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?