Post Sentencing

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Disparity is only part of the sentencing snafu.

Sunday, February 12, 2012

Timely discussion of federal judicial concerns with guideline sentences

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

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

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

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

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

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

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

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

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

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

Read the rest here….

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ACLU fighting town sex offender law

Written by David Still II

September 18, 2009
Lawsuit says exclusion zones unconstitutional


A Barnstable ordinance restricting where registered sex offenders can live is being challenged in Barnstable Superior Court as being in violation of both the U.S. Constitution and the Massachusetts Declaration of Rights.

The ordinance in question is the Barnstable Active Safety Information for Child Awareness, known as BASIC. Among its provisions is a 2,000-foot exclusion zone from places where services to children are provided for sex offenders registered categorized by the state at levels 2 or 3 “by reason of a sexual offense against a child.”

The American Civil Liberties Union of Massachusetts (ACLU) is representing the plaintiff, and filed the 39-page complaint in Barnstable Superior Court in late August. It is the first challenge of residential restriction ordinances in Massachusetts.

The plaintiff, allowed by the court to proceed under the pseudonym “Mark Moe,” is described as 34 years old and living with a family member in Barnstable. His classification as a level 2 sex offender stems from a juvenile California case when he was 16. According to the complaint, Moe was found delinquent for engaging in sexual acts with his 13-year-old girlfriend. According to the complaint, this is his only offense.

“Because the ordinance effectively forecloses all of the housing options in town, the plaintiff will be forced to leave Barnstable and, because he is indigent, will become homeless,” the introduction to the complaint reads.

The town has agreed to suspend enforcement of the ordinance on the plaintiff while the case is pending.

Barnstable Assistant Town Attorney David Houghton said the town served a motion to dismiss this week, which has been received by the plaintiff’s attorney.

ACLU’s John Reinstein, lead attorney in the case said that in general, the issue of residential restrictions on sex offenders “one that we’ve been concerned with.”

In addition to seeking a permanent injunction against the enforcement of the BASIC ordinance against the plaintiff, the complaint asks the court to enter a declaratory judgment that BASIC ordinance violates the Home Rule Amendment and violates the Fifth and Fourteenth Amendments to the U.S. Constitution and articles 1,10, 12 and 24 of the Massachusetts Declaration of Rights.

The plaintiff also seeks court costs and “further relief as this Court deems appropriate.”

A statement on the ACLU of Massachusetts Web site ( explains the organization’s opposition to such restrictions: The empirical data suggest, however, that these measures are not only ineffective, but may actually increase the likelihood of sex offenses. In addition, they raise serious constitutional questions by infringing upon well established civil rights.”

Since going into effect in February 2007, the Barnstable Police Department has issued 20 citations under BASIC all to separate individuals.

The Plaintiff

Moe moved to Massachusetts in 2000 to be near family and registered as a sex offender in 2007, although “he contests his obligation to register in Massachusetts.” Moe also says that he was not informed of his right to a hearing by the Sex Offender Registry Board, which classifies offenders a at one of three levels, low, moderate and high for risks of re-offense.

Moe is classified as a level 2 offender based on the California case.

The plaintiff has had difficulty finding and holding a job, due in part, according to the complaint, to his status as a registered sex offender. He moved to Barnstable in January, accepting the offer of a cousin. That residence is described in the complaint as being on Pitcher’s Way in Hyannis. His mother lives a short distance away, according to the complaint.

On Feb. 17, 2009, Barnstable Police served Moe with a citation for a single violation of the BASIC ordinance, which carried a $300 fine. Failure to pay the fine or request a hearing within 21 days could result in a criminal complaint being issued.

According to the court filing, Moe did request a hearing, but the town applied for a criminal complaint on Feb. 27. That resulted in a court magistrate issuing a criminal complaint, which is pending in Barnstable First District Court.

The Town of Barnstable has relied upon the Massachusetts Home Rule Amendment as the basis for some of its more progressive legislation and legal positions. Among the arguments put forth in the complaint is that the town’s BASIC ordinance exceeds its permissible scope under Home Rule.

The stated purpose of the BASIC ordinance is “to advance the public safety and welfare of the residents of the Town of Barnstable by making certain environmental information and controls available for the benefit of children and those who care for children.”

It was approved by the town council in late 2006 and went into effect in February 2007.

“The Barnstable residency restriction at issue here violates the Home Rule Amendment and Act because it is inconsistent with a number of different statutes formulated to monitor the whereabouts of sex offenders,” the complaint reads.

Moe argues that the state’s statutory scheme for regulation of sex offenders preempts local legislation.

“Local residence restrictions for sex offenders such as the BASIC ordinance significantly interfere with the implementation of state law and policy,” the complaint reads.

“The ordinance is not rationally related to any legitimate governmental objective and subjects the plaintiff Moe to arbitrary, capricious and unreasonable restrictions on his freedom of movement, association and residence,” the complaint reads.

The ACLU is expected to file an opposition to the motion to dismiss, after which a hearing before the court will be filed.


America’s Flawed Sex Offender Laws
The Jaycee Dugard case illustrates how America’s sex offender registries hurt efforts to stop repeat sex crimes


Sarah Tofte, researcher for the US program


September 5, 2009

Related Materials:

No Easy Answers

Other Material:

Published in the Guardian

Americans have been doing some soul-searching about our approach to monitoring convicted sex offenders since the recent discovery of Jaycee Lee Dugard. Dugard was kidnapped in California at age 11 and held captive for 18 years in Phillip Garrido’s garden. He managed to hide his secret prisoner from the police even though he was a convicted rapist and his name appeared on the public sex offender registry.

In the past, news of a horrific crime committed by a convicted sex offender inevitably led to widespread calls for increasing the scope of sex offender registration and community notification laws. Over the past 15 years, the US has expanded its registration and notification schemes to include an estimated 674,000 convicted sex offenders. Some remain on the public list for the rest of their lives, regardless of the seriousness of their offence, the current threat they might pose or their progress toward rehabilitation. The effectiveness of such laws has rarely been questioned, and they enjoy widespread public support.

But this time around, there has been a different type of discussion. Rather than just calling for tougher sex offender monitoring laws, Americans are openly wondering if a new approach is needed to deal with convicted sex offenders who have re-entered the community.

Although Garrido’s case is extraordinary, it illustrates the flaws in America’s sex offender registration and community notification schemes. Experts in sexual violence say that placing all convicted sex offenders on a registry for life may do more harm than good. The public nature of the registry makes it nearly impossible for convicted sex offenders to re-enter the community with the kind of support system they need to reduce their likelihood of committing another offence. Low-level offenders who pose little risk to the community are monitored in the same way as high-risk offenders, diluting police resources to concentrate on those, such as Garrido, who pose a high risk of committing another offence.

Furthermore, focusing so much public attention and resources on convicted sex offenders ignores the reality of sexual violence in the United States. It is estimated that 87% of new sex crimes every year are committed by individuals without a prior sex crime conviction. And very few sex crimes move through the system – less than one-third of all reported rapes result in an arrest.

So pouring scarce resources into monitoring all convicted offenders means there is less money for programmes to prevent sexual violence and counsel victims and for the rape investigation units, rape evidence testing and other tools that could bring justice in these cases.

Because of such concerns, Human Rights Watch called in a 2007 report for a major revamping of America’s sex offender laws. Registration should be limited to former offenders who have been individually assessed as dangerous, and only for as long as they pose a significant risk. Community notification should be restricted to those who genuinely can benefit from knowledge about dangerous former offenders in their midst.

Sex offender registration and community notification laws didn’t cause Garrido’s crimes, but they didn’t help the police stop them, either. While Americans are starting to question the value of our extensive sex offender monitoring system, it remains to be seen whether these doubts will lead to real reform.

Once sex offender laws are in place, it is hard for politicians to repeal them, because they don’t want to appear weak on the issue of sex offenders. If Britain wants to do more to prevent sexual violence, it should keep its sex offender registry narrowly focused, and use the savings in time, energy and resources to implement sexual violence prevention policies that will actually keep the public safe.Plymouth – A proposal to restrict where Level 3 sex offenders can live in Plymouth and where sex offenders whose crime involved a child can loiter gained little traction Monday night as representatives argued the pros and cons of the plan. In the end, Town Meeting struck down the proposal, which would have prevented Level 3 sex offenders from living within 2,500 feet, or half a mile, of any school, daycare center, elderly housing complex, park or recreation facility.

If passed, the proposal would also have restricted sex offenders whose offense involved a child from being in a town or state park.

But Precinct 12 Rep. Bill Abbott, an attorney, said the bylaw, if adopted, would leave Plymouth vulnerable to a myriad of lawsuits.

“This bylaw is going to be a lawyer’s delight,” he added, noting that Dover, N.H., passed a similar restriction that was promptly appealed and overturned by the courts. In this case, the court ruled that the state failed to prove a connection between the restriction and safer children. In addition, the court ruled the measure violated these felons’ civil rights.

The bylaw, as written, is far too broad, Precinct 8 Rep. Theodore Bosen said. Many teens who are considered children under the law can be convicted of a sex crime for showing their friends a pornographic magazine, or for French kissing a girlfriend who is the not the legal age of consent. These relatively minor infractions can brand these children as sex offenders whose offense involved children. Restricting these minors from being in a state or town park means they won’t be able to participate in sports, attend events or even participate in recess, Bosen said. “This loitering statute is overly broad,” he added.

“It’s a flawed bylaw,” Precinct 8 Rep. Paul Luszcz said, adding that the measure needs more careful study and consideration before it’s ready for serious consideration by the local legislature.

A motion to eliminate the residency provision of the bylaw was defeated with a vote of 78 to 32. The sex offender article as a whole was struck down by a vote of 80 to 22.


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