentencing hearing — prompted former Vice President Joe Biden to write an open letter to the victim noting that she is a “warrior” who has been failed by many people and institutions.

In a number of prior posts about the Brock Turner case, I have noted concerns both about the lenient sentence he received and about the campaign to recall his judge. Here is just a sampling of the prior posts this case has generated:

• Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
• Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
• NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
• "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
• Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
• Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
• California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
• "Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair" 
• "Put Away The Pitchforks Against Judge Persky" 
• Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner 
• "Brock Turner: Sorting Through the Noise" 
• "I was Raped. And I Believe The Brock Turner Sentence Is a Success Story." 

Making the case against juvenile sex offender registration requirements

Rebecca Fix has this new commentary that caught my eye under the headlined "Young Sex Offenders Shouldn’t Have to Register; It’s Ineffective and Hurts Everyone Around Them." The whole piece (and its many links) are worth checking out, and here is how it gets started:

Sex offender registration policies were initially developed for adults with sexual offenses, but have recently been extended to include youth with sexual offenses as well.  At first glance, sex offender registration and notification (hereafter referred to as SORN) may make us feel safer, produce relief knowing that these individuals are being punished.

However, many of us don’t realize that these practices don’t protect our children.  Required registration of and notification about youth with illegal sexual behavior, in particular, has resulted in serious economic and psychological burdens at multiple levels, affecting not only the youth who have to register (e.g., increase in suicidal ideation), but also their families (e.g., judgment from others, loss of job), neighbors (e.g., devaluation of home value) and communities (e.g., stress levels, potential changes in reputation).

Mental health providers and child advocates like myself and colleagues at the Moore Center for the Prevention of Child Sexual Abuse who have examined policies concerning sexual offending among youth know that SORN requirements stem from an ill-fitting classification system that has deleterious consequences.

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

Garden State perspective on sex offender castration ... for no obvious reason

This lengthy new local article from New Jersey, headlined "New Jersey child molesters won’t face castration threat any time soon," provides an example of how castration of sex offenders interests reporters even absent having an obvious reason to focus on the issue.  Here is how the article starts and some additional excerpts:

In a year filled with arrests for sexual crimes against child victims, there is a familiar refrain heard each time one of these arrests is announced.  “Castrate him,” is shouted from all corners of society and social media.

Almost 80 alleged child molesters or kiddie porn collectors were arrested this year by a regional task force.  None of those offenders, however, will ever have to face castration-style penalties if convicted in New Jersey Superior Court.  That’s because New Jersey, unlike a handful of states across America, lacks a law that would require certain sex offenders to be neutered or semi-neutered.

Removing a sex offender’s testicles or doping him up on testosterone-reducing drugs may sound harsh, but that is the law of the land in certain jurisdictions outside the Garden State. Several states across America have laws requiring certain child molesters to take so-called “chemical castration” hormonal drugs that curtail sexual desire by sharply reducing testosterone levels, but New Jersey state lawmakers have not seriously considered that idea since the turn of the century. Surgical castration — a medical procedure that physically removes a male’s testicles — is an option for certain Megan’s Law offenders in California who prefer to voluntarily undergo a permanent, surgical alternative to hormonal chemical treatment....

New Jersey politicians have concerns about the sexual exploitation of children — Republican Gov. Chris Christie on July 21 signed a bill sponsored by Sen. Linda Greenstein (D-Mercer/Middlesex) to strengthen New Jersey’s child pornography laws and establish additional penalties against leaders of child porn networks — but a politician has not introduced a castration bill in the state Legislature in over 20 years.

A state senator in 1996 wanted New Jersey to force male defendants convicted twice of aggravated sexual assault on a young child to receive chemical castration as punishment. Inspired by California’s example, former State Sen. Joseph L. Bubba (R-Passaic) introduced Senate Bill No. 1568 in the chamber on Oct. 3, 1996. He signed on as the primary sponsor of the bill that, if enacted, would have required chemical castration of certain sex offenders.  The bill was introduced in the New Jersey Senate and referred to the Senate Judiciary Committee, where it died without being acted upon. 

Bubba’s political career then quickly unraveled when he lost a GOP primary in June 1997.  No other politician since Bubba has introduced a chemical castration bill in the New Jersey Legislature.

Notably lenient Nebraska sex offense sentence reversed based on notably questionable judicial comments

This local press report, headlined "Sentence of probation in Nebraska sexual assault case overturned; judge called 12-year-old girl the 'aggressor'," reports on an interesting state appellate court sentencing reversal.  Here are the basic details:

The Nebraska Court of Appeals has overturned a Kearney judge’s decision to put a man on probation for a felony sexual assault conviction.  In its ruling issued Tuesday morning, the Court of Appeals said Buffalo County District Judge Bill Wright considered forbidden and irrelevant factors when he decided to place Taylor Welty-Hackett on probation.

In February, Wright placed Welty-Hackett on four years of intensive supervised probation for attempted felony first-degree sexual assault of a 12-year-old girl on Aug. 1, 2015, in Kearney.  The charge was punishable by up to 20 years in prison.

The Court of Appeals ordered Welty-Hackett’s case be sent back to Buffalo County, where he will be resentenced by a different judge.  A hearing date hasn’t been set.  Buffalo County Attorney Shawn Eatherton had argued that Welty-Hackett’s sentence was too lenient.  During the Feb. 23 sentencing hearing, Wright called Welty-Hackett’s victim the "aggressor" in the case saying, “She made the advances.”

Wright also went on to tell Welty-Hackett that he “screwed up big time, but I’ve got to find some way of bringing balance back into the system, given the nature of what’s been occurring in this community.”

The Court of Appeals said Wright’s statement about the promiscuity of teenage girls and the need to bring “balance” into sentencing sexual offenders went beyond consideration of the facts in the case.  “If the sentencing judge (Wright) went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI (pre-sentence investigation report) which clearly justified the probationary sentences. ... Such failure caused the trial judge’s brief mention of the defendant’s small stature to become the focus of attention, when in reality it was but a minor point,” the Court of Appeals ruled.

The full opinion in Nebraska v. Welty-Hackett, No. A-17-239 (Neb. Ct. App. Dec. 19, 2017) (available here), makes for an interesting read.  Here are some of its concluding paragraphs:

Unlike in State v. Thompson, the sentencing judge’s comments in this case were more than just a “brief mention” of factors not relevant to imposing sentence.  The court’s discussion of the general promiscuity of teenage girls and the need to bring balance into the system was fairly substantial.  Further, the comments had nothing to do with this particular defendant, in contrast to State v. Thompson.  We recognize that the trial judge in this case indicated he had reviewed the PSR before the sentencing hearing.  While the information contained in the PSR may well have supported the probationary sentence imposed, we cannot determine from the judge’s comments at sentencing how much weight was given to the permissible and relevant sentencing factors compared to the impermissible and irrelevant factors.  We note, however, the court’s final comments before imposing sentence that Welty was getting the benefit of the court’s desire to “find some way of bringing some balance back into the system, given the nature of what’s been occurring in this community.”

Because it appears that the trial court’s reliance upon the impermissible and irrelevant sentence factors largely influenced his decision to impose probation, we find it necessary to vacate the sentence imposed and remand for resentencing before a different judge.