Moving To A New Site

Rumors of my death, as Mark Twain once said, are greatly exaggerated.

I've not published much on sex crimes in the past couple of months. After a long summer vacation, I returned to the practice of law and trials in non-sex cases.

I've also decided to move to a new web host. You can find me at: http://www.pattisblog.com/. I will no longer have a separate page for Defending Sex Crimes, but have moved all of this content to that page. It is listed under the topic labelled "Defending Sex Crimes."

I hope to see you on the new page.

Check Out "Once Fallen"

Here's a web site that was just brought to my attention about the reform of sex offender laws. It is a great read. I recommend that you add it to your list of must reads. Once Fallen

Hat Tip: Renate

Jessica Lunsford and Hypocrisy

The rape and murder of nine-year-old Jessisa Lunsford in 2005 was a terrible thing. The fact that her attacker was a violent sexual predator with a past reinforces our fear that the world is filled with dangerous sexual predators. But the fact remains that most people accused of sex offenses are harmless, and do not deserve to be treated like quarantined beasts. Jessica Lunsford's father knows this. He knows it because he might just be a sex offender himself; his son certainly is, at least by standards of current law.

Question? Why were lawmakers so quick to pass Jessica's law, demonizing people without distinction on the urging of a man who had deleted images of child pornography in his own computer the day his daughter went missing in Homasse, Florida in 2005? Why wasn't John Lunsford charged? Why wasn't his 18-year-old son required to register as a sex offender several years later when he pleaded guilty to sexual contact with a minor? Why, finally, the double standards?

Don't get me wrong: I don't think that possession of pornographic images on a computer makes a person a sex offender or a danger to society. If Mark Lunsford had such images in his possession the day his daughter was kidnapped, raped and murdered that should not make Lunsford a criminal.

But the prisons are filled with men who did no more than Jessica's father did. Why are those men in prison? Why are they required to register as sex offenders on release and to be forced into substandard housing, labelled a public health menace and then prosecuted for technical violations of the law?

One reason that sex offender laws have become undiscriminating and driven by hysteria is our tendency to make rock stars of rage out of the surviving members of the family of a violent crime. When Jessica became one of those rare children who are abducted by a stranger, all of our hearts went out to the family. But rather than sequester Mr. Lunsford away and offer him the counseling he needed to cope with shattering grief, we opened the airwaves and legislative chambers to him. We permitted him to make a poster child of Jessica, and politicians piled on to ramp up laws that are already far too draconian.

Why aren't lawmakers extending similar attention to other men who had child pornography in their computers? They are victimized too?

 I blame Oprah, frankly. Panic and sympathy sell. We gave Mr. Lunsford a pass because of what he has lost. It is no wonder that victims of the current sex offender hysteria are outraged at the hypocrisy. Mark Lunsford is permitted to stir the demons lurking in other people's homes without being held accountable for the demons in his own computer. See: child porn on the computer the day she went missing?

It gets worse, of course. Joshua Lunsford, Mark's son and Jessica's brother, was eighteen when he was charged with felony sex assault of a minor. He was permitted to plea to a misdemeanor. He spent 10 days in jail and was not required to register as a sex offender. Our prisons are filled with men serving prison sentences measured in far longer terms for the same offense. Why did Joshua catch a pass?

Once again, don't mistake me. I don't think Joshua should have gone to jail at all or been required to register as a sex offender. My understanding his contact with a 14 year old was consensual. For many years in the United States the ages of consent for sexual contact was far lower than fourteen. Romeo wasn't a felon when he wooed Juliet.

But the Lunsford's ought not to be given a libidinal past because of Jessica's murder. When Joshua turned up at his own sentencing wearing a T-shirt with Jessica's picture on it, where was his father to insist that son not engage in such tasteless theatrics? And why did Clark County Ohio Judge Tomas Trempe give this boy a slap on the wrist while presumably hammering others?

Jessica Lunsford has been used by politicians pandering to frightened voters to increase monitoring of those on sex offender lists and to increase mandatory minimum sentences. But it turns out that Jessica's family knows more truths than one. Losing a child to a stranger is horrible, but not every person possessing child pornography, and not every Romeo in pursuit of a Juliet, are sex offenders. If the Lunsford's believed that, father and son would be registered now, and their neighbors warned that predators are in their midst.

Why Fox News called upon Mr. Lunsford to serve as a spokesman for ramped up sex offender news suggests that the network is using Jessica too. To what end?, I ask. Perhaps it's high time to stop sanctifying the rage of crime victims. We say that no one can be a judge in their own case. But let a child get murdered, and grieved parents get a free pass: they get to sublimate their rage into national fame. Just ask John Walsh, who, decades after his son went missing, still hosts a national television show.

There is something sick about a society that tolerates such rank hypocrisy and hysteria. The illness isn't caused by so-called sex offenders.

Kelly Pierce Didn't Kill Jessica Lunsford

I ought to be grateful that Fox News even hosted a debate. Normally, the mere mention of the topic has folks running for the doors. Acknowledging that the issues are complex is progress. When it comes to reform of sex offender legislation, there is too often too little time given to debate. So thank you to Fox News for the four minutes devoted to the topic on Monday's "Fox and Friends." It was a good first step.

The discussion pitted the father of a child abducted and killed by a sex offender against a man convicted of the possession of child pornography. On the one side, the inconsolable rage of a victim's family; on the other, a demon man who had never hurt anyone so much as himself. It was a debate pitting two forms of pain against one another. But tell me, Fox? Did you really expect meaningful public policy debate by offering a seat on the forum to a man undone by his tragic sorrow?

Mark Lunsford, Jessica's father, plead from his heart. He told viewers that no one in the history of the mankind had ever been reformed by sex offender treatment. This is, of course, categorical nonsense. Liberally translated his statement comes down to this: Nothing we do will ever bring his daughter Jessica back to us. His is the infinite sorrow of a man whose loss can never be made good. Jessica was murdered in 2005 at the age of nine by a violent sexual predator.

Of course, Mr. Lunsford was unaware of the numerous studies, including one by Human Rights Watch, that find America's amalgam of sex offender laws to be little more than an obscene mockery of justice. We've created a body of law devoted to combating stranger danger. Never again, we hope, will a stranger abduct and kill a child, we utter. But the sad fact remains that we know there will be other abductions. The human psyche is perverse, and we cannot police desire at the very same time we appeal to sex to sell everything from toothpaste to cars. The laws passed in the wake of Jessica's murder requiring ramped up sex offender registration and harsher treatment of a sex offenders of all types satisfy the need to act, but do so at the cost of social justice.

Debating against Mr. Lunsford was Kelly Pierce of Georgians for Sex Reform, an affiliate of the National Reform Sex Offenders Laws. Mr. Pierce was convicted of looking at child pornography. He is therefore a sex offender. But he is not a violent sexual predator. When Mr. Pierce referred to such things as the low recidivism rate among non-violent offenders, Mr. Lunsford looked surprised. Rarely do advocates for tougher sex offender laws let facts get in the way of their demand for more draconian laws.

Georgia has been a hotbed of reform energy, with recent successes in chipping at away at the perimeter of over-inclusive registration requirements. Central to the arguments for reform in Georgia has been the argument that too broad and aggressive a set of sex offender laws actually harms children. It does so first simply by failing to draw meaningful distinctions between violent and non-violent offenders. It simply makes no sense to require everyone who has colored outside the proscribed libidinal lines in any way whatsoever to register as an offender: this overtaxes law enforcement, which then loses track of the truly violent. Similarly, draconian residency restrictions force offenders of all sorts into tiny ghettos where the lack of meaningful residential and employment opportunities yields the very stressors than undermine efforts at rehabilitation.

Mr. Lunsford was not deaf to these arguments, but he urged litigation to correct these problems. The courts are a hollow hope when it comes to reform of sex offender legislation. Judges run scared far too often of the rage of lawmakers. Effective reform must begin in legislative assemblies. Those affected by sex offender laws need to appear before lawmakers to tell their stories. I know this is difficult and there deal of fear among those who have been victimized by these laws. But lawmakers need to see the faces of those they are stigmatizing with insufficient reason.

So a word of thanks to Kelly Pierce for a heroic performance on Fox News. As everyone with any sense, Mr. Pierce did not kill Jessica Lunsford. A criminal justice system that chooses willful blindness to this is hardly worthy of support. We need more and better debates in the national news media about the harm our sex offender laws is doing to too many Americans, Americans like Kelly Pierce.

Romeo, Juliet and Jury Nullification

The most profound form of "stranger danger" apparent in the nation's criminal justice system arises not in the form of a sexual predator lurking in the shadows. No, the stranger who presents the gravest danger to our society is the lawmaker, judge or prosecutor who seeks to transform the criminal justice system into a blind assembly line. Only if we the people take back the power that is rightfully ours can justice be done.

Consider the so-called Romeo and Juliet laws criminalizing consensual sexual contact between young people when one of the participants is below the age of consent. 

Laws raising the age of consent to 16, 17 and 18 years of age were enacted throughout the United States in the late nineteenth century in response to rapid industrialization. There was a fear that young girls leaving their homes in rural communities would be subjected to danger in the cities where factory jobs were plentiful. Activists responded by insisting that the age of consent be raised from 10 and 11 years old. The law was passed not to prohibit acts of curiosity or even love between young people. It was to protect the young from stranger danger.

These laws are still on the books today, and many a young person is now in prison, a felon, a lifetime registrant as a sex offender or otherwise consigned to the indefinite purgatory known as sex offender treatment for the simple act of sexual curiosity. We put these young people on trial and never let the jury know what the consequences of a guilty verdict entail.

When these crimes are charged, a defendant is cast into the criminal justice system. And it is at this point that the newest form of stranger danger takes place. Jurors are often told only what must be proven by the state to find a defendant guilty. Jurors are given no, or, depending on the jurisdiction, little responsibility for punishment. We ask jurors to determine guilt in a vacuum, divorcing the crime from the consequences of being found guilty of it. This is moral cowardice.

The result is a system in which no one really accepts responsibility for what happens to a young person at trial. Lawmakers pass laws in their legislative sanctuary without any particular knowledge of the person on whose neck the law's yoke will fall. This one size fits all approach often works injustice.

Judges then turn their back on justice when a defendant appears before them. If lawmakers mandate a mandatory minimum sentence, then a judge imposes it. The judge disclaims responsibility taking the judicial version of the Nuremberg defense: he or she is, after all, just following orders.

Prosecutors, too, turn away from the consequences of their acts. Legislators create the crimes and penalties. Prosecutors just move the widgets down justice's conveyor belt.

In this way, government becomes unaccountable. When three branches of government -- the legislature, the courts and the executive in the form of the prosecution -- all turn their backs on one another, link arms, and dance a chaotic jig the result is hardly a thing of beauty.

So where do defendants turn for justice? It used to be a jury was told it was free to serve as judge not just of the facts, that is whether something occurred, but also of the law, to wit: whether the law was correctly applied. Almost every state now disapproves of jury nullification, as do the federal courts.

My sense is that we need to revisit jury nullification. Folks involved in combating the excesses of the nation's failed war on drugs have done good work in focusing attention on jury nullification. Those in the reform community on sex offender laws need to forge a link with with drug law reformers and spread the word that jury nullification, i.e., teaching juries about the consequences of what they do and of their right to refuse to be conscripted as assembly-line workers engaged in the detached work of finding so-called facts regardless of the consequences, is an important American tradition that must be revived.

Here is a link you can use to learn more about nullification. Is nullification unpatriotic? No. It's as American as apple pie. Don't forget for a moment that the greatest stranger danger lurking in the courts comes in the form of judges, lawmakers and prosecutors who don't want jurors to know the truth about what a jury is doing and why.  www.jurorsforjustice.com

Mandatory Minimums A Promising Target For Reform

The single most important criminal justice reform within reach in each statehouse is the elimination of mandatory minimum prison sentences and consequences. The ends of justice require it. Sound economics counsel it. Only anger and fear stand in the way of meaningful reform.

Law students are taught, and judges still pretend, that a judgment of guilty and a criminal sentence should accomplish four purposes: deterrence of the individual who committed the crime, deterrence of others who might commit a similar crime, rehabilitation of the guilty and retribution. We teach that to practitioners of the law, but not to lawmakers. They are presumed to know these things.

I say that lawmakers need re-education about the purposes of the criminal justice system. This is necessary because lawmakers increasingly resort to a one-size-fits-all mindset when it comes to mandating penalties for crimes. The fact of the matter is that offenders, and that includes sex offenders, are rarely identical. Justice requires a measured and calibrated response to the nature of the offense and the character of the offender.

I have sat in judge's chambers and listened to private agonizing by both the judge and the prosecution. A young man who confessed to a Romeo and Juliet crime, falling in love with a young girl below the age of consent, but consenting nonetheless, must be sent to prison, convicted of a felony, be required to register as a sex offender, undergo treatment for sexual misconduct as a consequences of his inevitable probation. These four horsemen appear at the doorstep to he the judge's chambers, but each horseman smirks: they know that some of the men and a few of the women in the room are guilty of doing just what the young man did, they just weren't caught. So the judge does his job, accepts the defendant's guilty plea, and sends him to prison. It is as inevitable as an assembly line.

A criminal offense, and the consequences of committing the offense, including prison and registration as a sex offender, are mandated by lawmakers. Yet these lawmakers are never required to meet the men and women sentenced, or to make any assessment of what risk, if any, they pose to society. In a legislative chamber, lawmakers strike out in the name of decency and innocence. Protecting children is their battle cry. Who would fail to rally to such a standard? The trouble is that these rallying cries often deafen those who want to listen to what justice requires.

The crime of statutory rape has a history. Prior to the industrial revolution, the age of consent was low in many states, reaching to 10 years of age in some states. It was assumed that parents and local communities could police the conduct of young people learning to cope with newly emergent hormones. When young women began to flock to cities from their farms in search of factory work, young women were unsupervised in urban centers. The Women's Christian Temperance Union sponsored legislation increasing the age of consent to 16 and 18 years old. This reform swept the states in the 1880s, and its product remains the law today.

What prompted the law was not a sense that love was a crime, but a fear familiar to current efforts to expand the sex offender registry at every chance: stranger danger. If young women were far from home, any predator could take advantage of them. The law was never intended to crush those young men and women who fell in love before lawmakers thought they should. Romeo ought not to be required to register as a sex offender.

I am not writing in favor of decriminalizing sex offenses. These crimes cut to the very core of a person's sense of self-worth and dignity. When the crimes occur, they should be punished. But I am proposing that mandatory minimum sentences be eliminated so that judges can decide what the appropriate punishment and consequences should be. Social outrage can be expressed by legislative pronouncements of sentences and consequences in terms of rebuttable presumptions.

A rebuttable presumption is a target. Lawmakers can say that for a given offense, a mandatory term of imprisonment of, let's say, one year is presumed reasonable. If a party facing such punishment thinks the prison term should be less than that, he and his lawyer would be free to rebut the presumption by giving the judge reasons to impose a lesser sentence. Thus, in the case of a Romeo and Juliet law, society could maintain its judgment that sex below a certain age is unwise and prohibited, but realize that to every rule there are exceptions. And what justification is there to require registration as a sex offender for consensual conduct?

I believe reform advocates in each state and on the federal level should target statutes requiring mandatory prison time and registration for extinction. Each time you read the word "shall" in a statute, a terms of art eliminating judicial choice, rewrite the law to state "should, unless given reasons to do otherwise." Judges will often do the right thing if lawmakers let them. We need to persuade legislators to give judges the freedom to make judgments.

A Nationwide Call For Legal Counsel

I received an email from a reader of this blog at about midnight last night. He did not believe he belonged on his state's sex offender registry, could I help?

Lawyers are must seek a separate license for each jurisdiction in which they want to practice. While nothing prevents a lawyer from affiliating with local counsel to appear in a jurisdiction to which he is not admitted to practice, this is a very costly way of proceeding. It is often not necessary to incur the added expense of an extra lawyer.

Fortunately, I knew a lawyer in the jurisdiction in which last night's writer's issue arose. I was able to refer the man to local counsel. I am confident that the referral is a good one. I know a little about the lawyer to whom I referred the case.

But often people ask about lawyers in locations in which I don't know anyone. What then?

I would like to compile a list of lawyers throughout the 50 states and territories who have experience in representing those accused of sex offenses. The goal is to coordinate research and defense in these cases: to learn what works and what does not work. To probe for soft spots in the law, and to press for reform both in and out of court.

Please pass this email along to friends and colleagues. Send me notes on those lawyers you'd like to see on the list. I am not sure where this is headed, but I know that the longest journey begins with but a single step. I've just taken mine. I need you to take yours now.

Confidential inquiries and comments can be sent to: napatty1@aol.com.

Sex Offenders and Civil Rights

A law student I admire sent me a note not long ago asking, in effect, whether those calling for the reform of sex offender legislation were opposed to punishment for those engaged in real acts of sexual misconduct. The hypothetical case she used as an example was that of a 50-year-old man who abused a six-year-old girl. Such conduct, of course, calls for a response by the law; child abuse is wrong. No one is asking that it be legalized.

But the current regime of sex offender legislation does far more than target such offenses. It encompasses an ever-widening course of conduct, and it imposes ever-more draconian consequences. Reform efforts are focused on a sense of proportion between offense and consequence. These efforts also ask that lawmakers and the courts give ample consideration to whether some offenses ought to carry criminal consequences at all.

I spoke a week ago at a conference on the reform of sex offender legislation and was moved almost to tears by what I saw: Adults living almost in fear of government and others. Attendees at the conference wore name badges that simply gave their first name and their state of origin. When I questioned why this was so, one participant told me they were afraid of retaliation by government actors. That struck me as almost paranoid, but the paranoia has its source in laws at once so savage and harsh that I understand the fear. It is, after all, a criminal offense is 13 states to urinate in public: doing so will land you a place on the sex offender registry, and the communal scorn that comes of this. No wonder people are afraid.

While at the conference, one man asked whether the treatment of sex offenders was a civil rights issue. Had the time not come for concerted legal efforts to challenge laws that are overbroad in application and often cruel and unusual in application.

I am not sure how much relief the courts are prepared to offer. My sense is that reform of these laws is primarily a legislative effort, and that nothing will be as successful in promoting change as grassroots efforts by those harmed by these laws. Judges, for example, are afraid, often reluctant to act when they must face re-election or retention hearings. Even in the federal courts, where judges have lifetime appointments, political pressure can be keen: Public hysteria is focused now on United States District Court Judge Robert N. Chatigny, a nominee to the Court of Appeals for the Second Circuit: Muckrakers claim the judge is soft on sex offenders and therefore unworthy of confirmation. This is scary stuff. Who wants to stand next to a sex offender?

But lawyers can play a role. We can litigate cases or controversies arising under state and federal constitutions. Ohio's Jeff Gamso just won a spectacular victory under the Ohio constitution, persuading the state's Supreme Court that it's sex offender classification system involved a violation of the state's separation of powers clause. Other states have similar doctrines and practices. Lawyers need a clearing house to share this information.

What's needed are lawyers willing to give of their time to help push reform. Needed even more is an organization to provide administrative support for the lawyers. 

Someone asked a question from the floor of the Washington conference last week about what it would take to form a committee of lawyers willing to support the reform. Here's the answer: Your question has prompted one lawyer, me, to declare a willingness to serve. I'll be reaching out to other lawyers with an aim of finding folks in each of the 50 states. But now I have a question: When we've lined up all these lawyers, we'll need help moving paper and gathering information. Where will we find that support?

Is Al Gore A Sex Offender?

There is a difference between violent rape and other forms of sexual misconduct, just as there is a difference between the inappropriate touching of a child and that of an adult. We all recognize that in the cold light of day. Perhaps that is why Al Gore is being given a pass.

The former vice president apparently invited a masseuse up to a Portland, Oregon hotel room in the Hotel Lucia in 2006. While there, he apparently made "unwanted sexual contact", needing more than a little kneading. The woman's lawyer contacted the police, but when she refused to be interviewed by law enforcement the case was closed for lack of evidence. The woman's lawyer said she intended to sue Gore civilly.

It sounds an awful lot like a shakedown to me, although one really does question the wisdom of inviting a woman up to one's hotel room for some innocent flesh pressing.

Apparently, the civil suit did not turn out as well as the woman hoped it would, because in 2009 she finally turned up at the police station to make a complaint.

Multnomah County District Attorney Michael D. Schrunk told reporters this week that the case was closed initially because "the woman was not willing to be interviewed by the Portland Police Bureau and did not want a criminal investigation to proceed." The case remains closed now.

I'm not rooting for the prosecution of Al Gore. But I cannot help wondering whether he is getting a pass because of his status. I suspect there are many men in Portland labelled sex offenders for mere unwanted touching of another adult. Why are these men labelled sex offenders? Is it because they lack Gore's status, wealth and power?

The testimony of a single witness, if believed, is enough to convict of a crime in the United States. In sex cases, that is sometimes all the state has, especially in child sex crimes. When a prosecutor decides in some cases that one witness is not enough, the public is right to wonder how such distinctions get drawn. Does a prosecutor have too much power when he or she can pick or choose whom to prosecute without review by any court or judicial officer?

Al Gore is lucky. He won't be charged with a sex crime. He won't be required to register as a sex offender. He won't be required to attend sex offender treatment where he will be required to admit to deviant desire or be sent to prison.

Al Gore caught a break. Good for him. But what about all the other guys who are destroyed by a criminal justice system that cannot distinguish a violent rape from an embarrassing mistake?

Sex Offenders, Lawyers and the Burden of a Voice

Almost every time I stand in the presence of a group of people to talk about sex offenses and accused sex offenders I face the scorn of those assembled. Few crimes are as reviled. But today was different. I stood in the auditorium of a church in Washington, D.C., and faced a friendly group. Imagine, a hundred or so folks looking upon me with approval.

I was a guest of the second annual conference on the reforming sex offender legislation sponsored by a group called, appropriately enough, Reform Sex Offender Legislation. It felt good to be among friends. I know the sorrow they and their families have faced in the relentless and indiscriminate prosecution of these cases.

One thing is abundantly clear: Our laws fail to discriminate between and among the various forms of sex offenses. There simply is a difference between a violent sexual offender and a young man who looked at a few pornographic images of children online or engaged in consensual sex with a young neighbor close in age. But the law requires a one-size-fits-all response to these offenses once a person is released from prison: requiring everyone to register as a sex offender is draconian.

I said as much and more to an audience already persuaded. They've lived on the front lines of this war against over-criminalization and hysteria. I felt today like a prosecutor: preaching to the choir.

At the end of my part of the presentation, someone asked what it would take to get a committee or group of lawyers together from around the country to serve as an intellectual catalyst for change. I told the speaker that I thought there was such support, although it might not yet have taken shape in the form of a formal committee. "You are closer than you think," I said. "You might just be the foot; and I might just be the ass."

I'm sitting on a train thinking about that remark. I've never really trusted movement lawyers. The law is not philosophy. Individual clients come to me and I do not want to be encumbered to anything than the very discrete and tangible interests of my client. No two clients are alike, each brings his or her own menu of issues to the table.

But I wonder, just now. I responded to the call to attend the event because I had seen one client after another socially decimated by the law's unfeeling and unthinking rigidity. I believe reform of sex offender laws is necessary. At this stage, I do not think that there is much the courts are willing and able to do. Most judges adopt a form of intellectual cowardice when things get tense: Like junior officers in the Nuremberg dock, they plead that they were just following orders when they mete out justice with a sledge hammer. They blame legislators for the rules they are sometimes ashamed to enforce.

I believe the front lines of reform will come in the state legislatures. That is where ordinary family members of those harmed by over-harsh laws can tell their stories to those with eyes open to the truth. We say of federalism that the states are laboratories of change. I believe this to be true. I do not believe the federal government is a progressive instrument for change: Its scope is so broad it panders to the lowest common denominator. John Walsh is a hero on the national set; I for one find the 25-year wake for his murdered son to be maudlin.

I don't know whether I am willing to join a committee of lawyers dedicated to changing the law. In confessing this, I acknowledge a certain moral and intellectual cop out. I left a promising academic career at its inception due to a certain epistemological weariness. If there were no larger truths, what was there to teach? The practice of law has liberated me, if not from the dark ghosts inhabiting a dark world, then at least I am liberated from the paralysis and seeming nihilism that comes of a too close familiarity with the leavings of what I sometimes feel is a spent Western intellectual heritage.

But the good people I saw in Washington, D.C., today issued a challenge that echoes. What can be done, they asked, about the suffering their families and friends endure? Implicit in their question was a request for help. I've some soul-searching to do. It's been perhaps too easy to sit on the sidelines and toss gratuitous scorn at visions of the good. Even if there is no certainly as to what goodness requires, that does not prohibit one from opposing unintended consequences resulting in something just this side of evil. I am not saying that sex offenders ought not to be punished; I am simply saying that not all offenses are alike. Voiceless people need others to speak for them.

Whether to become such a voice is a hard question to contemplate.

A Call For Reform of Sex Offender Legislation

I'll be speaking this weekend at a conference in Washington, D.C., devoted to the reform of sex offender legislation. One hundred or so folks from around the nation are gathering to brainstorm on what to do about a body of law that is often harsh and indiscriminate. I should have reached out to readers here long ago for suggestions, but I didn't. If you have suggestions, please leave them in the comments section here. There's still time for me to amend my remarks.

My sense is that relief must come in the form of legislative action. The courts are simply ill-equipped to do much good. There are rare victories, such as the Ohio ruling by the state Supreme Court removing offenders from the sex offender list because the registration requirement violated the state's separation of powers doctrine. But this rare legal victory can be undone simply by drafting new requirements through the appropriate branch of government. Politics is where relief will come, not the courts.

What I see behind closed doors is frustration among judges and prosecutors in the following areas:

1. Requiring prison time and making felonious the violation of so-called Romeo and Juliet laws. These statutes typically involve claims of statutory rape between a minor and a suitor close in age. Consent is not a defense in these cases, and prison is mandatory. My sense is that there is support for legislation eliminating the requirement for prison time in such cases. It might also make sense to downgrade the offense from a felony to a misdemeanor to avoid the disabling effect of a felony on a young person's career chances.

2. Elimination of mandatory prison time for Internet-related crime in which there was neither attempted nor actual physical contact with another person. Many states and the federal government now require prison sentences for possession of even a handful of pornographic images of children. Judges often despair over the rigidity of statutory schemes requiring imprisonment of defendants in which there are no tangible victims proximately related to the possessory offense.

3. Increased accessibility to diversionary programs for those accused of child pornography offenses. Connecticut, for example, recently enacted a new psychiatric accelerated rehabilitation program. This program permits folks to submit to a period of probation and to get treatment for mental illness. If the applicant successfully completes the program, the criminal case is dismissed. The only problem with this law is that lawmakers have decreed that it is inapplicable for those accused of possession of child pornography. This legislative decision should not trump medical judgment.

4. Elimination of mandatory prison time for non-violent sex offenses. Lawmakers can easily and constructively express social disapproval of deviant conduct by rewriting these statutes to create a presumption in favor of prison time. But this presumption should be rebuttable for good cause shown.

5. The current mania over sex offender registries is little more than moral panic. The overwhelming majority of sex offenses are committed against victims by family members or caregivers with direct and consensual access to the victim. Sex offender registries are fueled by fear of stranger danger. Putting a man who abused a family member on a public registry merely stigmatizes an offender who little danger to the community at large. There should be a broader use of law-enforcement only registrations. These lists should not be disseminated to the public.

There is traction for these ideas among judges and prosecutors. When no one is watching, and they are free to speak their mind, judges and prosecutors are often in despair about a law too rigid in conception, and too inflexible in implementation to serve the ends of justice.

What other options have you heard mentioned behind closed doors?

Pushing Back Against Crazy Child Pornography Laws

Criminal defense lawyers have two reactions to cases involving possession of child pornography: either the lawyer does not take such cases as a matter of principle, or the lawyer takes the case with a sense of foreboding approaching despair. The law involving possession of child pornography is harsh; I will go so far as to call it savage.

An article in the forthcoming issue of the Washington Law Review offers limited hope. "Disentangling Child Pornography from Child Sex Abuse," Carissa Byrne Hessick, 88 Wash. U.L.Rev. (2010).

Hessick seeks to drive an empirical and logical wedge between the frequent claim that possession of child pornography is identical to, or worse than, the actual physical abuse of a child. These arguments are familiar. We justify long sentences by saying that if there were no market for prohibited images there would be no supply. Punish consumers and suppliers will evaporate. It is the suppliers, after all, who engage in hands on abuse. We saw how well that worked in the war on drugs.

This punishment by proxy theory raises troubling due process arguments, Hessick notes. It conflates actual harm with tangential harm. A person looking at a picture is not abusing a child, except in some attenuated, metaphorical sense. Indeed, there is little empirical evidence to suggest that looking and touching are related. Hessick goes so far as to assert that there is no empirical evidence linking actual abuse of children with mere photographs. Indeed, Hessick notes, even the National Center for Missing and Exploited Children reports that in 84 percent of child pornography cases there is no empirical association between possession of pornography and actual abuse of children. One study even suggests the contrary: that in an era in which pornography is freely and widely available on line, men are actually less libidinous. (I have my doubts about that; the rage to procreate is as powerful as the desire to eat.)

Hessick notes that in some states penalties for possession of child pornography can actually be more severe than the actual abuse of a child. In Arizona, for example, the law permits a sentencing authority to impose a 10 year sentence for each prohibited image in a defendant's possession. Thus, the Arizona courts have upheld a sentence of 200 years for a man convicted of possessing 20 images. In such regimes, rational predators actually have a greater incentive to abuse actual children than to look at dirty pictures. Yes, Virginia, the law really can be an ass.

Hessick repeats the common observation that the risk of stranger-danger is vastly overstated. While cases of the abduction of children by those unknown to them are terrifying, they account for only seven percent of child abuse cases nationwide. Hessick wonders whether child pornography laws aren't really a weapon shooting at a fictional target -- the dirty old man seeking to gain entry to the home of an innocent stranger by barging through the computer screen. The real danger of actual abuse comes from those known to the child, a relative or caregiver with regular and unsupervised access to children. Focusing on child pornography displaces the anxiety about what is going on in our own homes when the lights go out.

A moral panic sweeps legislative chambers from one end of the country to other. Everywhere, sentences for possession of child pornography increase. Most judges are afraid to stand against this tsunami of grief for fear that they too will be swept away in the same crazy and unreasoning energy that brought us prohibition and a war on drugs. I recommend Hessick's article. It doesn't solve the problem of an unreasoning law applied in an unthinking manner. The article merely arms willing practitioners and reformers with the conceptual tools necessary to advance the cause of justice.

Hat Tip: JK

Reform Conference Set For June In DC

Reform of sex offender laws in each state and at the national level will only take place if those harmed by these laws speak up. Yet the sense of shame associated with the mere allegation of sexual misconduct drives many people underground. Chances to network and to learn from others are few and far between.

From June 26 to June 28 there will be a national conference on the reform of sex offender legislation in Washington, D.C.

If you would like further information, contact the conference organizers as listed below. I plant to attend. I hope to see you there.

www.reformsexoffenderlaws.org
Phone: 617 497 5273
E-mail: conference@rsolcc.org

We Need A Few More Jack Weinsteins

This past week, an interest group made an assertion I find impossible to believe: Three quarters of those accused of possessing child pornography have actually abused children. Almost every single one of the men I have represented in criminal cases arising from the possession of such images is guilty of far less. Most are simply curiously, a few suffer other, related psychological maladies. In the dozens of sex offense cases I've handled, I have yet to see the equivalent of pornographic reefer madness.

If you have not seen the film Reefer Madness, check it out. It's a 1936 propaganda film about the dangers of smoking marijuana. Marijuana, you see, is the gateway drug of the masses. Start with weed, and end up choking on far more serious drugs. The descent to madness starts with but a single puff. The line between fact and fear is easily blurred.

The line is erased today when it comes to sex offenses. One of the primary culprits blurring that line is the National Center for Missing and Exploited Children. Ernie Allen, president of NCMEC, recently told The New York Times: "Real children are harmed in the production of these images and these same children are harmed every time these images are downloaded and viewed." He presumably gets paid a decent sum for uttering this specious idiocy.

Yes, real children, when they are used to produce a film or photograph, are harmed. The production of child pornography misuses children and should be a crime. But the children are not harmed anew when, in some mildewy basement thousands of miles away, a shamed-faced man sneaks a peak at the images. To suggest otherwise is to live in a fool's paradise.

But opposing sex offenses is a cheap and easy way to score points politically. So every time lawmakers want to feel good about something, they slap a new law, a new restriction, a new mandatory minimum sentence on those accused of sex crimes. Child sex, I have said before and I will repeat again, is the new crack. We want to stamp it out, so we criminalize it. Just when it begins to dawn on folks that the war on drugs really doesn't work, we start a new moral crusade. What is it about our political culture that requires always that there be a villain, some other than we can attack to displace all that makes us uneasy?

Few judges have the courage to call this madness out and to refuse to go along with the charade we call justice. It is not justice to put a man in prison for looking at pictures. It is not justice to lock away a young man for flirting with a police officer pretending to be 14-year-old runway model in heat. Justice requires individual assessments of harm and risk. Most judges, however, approach the task of sentencing like assembly-line workers. Along comes a defendant, the judge looks at the instruction manual produced by lawmakers, and then the judge clips the defendant so that he fits the image the cookie cutter yields. This sort of judging brings the judiciary into disrepute.

That's why I loved this morning's story about Jack B. Weinstein, an 88-year-old federal judge in Brooklyn. Weinstein's been on the bench for 43 years. When he sees a law that is offensive to justice, he refuses to enforce it. Oh, that President Barack Obama were to find a few more Weinsteins to put on the bench. Instead, we get bloodless automatons like Elena Kagan.

Weinstein has refused to impose mandatory minimum sentences when the sentence did not fit the defendant. He has dismissed cases when he thought the Government's charges were a mockery of justice. He takes a robust view of judging, and refuses to do unnecessary harm to those accused.

This makes Weinstein lawless in the eyes of many. A judge is merely to apply the law, not make it. We want lawmakers, after due deliberation and consideration of societal norms, to pass laws. Judges don't have the same fact finding power as lawmakers do. They ought not to overstep and substitute their judgment for those of lawmakers.

I get all that, and in general I support a limited view of the judiciary. But I simply have little confidence in the wisdom of legislators. They too easily succumb to the self-righteous blandishments of groups such as NCMEC. The separation of powers ought not to yield a regime in which blind passion neuters reason.

We used to permit juries to nullify the law when they thought it was wrong. In the early twentieth century, the Supreme Court forbade the practice. We need to rethink that rule. Shouldn't juries have a say in what is done in their name? Judge Weinstein plans to do what trial lawyers regard as the unthinkable in a child pornography trial: He is going to tell the jury what penalty the defendant faces if convicted. That practice almost never occurs. We make infants of jurors all the time, telling them lies and half truths, and then declaring we have done justice. God bless Jack Weinstein for refusing to play charades with the lives of others.

We need more jack Weinsteins on the bench. At least, I think we do. We've a few too many fools in Congress, and far too many crusading for the right thing but using he wrong means.

Comstock's Brave New World?

You could be forgiven the view that the federal government was one of limited powers. That was the framer's intent, after all. Those powers not expressly given to the federal government were retained either by the people or the state. A significant portion of our history has been a sustained struggled about where to draw the line distinguishing state and federal power.

The United States Supreme Court all but ignored that line in today's decision in United States v. Comstock, et al. It did so in a way that terrifies. Call in the therapeutic police writ large.

The case involved the decision of the federal government to detain five prisoners after they had served their criminal sentences. The men were all convicted sex offenders. Because the government believed that the men were mentally ill and still posed a danger to reoffend, they moved to commit them civilly, under a federal statute. Three of the men were convicted of possession of child pornography, one was convictetd of illegal contact with a minor, the fifth was convicted of aggravated sexual assault of a minor.

Under the federal civil commitment statute, the men could be detained after serving their sentences if the Government showed, by clear and convincing evidence, that the men were: 1.0 either previously or attempted to engage in sexually violent conduct or child molestation;" 2.) suffered from a serious mental illness, abnormality or disorder; and, 3.) are sexually dangerous to others or would have serious difficulty in refraining from sexually violent conduct or child molestation. A potential detainee has a right to a hearing, counsel, and the right to put on evidence. But a detainee has no right to a jury. This loss of liberty is regarded as civil rather than criminal in character. Whether a person is to remain detained can be reviewed every six months on demand of the detainee.

The majority decision of the Court, written by Justice Breyer, justifies this sweeping new federal power as little more than business as usual. This power, he writes, is simply a power necessary and proper under Art. I, Section 8 of the federal Constitution.

What shocks is that the Court refuses even to make passing reference to the Ninth Amendment of the Constitution. That amendment, the forgotten child of the federal Constitution, reads as follows: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Court has never, in more than two hundred years of jurisprudence, paid more than lip service to those rights retained by the people.

This decision explands federal power in significant ways. First, it applies a statute that was no doubt intended to hold violent felons to those accused of mere looking at pictures, the three detainees accused of looking a child pornography. Assuming that this is a disorder, is it really a crime involving sexual violence to a child or child molestation? On this broad application of the statute, the federal government would justified in seeking unlimited detention of anyone who looked at a prohibited image of a child.

Students of constitutional law are familiar with the enumerated powers doctrine. It is said that the federal government is one of limited powers. To the states, the theory goes, belongs the police power, that authority governing the health, education and welfare of a citizenry. What justifies this sweeping rebuke of the state's ability to police its citizenry?

Granting the federal government what amounts to an expanded police power in a climate of moral panic is chilling. The federal government does on occasion prosecute men federal prosecutors believe have been dealt with too leniently by the states. This is no violation of double jeopardy, lawyers know, as different sovereigns can see things differently.

The federal government has customarity served as a counterweight when the states succumb to craziness. In Comstock, the Court became the chief cheerleader for what can easily amount to state-sponsored craziness.

The Tricky Defense Of Entrapment

Does it matter if the young woman enticing you to take a trip between the sheets is really a police officer in disguise? When you are arrested for a sex crime, isn't this really entrapment? After all, if all you've done is talk you haven't really done anything illegal yet, right?

The defense of entrapment is far more limited than most folks realize. To succeed, a person putting on such a defense must show that the prohibited conduct of which they are accused is something they only did because the government induced them to do it. In a culture in which desire is used to market almost everything, can anyone real say that the government made me lust?

I see a lot of entrapment claims just now in the area of Internet solicitation scams. There is an active task force in Connecticut of law enforcement officers engaged in salacious talk in chat rooms. They look for a guy taking his libido for a walk on line, tell him they are curious, and then engage in all manner of salacious talk. Depending on how things progress, the defendant is then charged with solicitation of a minor, if he never leaves the comfort of his own home, or attempted risk of injury to a minor, if he shows up at a prearranged assignation. More than one of these young men has asked me whether they weren't entrapped.

Strictly speaking, the answer is no. One Connecticut case described entrapment in the following terms: "Entrapment is the inducement by a public servant or police officer of a person to engage in criminal conduct that had not been contemplated by him, for the sole purpose of instituting criminal prosecution against him. The defense is available to the defendant only if he would not have engaged in the proscribed conduct but for the inducement of the police officer." State v. Grant, 8 Conn.App. 158, 164 (1986).

Plenty of the language in this definition is helpful to the defense. Internet sting operations are designed solely for the purpose of instituting prosecutions. That's why officers troll pretending to be young teens.

But the defense fails typically for several important reasons. First, the defendant is the one who travels to a destination, whether virtual or real, expecting to make contact with a young person ready, willing and able to perform prohibited acts. No one forces the defendant to log on and inquire about the sexual experience of a perfect stranger.

In addition, and here's the real rub, in a society as saturated with desire as ours can anyone really claim that an amorous assignation is not something they've contemplated? We're wire to procreate. Many societies repress and channel this instinct into forms easy to control: we've set these instincts free. Is it any wonder that transgressions are common?

I'm not blaming Madison Avenue entirely. Nothing about the sale of aftershave justifies the molestation of a kindergartner. But the so-called Romeo and Juliet crimes, where a young woman just below the age of consent yields, are troubling. How many models hit the runway before the age of consent? How is it that we can use desire both to entice and to punish? Uncle Sam in drag as a dominatrix?

I raise these broader cultural issues merely to provide a setting for the fact-bound sorts of inquiries that take place in a courtroom. Relaxed though our general standards may be when it comes to sensuality, the law is savage in its consequences for crossing lines drawn by lawmakers. Don't expect to defend successfully a sex case by blaming society. We're expected to toe these lines, even if they make no sense.

It is sadly common when representing a young man in an Internet sting case for me to say something along the following lines: "If it seemed to good to be true, it probably was." The sad fact remains that many young men, when their hormones are revving and raring, have lost just enough self-control to lose the critical insight necessary to distinguish fact from fiction. This should not make them sex offenders; it merely labels them immature.

Which brings us to the following and final point, and it is a point that I have never tested with a jury. Does a young man playing at sex on the computer really intend to engage in criminal conduct?

On the surface, I suppose, the answer is clearly yes. A person soliciting the attentions of a fourteen-year-old for purposes of sex violates the law. But how many people playing games on line really believe that they are interacting with another person?

The Internet informs, but it also depersonalizes. Read the comments section to an on line newspaper sometime and ask yourself the following: How many of these folks would really have said the nasty, vile and intemperate sorts of things they posted if they were required to post their real name? How many folks would own what they write?

Not many, I suspect. I believe the same to be true about young men playing on line Lothario. On line sex has replaced yesteryear's pinup, only the sticky fingers remain the same.

Young men ought not to be headed to prison for flirting with an avatar. Something other than vagrant desire and fantasy unbound should be required to make out a crime. The law as it is now applied makes no effort to determine whether the defendant in solicitation cases actually believes that his lustful interlocutor is really a child, or whether the defendant actually intended to do more than dream about an encounter.

Under current law, you play on line at your risk, and I advise against it for both moral and legal reasons. But I still think the law is wrong. I've seen young men guilty of no more than taking Madison Avenue a little too seriously go to prison. It's madness.

Child Sex: The New Crack?

Those of us who earn our living on the front lines of the criminal justice system are often too shell-shocked to recognize larger trends. But when things go beyond a mere trend, and take the form and shape of a tsunami, everyone notices. So I write today about allegations of sexual misconduct with minors, the latest tidal wave to inundate the courts. It is the new crack cocaine of the criminal justice system.

There was a time when it seemed as if every other call for representation was from some soul caught within the web of a federal indictment for conspiring to sell crack cocaine. Here's how the game was played: The feds would target a suspected dealer. They'd watch him, record his phone conversations, and then, after several weeks, sweep in and arrest every person who as much as touched a rock of crack. Those at the periphery of the action were expected to plead guilty and get favorable terms in exchange for fingering those at the center of the conspiracy.

These cases became an art form, with predictable acts, plots and characters. (Client: "We never talked about the coke on the phone." Lawyer: "Yes, I know you talked about shrimp. But tell me, what have you to corroborate that you were really in the business of selling seafood?") Once you've seen a couple dozen of these, you've pretty well seen them all.

Today new melodramas are unfolding. They all involve child sex claims. It seems that two of every three calls we get now comes from someone accused of either looking at child pornography on line, enticing a purported minor on line to have sex, or groping a niece or daughter of a friend. Law enforcement has got its game down pretty well now, so expect more and more of these cases to be brought until, for reasons as yet unforeseen, some new fashions sweeps lawmen off their feet.

I'm not the only lawyer to observe this trend. I live in a tiny jurisdiction, and cover courthouses throughout my state. Lawyers gossip about what they are doing. Many lawyers are stunned by the sudden volume in these cases. Sex, I say, is the new crack.

I doubt seriously that some new wave of lechery has overtaken our society. In terms of the actual contact between adults and minors, I suspect things are pretty much the way they have always been. Sometimes the wrong things go bump in the night. We no longer overlook these transgressions: Today we seek long periods of incarceration in the effort to banish untoward desire.

But what has changed in the ubiquity of images on the Internet. I represent plenty of young men who took their libido for a walk on line. Some of them got curious about things they might never try. They looked at pictures of forbidden acts. Now the state and federal government want them to go to prison. It seems like a waste of life and human potential.

Other young men dabble at sex on line. The forms this lust takes is sadly common. If I hear about another guy in his twenties promising an undercover cop posing as a 14-year-old girl that he will teach her to give oral sex like a porn star, I'll sigh a deep groan of despair. I fear that Dante's vision of Hell is far more interesting that the warp and woof of our contemporary sins. Lust is ugly; we bend in only so many grotesque ways.

But here is what I worry about: As law enforcement perfects the craft of prosecuting these cases the standard for when to prosecute will get lower and lower. I now represent a young man accused of possessing four images of child pornography on his computer. This calls for prison. If there were only three images, he'd go free. So we fight now about whether he actually looked at all four images, and whether that matters. Were lawmakers thinking when they passed laws calling for mandatory prison time?

Or consider a new statute in Connecticut, aggravated sexual assault in the first degree. Touch two or more children under the age of 13 in an improper manner, and you look a twenty-five year mandatory sentence dead in the eye. That's the same penalty as required for manslaughter with a firearm. The real import of a statute like this is to frighten defendants into a plea: anything to avoid the risk of trial, whether they are guilty or not.

We're in the grip of a strange moral panic. The end does not seem yet to be in sight.

It is far too easy for lawmakers to pass legislation requiring draconian sentences from within the antiseptic chambers of a legislative assembly. Who, after all, wants to appear to go easy on those who abuse children? But not all forms of abuse are identical, and neither are all defendants. Sometimes a mistake is just a mistake and the harm than comes of making it a crime dwarfs all justice. I wish that lawmakers were required to go to court to see their handiwork.

I wish that lawmakers could see that making child sex allegations the new crack cocaine of the criminal code is a manifest tragedy. I wish, finally, that each lawmaker were required to spend a few months behind bars to get a sense of what it is to live isolated and afraid. Is it to much to ask those who make the product to test drive what they are producing?

A Miscarriage of Justice

When the criminal justice system fails, it is, perhaps, normal to expect someone to take responsibility for the failure. The rhetoric of prosecution is steeped in the ethic of personal responsibility. Horrible things are done to people in the name of holding them accountable for what they have done.

Who will take responsibility for the failure in the case of State v. Pentland, decided just this past week by the Connecticut Supreme Court?

I wrote about the case before on these pages, but I did not use the name of the defendant. The case is mine. I wrote here and in a weekly legal newspaper in my home state of Connecticut to chide the state Supreme Court, which sat on a decision in the matter for 18 months. I wrote reminding the court that justice delayed is justice denied. The very next week, the Court acted, prompted to act, finally, I suppose, by something like shame. The court should feel shame over its decision. Perhaps they why it sat on it for so long. Coming home with a failing grade on a report card is never pleasant.

Robert Pentland was represented by Mickey Sherman at the time of trial. He faced charges arising from the state's claim that he had fondled a child. At the time of trial, Mickey scored a coup. Mr. Pentland pleaded under the Alford doctrine to two misdemeanors, was given a suspended sentence and was told by his lawyer and the judge that he would not have to register as a sex offender. (The state merely stood by and said nothing, a form of adoption of omission.) The client had every reason to believe he would face a future unclouded by the manifest cruelty and absurdity of the new sex offender regime: humiliating "treatment" by half-ass probation officers bent on humiliation, and, perhaps titillation; registration as an offender, a felony conviction; imprisonment.

But storm clouds were on the horizon. Mickey should have seen them. Someone should have warned the client. There was trouble written all over this plea.

First and foremost, the courts typically do not accept an Alford plea in a sex case. Indeed, state statutes make clear than an Alford plea is no bar to treatment as a sex offender.

Plea bargaining is the work of the devil, and it is at the heart of what lawyers do. Every case must be prepared for trial. But a lawyer's job is to provide clients with choices at every step of the proceedings. Many clients are ill suited to face the risk of trial. Many choose to work out a deal of some sort. Even innocent men, like Mr. Pentland, can choose to avoid the risk of conviction by taking a deal. Mr. Pentland thought he had scored a hollow win of sorts with his plea: just a brief period of probation. Indeed, he never admitted to committing a crime at all: An Alford plea permits a client to enter a plea merely by acknowledging that the state's evidence, if believed by a jury, could carry consequences far worse than those for which he bargained.

Imagine Mr. Pentland's surprise when the state claimed he violated his probation by not registering as a sex offender. Didn't his lawyer and the judge tell him he did not have to register? Didn't the state stand by silently as this information was relayed to him? Wasn't this a condition of the plea he entered?

Mr. Pentland litigated this issue while on probation. He incurred the expense of new counsel, one of them being me. When the trial court told him simply, "Oops, I guess I was wrong, register or go to prison," Mr. Pentland registered. I took an appeal, and off we went to the state's Supreme Court.

The Court's ruling is nothing if not cynical. Mr. Pentland's remedy, the court held, was to seek to vacate his plea. But he must register. So sorry for the fact that your position in the world changed as a result of the plea; so sorry that you relied on a deal approved by a judge of the Superior Court; so sorry that both your lawyer, the state and the court failed you. The court refused to enforce the terms of the plea bargain Mr. Pentland struck.

The court, in essence, failed to take responsibility for a miscarriage of justice. Instead, it transferred responsibility back to the client.

What shocks about the decision is its souless logic. "Go ahead and move to vacate your plea," it said. Of course, that carries with it the risk of a new trial, a risk the client bargained to avoid. Had the plea been vacated, all the effort that he had put into complying with probation would be for nought. Only the State can rape you and then send a bill for its services.

I had hoped for justice in this case. I had hoped that the Court will say what is said on used car lots all the time: a deal is a deal. But the implied warranty of good faith and fair dealing is more than we can expect at the time of a plea, apparently.

Mr. Pentland is now discharged from probation. Customarily, that means that he is no longer in custody and the remedy of a habeas corpus petition is foreclosed. But given the United States Supreme Court's recent ruling about the immigration consequences of a plea as a material factor in disposition, perhaps Mr. Pentland should turn to the federal courts for habeas relief. The Connecticut courts have mocked him. Perhaps the federal courts will recognize that being placed on the sex offender registry is the equivalent of internal exile, and that this man was denied justice by not just the trial court, but the state Supreme Court. This is no mere incidental consequence to a plea.

State v. Pentland is a miscarriage of justice. The pity of it all is that the Connecticut Supreme Court. The case proves that when it comes to sex offenses, the defendant gets screwed.

Making Money Ruining Lives

The state's make money registering the dead on sex offender registries? It's true. Calling people names is a big money business, paid for by We the People.

Ordinary Heroes

Here is a shot of Illinois members of RSOL who recently travelled to Springfield to lobby for more humane laws. These folks are heroes. Now, if they would only identify themselves with comments.

You can read about the trip here. This is a good example of what should be taking place in each state. Is your state doing enough?

A Sobering Rejection

On the theory that a lawyer is only as good as his last verdict, I am not very good at all. A jury returned a verdict against my client this afternoon, convicting him of two counts relating to the sexual abuse of a child. That the jury acquitted on two related counts is no consolation. My client faces fives years behind bars at a minimum. He insists he is innocent.

A hard truth of criminal defense work is that we lawyers are not witnesses to the events that bring a case to trial. We are advocates. Hence, when a jury returns a verdict against our client it is a very personal rejection. The jury has listened to, and then rejected, the argument we made on behalf of a client.

But some cases cause me to scratch my head and wonder more than others. In the verdict returned today, my client, a man in his forties, was accused by an eight-year-old girl of having placed his hand down her pants and "tickled" her. When he was done, she claimed he smelled his fingers.

At least that was one version of her testimony. At trial, the girl, now ten, claimed the tickling took place in a different location, and that events wholly at odds with her prior statements had taken place. We were shocked by the difference in recollection and argued that all of her testimoney was unreliable. The state was reduced to arguing that all the jury had to do was believe any part of it, begging for an incoherent conviction. The jury forgave the inconsistencies, and did not credit my client's denial at all.

The terror of the case is that there were no other witnesses, no corroboration of the girl's claims. Nothing. Just the word of an eight-year-old living in a house characterized by the turmoil of a bitter divorce. This and this alone is sufficient to convict.

I tried a good case. I know I did. And there is nothing more I could have done for my client. But still the sense of failure weighs heavily on me. I look at this case and wonder whether I would ever consent to babysit an eight-year-old child, or otherwise be left alone with a child. And the answer is simple: I would want a witness. It is too easy for a child to see Santa one moment and wicked uncle Ernie the next. Jurors apparently feel obliged to take any utterance from the mouth of a babe and rely upon it.

So I failed my client. He was convicted. He proclaims still his innocence. But to six jurors and now a world of strangers who will never know him, he is a child molester. But I wonder, really, whether it should be so simple to reach these devastating judgments on such flimsy evidence. I wonder whether the truth was not crucified in this trial. I wonder, and I retreat into a place of silent recrimination as I prepare for the next such trial.

I am free today. My client is out on bond. The state can crow over a conviction. But somehow this seems less justice than casting darts. When the lone word of a child, inconsistent and uncorroborated in any respect is sufficient to convict, we are all potential victims.

The Forgotten Case Of S.C. 18178

We ask a lot of clients when we ask them to trust that justice will be done in the courts. While we seek to improve public confidence in the courts, there is still plenty of reason to be suspect. Consider a case of mine. His case is docked under number S.C. 18178.

I write about it now with the client’s consent, but I do not use his name. I write about it because I cannot get the courts to act, and my client has grown weary of waiting for justice. I write out of a sense of despair.

The man pleaded under the Alford doctrine on the eve of trial to offenses arising from the complaint of a young child for whom he had baby sat. Such a plea reflects a compromise: the client does not acknowledge doing what he is charged with; he merely agreed to accept a plea because the terms are better than what he would get if a jury believed the state’s case.

My client received no jail sentence. He was told by his trial lawyer and the trial judge at sentencing that he would not have to register as a sex offender. The state said nothing as the lawyer and judge assured the client he would not have to register.

Here is what was said at the time the plea was entered. “[I]t is our understanding and belief, I think as well as the State’s attorney, that none of these charges carry any sexual offender registration,” his lawyer said. “That is my understanding,” the judge echoed. By used-car lot standards the client had struck a deal and knew what he was buying. An implied condition of this unholy contract was no registration.

But we all know that the exalted and rarefied standards of a used car lot far exceed what measure of justice we offer those accused of crimes. In the criminal court, the implied condition can be condensed to the following rule: Screw the defendant to the wall anyway you can. Errors at trial are harmless. Lawyers provide effective assistance of counsel even when asleep. Trials need only be fair, not perfect. The presumption of innocence is a three-dollar whore, and many courts continue to argue her cost is too high.

After sentencing, the client sought to go about the difficult task of rebuilding his life.

Imagine his surprise when well after the plea he was informed that he would have to register as a sex offender.

I got involved in his case after a handful of other lawyers had tried and failed to extricate the client from this lawless nightmare. Just barely I was able to keep him out of jail. He registered as an offender, and now lives with the unbearable strain of a crackpot neighbor’s monitoring his every move. She thinks she’s protecting the world. When my client asks for protection from her, the police ignore him.

The life of a sex offender is nasty and brutish, you see.

So I appealed the requirement that he be placed on the registry. I filed my brief in the Appellate Court of the State of Connecticut. For reasons unknown to me, the state Supreme Court moved the case to its docket. And I argued on behalf of my client. The argument took place in mid-October 2008, eighteen months ago.

I did not think the argument before the justices went well. “Why didn’t your client petition for habeas corpus relief?” one justice asked. “The remedy he seeks is the benefit of the bargain he struck. He does not want a new trial,” I answered.

From time to time my client asks me when the court will act. I tell him I do not know. There is nothing I can do. We have petitioned Oz. We must now wait.
But how long must this man wait for a decision? Forever?

I called the Supreme Court clerk’s officer the other day to make sure I hadn’t missed publication of the decision. The case is still undecided, I was told. I passed word along to my client. His response is privileged.

How long, Madam Chief Justice, must we wait for a decision in this simple case? Will it be another month, or another year? Justice delayed is justice denied, I’ve heard it said. Clarence Darrow once observed, there is no justice in or our of court. Had Darrow lived and practiced in our fair state, he might also have added: “There are no final decisions, either.”

Reprinted courtesy of the Connecticut Law Tribune.

In Re Roman Polanski

I was puzzled yesterday when I saw syndicated columnist George F. Will chortle on television about national sovereignty. He thinks that's what the people want. They want their government to feel secure in its power. Call Will a crypto-royalist.

Will was talking about Arizona's new immigration law, of which I will say more in another essay. For now, I'd like to test the Will thesis: Do we the people really give a hoot about sovereignty? The answer is, of course, yes, but we fear it when it is directed at us; we love it when it is directed at what we fear. Hence, leave my loved ones alone, but keep me free from meddling darkies sneaking across the border. Will, of course, is a churlish white guy; he has difficulty fathoming a world of lovable Mexicans.

This schizophrenic attitude is on display in the Roman Polanksi case.

Polanksi, you will recall, was convicted of raping a 13-year-old after liquoring her up. The party took place at Jack Nicholson's house. He pleaded guilty, and then fled the country before sentencing in 1978. He's not been back in the United States, so far as we know, since. We fear child rapists.

The film director has not been living in hiding these past thirty years. But California prosecutors only recently decided they needed to do something about Polanski's flight from justice. They seek extradition of Polanski to the United States.

But a funny thing happened along this twisting and turning road. The victim in this case, Sandi Gibbons, lost interest. Oh, it helps that she was paid a handsome settlement of her civil suit. The sum, though not confirmed as actually paid, is rumored to be $500,000. But more fundamentally, Ms. Gibbons just wants the whole sorry saga to be ended.

So Ms. Gibbons did what a crime victim has a right to do. She filed a petition in court. She told the California appeals court she wants the case against Polanski dismissed. She is the victim after all, right? And victims have a right to be heard, right? Don't we fear governments that forget the very people they serve?

But here is how it really works in most courtrooms in the United States: victims have a right to be heard, but the government has the right to decide. The admixture is a perverse abdication of responsibility by prosecutors.

I saw it first-hand again the other day. The prosecutor in a case I am handing was "open to the possibility of a walk" for my client. In other words, if the man entered a guilty plea, the state would consider no prison time. But first, the victim had to be consulted. When the victim wanted jail time, the state said it's hands were tied? Prison was now a requirement. Who is calling the shots in this case?

A prosecution pits the state against an individual accused of breaking the law. In most crimes, there is a victim. The victim, we say, has a right to be heard on the disposition of any case. But being heard is not the same as dictating terms. Many prosecutors simply do a victim's bidding. It is easier that way. There are fewer angry phone calls and meetings; less fuss come time for the annual review of a prosecutor's performance. Many, if not most, prosecutors play pimp to a victim's rage.

Doesn't the Polanski case disprove this rule? After all, the victim has been heard. Her plea has been considered. But the state is still acting. It's sovereignty has been injured. It needs its pound of flesh from a 76-year-old man.

This is where George Will's remark comes into focus. The state cares about sovereignty, it's power to act within the sphere of its influence. Attacking the state's sovereignty is like, well, taking a child's virginity. It is an insult not easily forgiven. The state must prove that its orders cannot be ignored. Polanski must be crushed.

But where Will is wrong is that the people aren't jealous to guard the sovereignty of the state. That jealousy belongs to the government. It will use anything to protect its power. The state will even turn on the people it serves.

Hence the paradox of the Polanski case. It pursued Polanski initially because of the harm it did to the victim. Presumably she and her family had input into the prosecution. The state then stood behind the angry family and told us all it was acting on their behalf. But when the victim lost interest, the state did not. Now the state stands alone telling the victim it know best. The state must act to vindicate its sovereignty.

I enjoy Polanski's films, but deplore his conduct with Gibbons. In a prudish way, I think less of Jack Nicholson, an actor an admire, merely because the rape took place in Nicholson's home. The ease with which I assign guilt by association startles me. But troubling as I find Polanski's behavior to be that conduct palls in comparison to the acts of the state of California, who use the victim just as much as did Polanski. He raped a girl in a private act of lust; California rapes her anew in a symbolic display of power.

Only fools, and George Will, love the state's desire to assert its sovereignty. The state is a fiction that can easily become all too real a menace when it forgets its function. Who is sovereign? We the people. We have constitutions to keep the state from getting to big for its britches and our comfort.

Is Adultery A Sex Offense

Read Jonathan Turley.

Is Tiger Woods A Sex Offender?

May's Vanity Fair is vintage soft porn. Accompanying Mark Seal's piece on Tiger Woods is a series of photographs of some of the golf legend's latest flames. Loredana Jolie Ferriolo bares her ass on a bed at the Walforf Astoria, the collagen in her lips trying, somehow, to say "come hither." Mindy Lawson's tongue nibbles a cherry and sits, looking about as appealing as a prison matron, in a red blouse all but open to a morals charge. And let's not forget the droopy chested Michelle Braun, who struts the hallway of the Breakers in Palm Beach, Florida.

But my favorite photo is that of Jamie Juners, snapped at the Cooper Hotel in New York City. I thought it was an advertisement at first, for an expensive fur shop. The sepia tones look like a shot for the New Yorker.

Sex sells, all right, and Tiger was buying. Spending $60,000 a weekend for the right girl didn't phase him, and why should it. He weighs his money. But the women who consented to be interviewed and photographed relay that Tiger is also cheap. No gifts for these babes. One recalls the only time Tiger ever bought her dinner. He was stopping at Subway. She asked him to pick up a wrap for her. He did, and then it was down to the wham-bam, thank-you- ma'am hustle of a man who cannot keep his pecker dry, even, apparently, for an evening.

It is a depressing read, even if it is, as is usually the case with a piece in Vanity Fair, wonderfully written.

In colonial times, back when adultery was a capital offense, Tiger might be swinging from a rope, together with Ms. Ferriolo. But times have changed. The 26-year-old has a world-class following of rich horn dogs who pay as much as $100,000 for an assignation. She is commonly ferried from one continent to another in private jets.

Tiger's skill with a golf club does not cross over to pick up lines. "You have a perfect body," he told Ms. Lawton on their first rutting. They were in the kitchen of his home. Tiger apparently liked trying out different locations in Windmere, Florida home. But the master bedroom was off limits. Respect for the sanctity of the marital sheets?

Ms. Lawton was as artless as Tiger. She took his penis in her hand in the glittering kitchen. "Wow," she tells Vanity Fair. "It was the biggest I've ever seen." Just how large was her survey?

A psychiatrist might struggle to figure out Tiger. He was married to a woman of legendary beauty, Elin Nordegren, who as a Swedish student was too busy to be bothered with glamor. You see, she has brains, too. She studied child psychology at Lund University in Scandinavia.

Tiger had wealth, a beautiful and intelligent wife, fame and power. So he tossed it all away chasing expensive call girls and women who marvel over comparative penis size. I don't quite get it.

Is he a sex offender? No. His tastes did not run to children or young women below the age of sixteen, the line the law now draws in lusts sandbox. But he is out of control: A libidinal train wreck. Tiger, you see, is the perfect example of a man who takes Madison Avenue literally.

There is a reason that Ms. Juner's come hither shot for Vanity Fair likes like the sort of advertisement that might appear in a tony Upper West Side magazine. She's the prize you are supposed to get if you succeed. Put your nose to the grindstone by day, and who knows where that nose won't go when the Sun, and, well ... goes down.

Tiger Woods is a tragic figure. But the tragedy is really an example of a culture gone haywire. Sex sells. We use it to motivate and inflame every consumer with hormones. Tiger had the money to make whores moan. No crime there, but it is morally tawdry.

I can't tell whether to pity or envy Tiger. Sure, he's lost everything of enduring value. His wife has left him, and taken their children. He is the laughing stock of the world, known as a hypocrite. But, when the lights go down, he takes the red dog walking in ways that, frankly, makes me smirk. He's what a middle aged man would be like if he lived in fraternity houses while running Goldman Sachs. The idea of living in a world without consequences appeals in a midnight, adolescent sort of way.

Tiger Woods is a sex offender. His lust is out of control. The law won't punish him, at least I've not yet heard of a warrant for soliciting prostitution. But the law's lines are arbitrarily drawn. The Puritans would have spanked him but good.

I'd like to see a poll about what college-age males really think of Tiger. I suspect in many quarters, he's more admired than ever. After all, he can buy as much sex as we can sell, and then sell stories about it magazines replete with glossy pictures. He got caught doing what the rest of us are supposed to dream about.

Tiger a sex offender? You bet. And so are the rest of us.

Sunshine In Georgia

The one-size-fits-all approach to the law-enforcement treatment and classification of sex offenders is on the chopping block. Both the George House and Senate have approved legislation that would give folks required to register on the state's sex offender registry to the right to petition the courts for removal from the list.

Of course, no all offenders will be eligible for removal. Only those folks convicted of less serious offenses are eligible to petition for removal.

The bill was passed by the George House of Representatives in March; it cleared the Georgia Senate by a vote of 45-0 yesterday.

Stay tuned. It may soon by champagne-cork poppin' time.

A Call For Help

A woman called yesterday. She was a stay-at-home mother with two small children. Her husband had a good job. Then he touched a woman on the leg in an airplane. Federal prosecutors and the Federal Bureau of Investigation moved in. The man is a sex offender, they concluded. So he goes to prison next week.

How will she keep her home? What will become of her children and her? Are there any support services for her out there?

I explained as gently as I could that the law is an ass. Hysteria governs law enforcement and the courts. We no longer try to distinguish the predator from the merely disturbed. And we never, ever think about the consequences for an accused's family. A man goes off to prison, and his children are in effect without a father. A home is foreclosed upon. We as a society turn a blind eye to this suffering. It is mere collateral damage.

But this damage can last a lifetime. I know because my wife's father did federal time years ago and briefly for his refusal to swear an oath of loyalty to the United States. Decades later, my wife recalls his absence with sorrow and fear of what the government can do.

I promised the woman who called that I would have some email contacts for her. There are support groups out there. People are beginning to organized to challenge laws too harsh for the common good. She promised me she would send me an email about how to reach her. She never did.

So if you are out there reading and worrying tonight, send me an email or call me again. I have not forgotten you, and I have found people who may be able to help.

What To Do When The Police Come Calling

I'm a battle-hardened criminal defense lawyer, so it always surprises me how weak in the knees I get when a policeman pulls me over. The urge to confess runs rampant, even if I haven't done anything. I assume the authorities must have a reason for wanting to talk to me. What have I done?

Police prey upon our tendency to trust them. Yet confusing the sort of soul-cleansing confession one might give to a priest with the Earth-bound variety police officers ask for is playing with Hell fire. Many a man and woman sits now in a prison cell, convicted by their own words.

I pass along some general observations about cooperating with the police in the hope that it may spare you the sorrow that comes of an improvident confession to a lawman. Mind you, nothing I am writing here is meant to encourage folks to commit a crime. I am simply reminding you that however much confession may benefit the soul in some spiritual sense, the corporeal consequences of a confession could well land you in prison. And prison is not good for the soul.

So here are some common myths and misconceptions about what you must do when the police come calling.

1. The police can order me down to the station to give a statement, correct?

Wrong. The police cannot order you to come down and see them. The Fourth Amendment gives them the power to arrest if they develop probable cause to believe you have committed a crime, and they might have the authority to engage you in a brief investigatory detention. But no case stands for the proposition that you are required to come to the station for a chat. Period.

But fear undermines many folk's sense of self-interest. So does a misplaced sense of hope.

An officer may call and say he needs you to come to the station to tell your side of the story. (He may not tell you just what story that is. My favorite investigative technique? Officers show up at your door and ask: "Why do you think we want to talk to you?") The officer may say that if you don't come to the station he will seek an arrest warrant for you.

News flash: The officer is almost certainly going to seek the warrant anyhow once things have gotten to that point. What he is looking for here is a confession, to bolster the warrant and make a conviction all but a foregone conclusion.

The law does not require police officers to get your side of the story before arresting you. In rare cases only does discussing your case with the police benefit you. The only way to make an intelligent assessment of whether you should cooperate is by consulting a lawyer before you talk to the police. There are no exceptions to this rule. Don't accept the invitation for coffee and donuts at the station.

2. When the police show up at my house, I have to talk to them right?

Wrong again. The normal conventions of polite society do not apply here. The police have not come to your home to trade notes on how your respective fantasy sports teams are doing. They are investigating a crime, and you may well be a suspect. It takes perishingly little to convict of certain crimes. Minor details you give them may be used as a means of corroborating a far-fetched story told about you by others.

This is common in child sex-abuse cases. Suppose your niece or nephew now claims you abused them a decade ago. You are rattled. Shocked. The police want to ask you about the relationship. Where you saw the child. What sorts of things you did together. Why you think the child is saying these things. All of these investigative leads can be turned against you to corroborate the fact that you did, indeed, have contact with the child at certain family events. Your assessment of the child's motives will be transformed into claims that you were deceptive.

Evidence that might truly assist you, e.g., the fact that the child has made similar false or exaggerated claims, background on family conflicts that provide the child with powerful motives to lie to assure that mommy and daddy remain together, united in crisis, and other such information can be provided to the police by your lawyer.

3. If the police don't read me my rights, they can't use anything I say, right?

Wrong, unless you are in custody. The so-called Miranda warnings have become part of American folklore. Unfortunately, many people get it wrong, thanks in no small measure to television. Police are only required to advise you of your right to remain silent if you are in custody. If you appear at the station voluntarily and they tell you that you are free to leave, you almost certainly are not in custody. In these cases, courts will regard your statement as voluntary, and, Mirandized or not, you will eat your own words at trial.

If you are unsure whether you are in custody or not, and believe me, figuring that out is no easy task, simply refuse to speak to the police. Once again, don't resort to normal, polite conversational gambits. "Maybe I should talk to a lawyer" is not clear enough to satisfy a court that you were serious about wanting a lawyer present. State the following: "I DO NOT WANT TO SPEAK TO YOU WITHOUT A LAWYER PRESENT." Print it out on a three-by-five card. If you really want to short the officer's circuits, ask him to sign the card, signifying that he gets it. (He won't sign.)

This may sound cynical, but it is a conclusion I've reached after many years of head-banging: the courts are increasingly reluctant to meaningfully enforce the rights of the accused. Ask any criminal lawyer about the serious crime exception to the Bill of Rights. Don't become a victim. Call a lawyer.

Police officers are trained in the art of deception. They know how to prey on fear and uncertainty. Whether you have committed a crime or not, odds are you will be putty in their hands. There are ways to get the information important to your defense into the hands of the police, but you are not equipped to do it without a lawyer.

I have said this to folks hundreds of times. Sadly, each week I get another call from someone who has given away some significant portion of their future by talking about things they would have been better served keeping to themselves.