Defending Sex Crimes

Moving To A New Site

2010-09-26T13:40:00.001-04:00

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"

2010-08-03T18:48:00.000-04:00

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

2010-07-28T02:01:00.001-04:00

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

2010-07-27T07:18:00.002-04:00

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

2010-07-14T18:28:00.001-04:00

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

2010-07-05T08:28:00.000-04:00

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

2010-07-04T08:39:00.000-04:00

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

2010-07-03T08:44:00.001-04:00

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?

2010-06-27T14:42:00.002-04:00

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

2010-06-26T17:16:00.000-04:00

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

2010-06-24T18:36:00.000-04:00

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

2010-06-13T14:47:00.001-04:00

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

2010-05-23T13:17:00.002-04:00

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

2010-05-22T09:16:00.001-04:00

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?

2010-05-17T13:44:00.001-04:00

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

2010-05-17T08:20:00.001-04:00

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?

2010-05-16T15:43:00.000-04:00

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

2010-05-14T04:38:00.001-04:00

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

2010-05-07T08:22:00.003-04:00

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

2010-05-06T18:11:00.005-04:00

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

2010-05-04T15:23:00.000-04:00

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

2010-04-29T07:05:00.001-04:00

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

2010-04-26T17:31:00.001-04:00

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

2010-04-26T08:28:00.002-04:00

Read Jonathan Turley.

Is Tiger Woods A Sex Offender?

2010-04-24T19:56:00.003-04:00

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

2010-04-22T16:44:00.003-04:00

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

2010-04-20T23:11:00.002-04:00

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

2010-04-20T13:19:00.001-04:00

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.

Four Things You Need To Know If You Are Charged With A Sex Offense

2010-04-18T15:29:00.004-04:00

If you or a loved one are charged with a sex offense you are undoubtedly concerned about the prospect of imprisonment. But that is only one of the four discrete harms faced by any accused sex offender. There are three other harms that are as significant, and each should be discussed with your lawyer.

Sex offenses come in many forms, ranging from urinating in public, in some jurisdictions, to forcible rape. Unfortunately, all these various offenses are frequently lumped together. Programs designed for violent offenders are often indiscriminately required for anyone convicted of a sex offense.

Here are the four harms: imprisonment, a felony record, registration as a sex offender, and being required to undergo sex offender treatment as a condition of probation. Often, defendants are so terrified of imprisonment, they do not spend enough time focusing on the other harms that will befall them if they enter a plea or are convicted a trial.

Imprisonment. Nothing prevents a prosecutor from overcharging a case. We call this colloquially "throwing the book" at someone. Thus, for one event, a defendant can be charged with a series of crimes. Often the more serious charges carry mandatory minimum prison sentences. A person facing five years mandatory jail time might willingly, and gratefully, plead guilty to charges not including the mandatory minimum. Many a defendant has walked out of court with a suspended sentence when the state dropped a charge carrying a mandatory minimum only to face nightmarish terms and conditions of probation. Be sure you understand the factual basis supporting each charge. Ask your lawyer whether the state has overcharged in a way that violates your right to be free from double jeopardy. (The answer is almost always no, but you still need to check.)

Felony. A felony conviction is a potent bar to participation in many professions. It will also keep you from voting and from enjoying certain federal and state benefits. Most state penal codes are drafted in such a way that related offenses are graded on a scale of culpability, with first degree offenses being considered more serious than offenses in the second, third or fourth degree. There are sometimes misdemeanor offenses lurking at the low end of the culpability scale. Always press in pre-trial negotiations for the state to consider a plea to a misdemeanor in those cases in which you are willing to consider a plea. At trial, be sure to ask your lawyer to review with you any lesser included offenses that you might ask the judge to submit to a jury. Remember: the state almost always overcharges a case. Putting a lesser charge before the jury might well spare you a felony if you are convicted.

Sex Offender Registration. The law is particularly savage. Lawmakers are forever pressed into hysteria when a new sensational sex abuse case hits the newspaper. They adopt a one-size-fits-all strategy for classifying those convicted of an ever-widening array of crimes. A serial rapist is the same as a 17 year-old boy who made love to his minor girlfriend. Judges acknowledge the cruelty of these laws in private conversations, but few will do anything about it when it counts. Everyone is afraid of retribution at the polls or at their next retention hearing. Laws differ in both the state and federal courts about what offenses require registration and for how long. Many states also have law-enforcement only sites that are not disclosed to the public via the Internet. If you need to register, press your lawyer to get you on a non-public list for a limited period.

Sex Offender Treatment. This condition of probation catches many defendants by surprise. It is sometimes slipped in at the very last minute after a plea bargain when a judge requires compliance with "such conditions as probation deems necessary." A person facing such treatment can expect demeaning treatment by scarcely trained and often poorly education folks with the equivalent of undergraduate degrees. A probationer might be required to fill out a detailed questionnaire about their sexual history and fantasies. You might be required to admit things you never did or face prison. And then there are group treatment sessions in which Romeo sits cheek by jowl with Jack the Ripper. And don't try complaining to the court that all these conditions are unfair or are not what you bargained for. The courts are rarely receptive to such claims.

Sex offender cases are terrifying. Clients face enormous prison terms. The rules of evidence are stacked in favor of the complaining witnesses, with special rules of young alleged victims and limits on what can and cannot be said about the past of the person accusing you of a crime. And lawmakers show increasing willingness to extend statutes of limitations to the breaking point. Don't recall where you were 30 years ago? Who can? But an alleged victim can claim you touched her or him in ways the law prohibits.

The four harms facing all sex offenders need to be addressed promptly in any defense strategy. It may be that intelligent negotiations with the state can minimize these harms if you are willing to consider a plea to some offense. Of course, in cases in which a plea is out of the question, it still pays to keep your eye on these four harms. If you are unfortunate enough to be convicted, you'll want to avoid as many of them as possible.

Working With Children Is A Sex Offense

2010-04-18T10:33:00.000-04:00

Afraid to work with children because you might be accused of a crime? You're not alone. Read this excellent post by Mike Cernovich at Crime and Federalism.

Can Padilla Be Used In Sex Offense Cases?

2010-04-15T07:29:00.000-04:00

It was reassuring to see the United States Supreme Court chip away at the collateral consequences doctrine in Padilla v. Kentucky. By ruling that criminal defense counsel have an affirmative obligation to advise their clients about the immigration consequences of a plea, the Court moved one step closer to reality. Let’s hope it is not the last step.

Padilla entered a guilty plea in a Kentucy court. His lawyer told him not to worry about the immigration consequences of the plea. Padilla had, after all, been in the United States for 40 years. So Padilla pleaded guilty. And deportation proceedings promptly began. He was on a one way ticket out of the land of the free.

When Padilla claimed that his lawyer was ineffective within the meaning of the Sixth Amendment, the Kentucky courts turned a deaf ear. Counsel had properly advised the client about the criminal consequences of his plea; immigration was merely collateral to the criminal plea. The Supreme Court said otherwise.

Our courts sidestep justice all the time by regarding the foreseeable consequences of a criminal conviction as merely incidental. Thus, in the case of a sex offender, courts permit convictions to stand when lawyers fail to make adequate warnings about all sorts of things, including the demeaning and often standardless manner in which so-called sex offender treatment is administered.

Does Padilla offer hope that the Courts will take a broader view of the punishing collateral consequences of a guilty plea to a sex offense?

It seems suddenly as if sex is the new crack. Hardly a day goes by in my office in which a young man does not call accused of either fondling a child, looking at child pornography, playing Romeo to some willing Juliet, or otherwise engaging in some other act of sexual misconduct. A decade ago, the phone rang almost as often with folks accused of participating in the sale of crack cocaine.

Are we enduring a new moral panic?

I’m not sure just why the American public always seems to need some unifying demon to hate. At various points, we turned our rage on alcohol, people of color, Communists, and, now sex. Somehow a stark contrast between good and evil seems to satisfy in a way that beholding shades of gray does not. Are good Americans required to be Manicheans?

Anyone accused of a sex offense really faces four harms. In my view, good lawyering requires advising a client about them all, and then doing what can be done to minimize the harm to the client arising from each of these harms.

The first two harms are obvious: the disabling effect of a felony conviction and imprisonment. These are the classic consequences of a conviction that all lawyers know and understand, although, I suspect, there may be some confusion regarding mandatory minimum sentences as these sentences change with legislative tastes.

The requirement to register on a sex offender registry and the need to participate in sex offender treatment as a condition of any probation are a direct and proximate consequence of a plea in most states. In other words, utter the word "guilty" and these consequences flow as irrevocably as, well, immigration problems.

If there is now a Sixth Amendment requirement to advise defendants of the immigration consequences of a plea, it follows that rights to due process and equal protection, and against cruel and unusual punishment, ought to be enforced in some meaningful way as to the consequences of a plea. It simply isn’t good enough to permit Courts to pass off miscarriages of justice arising from sex offender pleas as merely incidental consequences of a guilty plea.

Padilla v. Kentucky is important not just for the protection it offers to immigrants accused of crimes. It is important also as a new tool that just might help to mitigate the gratuitous harm done to those convicted of sex offenses. In the current climate of moral panic, we are failing to distinguish minor offenders from serial rapists. The result is a criminal justice system dealing out draconian consequences without meaningful review. Padilla offers the hope of change.

Reprinted courtest of the Connecticut Law Tribune.

Snark Hunting In The Virtual Agora

2010-04-13T18:55:00.005-04:00

The New York Times reports today a trend among online news organizations. It seems the days of the anonymous commenter are rapidly coming to an end. It is a welcome development.

The Internet is a great tool for fostering discussion about all manner of things. I think of it as a virtual agora, a marketplace where citizens of all stripes can rub elbows, and egos, to discuss the issues of the day. But it is also more. Often the Internet is used as a playpen for the disturbed and for cowards.

My favorite story of Internet subterfuge involves Judge Shirley Strickland Saffold in Cleveland. She was posting hostile comments anonymously beneath news stories about a lawyer appearing before in The Plain Dealer of Cleveland. It what can only be referred to as the world's premiere case of brass ovaries, Judge Strickland is suing the newspaper for violating her privacy. The newspaper, you see, found out that the judge was playing Sneaky Shirley.

I have a couple of professional snarks who send me and others comments. What's more, I have a pretty good idea of who these folks are based on their comments. But here's the rub: You can't defend yourself against a phantom. Some people are simply content to piss and moan beneath a cloak of anonymity: It is the ultimate form of cowardice.

I stopped running anonymous comments a while back. I now require commenters to register. Lo and behold, registration yielded a cease in hostile traffic. Presumably, some folks still hate me, but their hatred is a gift they hide. In some cases I suspect that is because they simply don't want the full truth to be erred. It is easy to point a finger; harder to look into a mirror

So be it, I say. The Washington Post, The New York Times, and many other papers are moving toward a registration requirement.

“Anonymity is just the way things are done. It’s an accepted part of the Internet, but there’s no question that people hide behind anonymity to make vile or controversial comments,” said Arianna Huffington, a founder of The Huffington Post. “I feel that this is almost like an education process. As the rules of the road are changing and the Internet is growing up, the trend is away from anonymity.”

No one is chilled in the exercise of their First Amendment rights by requiring to own what they say. The trend toward requiring accountability is welcome, and does not in the least diminish the quality of debate online.

Illinois Reform Group Heads To Springfield

2010-04-12T14:03:00.002-04:00

The only way lawmakers will be forced to face the consequences of bad laws if is the people affected by those laws educated those in power. And that is precisely what will be taking place in Springfield, Illionois, on April 22, when a group of ordinary people seeking to reform sex offender laws will pay a visit to lawmakers.

Attached in a group produced to educate others about what's wrong with the current sex offender regime. I pass it along as an example of effective education and advocacy.

Press Release

A group of citizens from across Illinois will meet at the State Capital in
late April to voice their concerns with Illinois’ sex offender laws.

Current laws, as structured, are not keeping our children safe. They are,
in fact, costing the taxpayers millions of dollars to prosecute, monitor,
incarcerate, and severely punish many individuals who are of no danger
to children, society, or the communities in which they live. They believe
that laws which will truly benefit the safety of our children, and society
in general, must differentiate between those who are dangerous offenders
and those who are not.

“Our goal in Springfield is to advocate for research-based policies that
protect society, and especially children, as well as rehabilitate
perpetrators,” says Tonia Maloney, President of Illinois Voices.

“Emotionally charged reactions to sex crimes often lead to legislation that
is not driven by data or research, but rather by fear and outrage. Our
current sex offender laws are not addressing the true problem – how to
prevent new victims and how to monitor only those who are truly a threat
to society.”

Currently, residency restrictions and community-notification laws contain a myriad of non-violent offenders,including: teen consensual sex (with a few years difference in age), exposing genitals in public (even without realizing someone else is watching), teens posting nude or semi-nude photos of themselves on MySpace and other
social networking sites or texting them to others; parents taking innocent pictures of their children in the bathtub; and many more.

“Under the Adam Walsh Act, children as young as 14-years old will be placed on the Illinois Sex Offender Registry where all of their classmates will be able to see their photos right next to rapists, child molesters, and murderers.

We feel this is unfair to expose these kids to such harsh treatment,” points out Maloney. “Ohio is the only state that has implemented the Adam Walsh Act and the Ohio Supreme has ruled part of it unconstitutional. It will cost Illinois taxpayers over $21 million for the state to comply with the demands of the Federal Government. We would support this Act if there was evidence that it would reduce criminal sexual abuse and child murder. However, recent studies have indicated that over 95% of all sex crimes are committed by someone who is not a registered sex offender.” The Adam Walsh Act would also require most sex offenders to wear a GPS-monitoring device.
However, there are no studies available that show that GPS technology has reduced recidivism with regards to sex offenders.

Many legislators have privately admitted that these laws have gone far enough. Recently, state legislators passed a bill that would no longer allow prosecutors to criminalize teens for Sexting. Maloney further states, “We are hoping to encourage our policymakers to advocate for the most efficient and cost-effective implementation of laws based on risk-assessment procedures and differential trategies in accord with the level of threat that an offender poses to a community. There are sexually violent people in this world and those are the ones that law enforcement should be dedicating their time to, not the thousands of non-violent and even consensual offenders.”

For more information, contact:

Tonia Maloney
P.O. Box 4016
Fairview Heights, IL 62208
toniat@sbcglobal.net
Or visit: www.ilvoices.com.

Hartford Courant Weighs In On Sex Offenders

2010-04-09T08:27:00.003-04:00

The following editorial appeared in a recent edition of The Hartford Courant, the nation's oldest continuously published newspaper. It is a sign that good sense is infectious.

Hat Tip: JK

When the Adam Walsh Child Protection and Safety Act, a federal law aimed at sex offenders, was being debated in 2005, Florida Attorney General Charlie Christ said, "The experts tell us that someone who has molested a child will do it again and again." Others made the same point.

The law was passed and signed by President George W. Bush in 2006. The law attempts to expand the scope of sex offender registries at the state level as well as create a national sex offender registry. States were told to sign on or risk losing a small amount of grant money.

Last week, a bill that would have brought Connecticut in line with the Walsh Act was — wisely — allowed to die in committee.

The Walsh Act has been widely criticized on many fronts, for everything from including adolescents as young as 14 on the list to violating several provisions of the Constitution. Only one state, Ohio, has adopted it.

Laws such as the Walsh Act, often named for victims of crimes the law is trying to prevent, are of course well-intentioned. But they tend not to be based on research, and so do not achieve an optimal level of public safety. Indeed, they can unintentionally make things worse.

For example, if Connecticut officials followed the research, they would not expand the state's sex offender registry, but reduce it.

All states have sex offender registries to which residents have online access. Some states put offenders on their registries based on their risk to the community. Connecticut is one of the states that place people on the registry because they are convicted of a sex offense.

Many people assume everyone on the registry is either a rapist or pedophile. If that were so, the list would be much smaller. But it also includes an array of porn possessors, voyeurs and people who as older teenagers had consensual sex with an underage girlfriend or boyfriend. As a result, the state now has more than 5,000 people on the sex-offender registry, an increasingly unwieldy group for hard-pressed police departments to monitor.

Some on the list are dangerous and must be watched, but many are not. As the list is now presented, it's difficult to tell one from the other. They are listed by the crime they were convicted of committing, but it's not clear whether a conviction for "risk of injury" or "second-degree sexual assault" means the person is a danger to others. (The registry also misses people who pleaded to a lesser offense to stay off it.)

Why does the state list so many offenders? In part, as the Florida attorney general's testimony suggests, from the widespread belief that sex offenders are likely to re-offend, along with the notions that all sex offenders are alike and that they are not amenable to treatment.

The research contradicts all of these premises.

The Myth Of Incorrigibility
Sex offenders represent a cross-section, ranging from psychotics to a lot of seemingly normal people who have made a serious mistake. "They've all done something bad, but they don't all present the same level of risk," said David D'Amora, who directs the state's post-prison sex offender treatment programs for The Connection, a Middletown-based nonprofit.

Treatment works: It can reduce recidivism by as much as 40 percent, according to recent studies. "We have the lowest recidivism with the people we get through treatment, no question," said William Carbone, director of the Judicial Branch's Court Support Services Division.

Perhaps the most surprising research finding is that sex offenders as a group have among the lowest rates of recidivism of any category of criminal.

A major U.S. Bureau of Justice Statistics study of nearly 10,000 sex offenders released in 1994 found that only 5.3 percent had been arrested for a new sex crime in the ensuing three years. Other studies put the sex offender recidivism rate between 14 and 20 percent.

The major implication to be drawn from this data is that the great majority of sex crimes are committed by new criminals, people who have never been arrested for such an offense before. That strongly suggests that more resources should be shifted upstream, to education and prevention programs in date and dorm rape, domestic violence and similar behaviors. Just focusing on convicted sex offenders ignores the prevalence of sexual violence in the broader culture, which in part is producing sex offenders.

Shrink The Sex-Offender Registry

One way to capture resources would be to shrink the sex-offender registry so that it only lists former violent offenders who may still pose an appreciable risk to the public.

If the list is there to protect the public, it's not clear why nonviolent offenders should have to register at all. But if they do, they should not be on a list available to the public.

For low-risk offenders who have served their sentences, the additional burden of public humiliation can be devastatingly cruel. They need a home and a job, but when their presence on the sex offender registry becomes known, they not infrequently lose the house and job.

Sometimes they and their families suffer threats, harassment or physical harm, according to several studies. Some experts say the shame, isolation and depression that accompanies the public pillorying can trigger relapse.

Vermont limits public notification to individuals who pose a high risk to the community, as does Minnesota. New Jersey divides offenders into three tiers of risk, and the names on the low-risk tier are shared only with law enforcement agencies. That is the direction Connecticut should head.

In dealing with sex offenders, Connecticut officials are clearly doing some things right. There is treatment available in prison as well as close supervision, treatment and individualized case management, with appropriate restrictions, for those on parole and probation. This works. Of about 1,800 former sex offenders who have come off parole in the past six years, only a handful — fewer then 10 — have been rearrested for a sex crime, a state Department of Correction spokesman said.

Residency Restrictions

But the good work is often challenged by fear or flawed thinking.

Another bill proposed this year, and wisely allowed to die in committee, would have prohibited a registered sex offender from living within 2,000 feet of a school or day care center. Although residency restrictions may make sense in individual cases — and are sometimes imposed as conditions of probation — blanket residency restrictions do not.

They are fueled in part by the notion of "stranger danger," another myth that most child molesters are strangers, sinister perverts in trench coats lurking around the school playground. The research belies that stereotype and says the vast majority of child sexual abuse victims identify their abusers as family members or acquaintances. A Justice Department study in 2000 of police reports from 12 states found that only 7 percent of sexual assaults on children were perpetrated by strangers.

The data is similar for adult women victims: More than 70 percent of rapes and 85 percent of sexual assaults are carried out by people known to the victim.

This year, thanks to thoughtful leadership on the Judiciary Committee, the legislature resisted some laws that would have been easy "get-tough" targets, but not good policy. Next year, they have the chance to make things better.

Is Pope Benedict XVI Right?

2010-03-29T20:11:00.002-04:00

What if Pope Benedict XVI is right and doesn't have the courage to admit it publicly? The thought occurred to me the other day. By day, I counseled clients on the front line of the United States' war on sex. By night, I was tongue-clucking over a church too hard-headed and hard-hearted to do the right thing.

And then it occurred to me: The church may be right.

It is by now obvious that there are abusive priests in the church. And there are abusive fathers in our homes. There are abusive aunts, uncles, teachers, coaches. Why the world is filled with sexual abusers. It's enough to throw us into a panic, and so we do panic and fret.

Lawmakers belt out one harsh and over-broad law after another. Romeo's lovemaking nets him the scorn of a serial killer. We make those who are a risk of violent offense register and seek treatment with those who were merely curious in the wrong way and at the wrong time in their lives and in our nation's history. We want to lock people up and throw away the key. We call these offenders sick, deviant, beyong redemption, and so we punish them.

We are the sick and twisted ones. Our society is steeped in cheap and easy sensuality. Yet step out of line for a moment and you are labeled a deviant. Then comes scorn. What sane and humane society seeks to punish the ill? And why can't we as a society take broader responsibility for trapping a generation or more of young Americans in the vice of lust, one of the deadly sins?

The church is criticized for not doing enough with errant priests. Yet increasingly I read that the men, and they are almost all men, are isolated and sent for treatment and care away from press of daily life. That's not enough for the hypocritical Puritans in our midst: They want the priests in prison, and they want money damages for those abused. It is a sick and twisted cycle.

Perhaps, I say, the Pope is right.

Lust is a sin. Pedophilia is an illness. Prison is not confession; it expiates no sin, and rights nothing. Imprisoning the sick is what a sick society does. And justice does not require the ill to pay fines to those they harm.

Anger grows over a church perceived to be refusing to be held accountable. But I wonder whether that rage is misplaced, really. Did we really think we could make a profit stoking desire and that the demons of lust, once set free, would obey the rules. When do we take responsibility for what we have wrought?

I've seen good men destroyed by baseless allegations of sexual misconduct. I've seen purported victims, still children, coddled, and made into veritable rock stars by the court. Prosecutors strut and preen about accountability. Yet once the prison door slams, nothing has changed. The angry victim can now enjoy the cheap and easy drug of revenge, but this pill, once swallowed, poisons the soul.

I'm starting to admire the Pope. He doesn't owe the world an explanation for the sin in his church, any more than we owe him an explanation for the excess we court in the name of profit and free expression. When one of the pope's own errs, the church takes him in and offers to treat the wounded, even as it offers counsel to victims. How much better the pope and the church than we. When a citizen fails, we brand him for life and call him a monster. We seek to ruin him. And we call it justice.

There are, Augustine wrote long ago, two cities: the city of man and the city of God. I am a pagan, and do not know God. But I know that I respect the pope far more than those critics that think call for the church to shed compassion in the name of revenge.

A Letter To Barack Obama: Virginia, RSOL

2010-03-09T07:41:00.002-05:00

Dear President Obama:

When you took office you promised to give a voice to the voiceless. You spoke of the audacity of hope. You promised to include those often forgotten and despised. I am appealing to you honor those promises now.

This past weekend you appeared on a television show called America's Most Wanted. You met with the show's creator on national television and listened to him call for yet more laws designed to get tough on crime. As you know, John Walsh is a tireless advocate for crime victims. He lost his own son to murder decades ago.

Immediately after appearing on America's Most Wanted, you were contacted by a group called Virginia Reform Offender Laws. The group asked for a meeting to talk about a class of victims who have no media spokesperson and who garner little sympathy. Members of the group would like to sit down and discuss with you the other America, those stigmatized for life as a result of conduct that often wasn't even criminal a century ago. There are hundreds of thousands of Americans living in fear of the shadows cast by laws that fail to draw meaningful distinctions between those who are a risk of future harm and the overwhelming majority of folks who simply make mistakes.

John Walsh and America's Most Wanted are powerful tools in what is often an hysterical over-reaction to isolate acts of horror. When a young woman is abducted, raped and murdered by a stranger, the nation rightly grieves. But tapping that grief for purposes of stiffing moral panic poorly serves the nation. Many of us were surprised that you agreed to appear on a television show that panders in fear and unresolved rage.

Virginia's, Reform Sex Offender Laws cannot offer you a national forum. There is no television show dedicated to Americans forgotten and scorned by the criminal justice system. But these other Americans are organizing in each and every state in the union to educate lawmakers that the sex offender hysteria is destroying lives. Virginia's group is among the most sophisticated in the nation: In recent weeks, the group has provided lawmakers in Virgina with a recent publication about the weaknesses in our laws regarding sex offenses.

The other America still looks to you for leadership, Mr. President. When the Virginia group called the White House earlier in the week to request a meeting, a promise was made to convey the request and to get back to the group. I am urging you to take a little time to sit down with representatives and hear what they have to say. You can still make a difference for the voiceless folks looking to you for hope. Please do not scorn them. That is the easy and convenient response. But it is a response that fails to look beyond appearances.

Maine Citizen's For Change Presses Legislative Fight

2010-03-08T17:41:00.006-05:00

If you leave lawmakers alone and assign them the task of fixing a state's sex offender registry, odds are they will screw it up. So Maine Citizen's for Change decided to leave nothing to chance when the state's Supreme Court gave lawmakers until the end of this month to alter the state's sex offender laws.

The citizen's group is little more than one year old. But they are speaking with a voice that can be heard in Augusta. Members of the group have been using the telephone and email to lobby lawmakers.

Members of the legislature are up against a deadline set by the state's high court to address infirmities in the state's existing sex offender laws. The court held in Latalien that retroactive registration was, in fact, punitive and could constitute ex post facto punishment.

"The retroactive application of the lifetime registration requirement and quarterly in-person verification procedures of SORNA of 1999 to offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, without, at a minimum, affording those offenders any opportunity to ever be relieved of the duty as was permitted under those laws, is, by the clearest proof, punitive, and violates the Maine and United States Constitutions’ prohibitions against ex post facto laws. [¶64] Because the Legislature, in its upcoming session, may wish to consider revisions to SORNA of 1999 to address the registration of offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, we postpone the effective date of our mandate to March 31, 2010. See M.R. App. P. 14(c). State v. Letalien, 2009 ME 130 (emphasis added)."

Lawmakers are expected to vote tomorrow on a proposal to change the law to satisfy the court. Maine Citizens for Change is hoping that lawmakers will provide reform that takes into account the individual characteristics of a registrant.

For further information about how to get involved in Maine contact:

Jane M Cantral
State Coordinator
Maine Citizens For Change
http://mecfc.blogspot.com
http://mecfc.org
207-615-8385

Virginia Leading The Way

2010-03-08T08:01:00.002-05:00

I have not yet read Dr. Richard Wright's Sex Offender Laws: Failed Policies, New Directions. But I ordered a copy yesterday. If I were a lawmaker in Virginia or a member of U.S. House Judiciary Committee, I would have a copy given to me gratis. A Virginia advocacy group has made its mission the education of lawmakers and has either hand-delivered of mailed copies of the book to lawmakers.

The Virginia groups is called, simply enough, Reform Sex Offender Laws, or RSOL. It is one of a series of statewide organizations united under that banner. This latest lawmaker education campaign is a stroke of genius that should be replicated elsewhere.

Virginia lawmakers are this term neck-deep in proposed legislation regarding sex offenders. Among the bills being considered are calls for civil commitment, new laws against sexting, legislation to ensure compliance with tht federal Adam Walsh Act, and other measures. Typically, there is little debate about passage of such bills. Proponents promise to get tough on crime, hitch their proposal to the latest sensation news story they can find, and then date someone to oppose measures designed to keep the streets safe for little children. It is no wonder in such a climate that the laws regarding sex offenders have become an unintelligible mess.

Virginia RSOL is doing something about it. It is working to educate lawmakers about the consequences of passing laws without worrying about the consequences. Other states should consider following suit.

Here is a list of Virgnia lawmakers who received a free copy of Dr. Wright's book. I suggest follow up emails to these offices to determine what lawmakers thought of the book. I fear an absence of pressure will result in their ignoring the book. We all know the truth of the old aphorism: "You can elect a lawmakers to the statehouse, but you can't make 'em think."

House Courts of Justice Committee

Chairman: David B. Albo R DelDAlbo@house.Virginia.gov VCC

Vice Chair: Clifford L. Athey Jr. * R DelCAthey@house.Virginia.gov

Ward L. Armstrong D DelWArmstrong@house.Virginia.gov VCC

(Minority Leader)

William K. Barlow * D DelWBarlow@house.Virginia.gov

Robert B. Bell R DelRBell@house.Virginia.gov VCC

William Cleaveland * R DelWCleaveland@house.Virginia.gov

Benjamin L. Cline * R DelBCline@house.Virginia.gov

C. Todd Gilbert * R DelTGilbert@house.Virginia.gov VCSC

H. Morgan Griffith * R DelMGriffith@house.Virginia.gov

(Majority Leader)

Charniele L. Herring D DelCHerring@house.Virginia.gov

Patrick A. Hope D DelP Hope@house.virginia.gov

Salvatore R. Iaquinto R DelSIaquinto@house.Virginia.gov

William R. Janis R DelBJanis@house.Virginia.gov

Joseph P. Johnson Jr. D DelJJohnson@house.Virginia.gov

Terry G. Kilgore R DelTKilgore@house.Virginia.gov VCC

G. Manoli Loupassi R DelMLoupassi@house.Virginia.gov

Jennifer L. McClellan D DelJMcClellan@house.Virginia.gov

Jackson H. Miller R DelJMiller@house.Virginia.gov

Christopher Kilian Peace R DelCPeace@house.Virginia.gov

David J. Toscano D DelDToscano@house.Virginia.gov

Ron A. Villanueva R DelRVillanueva@house.Virginia.gov

Vivian E. Watts D DelVWatts@house.Virginia.gov

* On Both House Committees

VCC = On Virginia Crime Commission and received their book on December 15, 2009

VCSC= On Virginia Criminal Sentencing Commission

House Militia Police and Public Safety Committee

Chairman: Beverly J. Sherwood R DelBSherwood@house.Virginia.gov VCC

Vice Chair: Thomas C. Wright Jr. R DelTWright@house.Virginia.gov

Clifford L. Athey Jr. * R DelCAthey@house.Virginia.gov

William K. Barlow * D DelWBarlow@house.Virginia.gov

Charles W. Carrico Sr. R DelCCarrico@house.Virginia.gov

William Cleaveland * R DelWCleaveland@house.Virginia.gov

Benjamin L. Cline * R DelBCline@house.Virginia.gov

John A. Cox R DelJCox@house.Virginia.gov

James E. Edmunds R DelJEdmunds@house.Virginia.gov

C. Todd Gilbert * R DelTGilbert@house.Virginia.gov VCSC

H. Morgan Griffith * R DelMGriffith@house.Virginia.gov

(Majority Leader)

Matthew James D DelMJames@house.Virginia.gov

Mark L. Keam D DelMKeam@house.Virginia.gov

Lynwood W. Lewis Jr. D DelLLewis@house.Virginia.gov

L. Scott Lingamfelter R DelSLingamfelter@house.Virginia.gov

Donald W. Merricks R DelDMerricks@house.Virginia.gov

Paula J. Miller D DelPMiller@house.Virginia.gov

James W. Morefield R DelJMorefield@house.Virginia.gov

David A. Nutter R DelDNutter@house.Virginia.gov

James M. Scott D DelJScott@house.Virginia.gov

James M. Shuler D DelJShuler@house.Virginia.gov

Roslyn C. Tyler D DelRTyler@house.Virginia.gov

* = On Both House Committees

VCC = On Virginia Crime Commission and received their book on December 15, 2009

VCSC= On Virginia Criminal Sentencing Commission

Senate Courts of Justice Committee

Chairman: Henry L. Marsh III D district16@senate.Virginia.gov VCC &VCSC

R. Creigh Deeds D district25@senate.Virginia.gov

John S. Edwards D district21@senate.Virginia.gov

Janet D. Howell D district32@senate.Virginia.gov VCC

Robert Hurt R district19@senate.Virginia.gov

L. Louise Lucas D district18@senate.Virginia.gov

Ryan T. McDougle R district04@senate.Virginia.gov

Ralph S. Northam D district06@senate.Virginia.gov

Mark D. Obenshain R district26@senate.Virginia.gov

Toddy Puller D district36@senate.Virginia.gov

Fredrick M. Quayle R district13@senate.Virginia.gov

William Roscoe Reynolds D district20@senate.Virginia.gov

Richard L. Saslaw D district35@senate.Virginia.gov

Open Seat (was Cuccinelli)

Open Seat (was Stolle)

VCC = On Virginia Crime Commission and received their book on December 15, 2009

Obama On "Most Wanted"? Ugh

2010-03-07T16:35:00.005-05:00

Please tell me it's not true. Tell me President Obama did not appear on the 1000th edition of America's Most Wanted. Tell me he did not succumb to the fear-mongering hysteria that seeks to transform worst-cases scenarios into norms of public policy.

But it is true. The president sat for an interview with one of the angriest and most self-righteous men in the United States, John Walsh. He's the father of Adam Walsh, a little boy abducted and murdered several decades ago. Since then, we've all felt the pain of the Walsh family.

Is it only in America that we transform those undone by grief into celebrities?

Walsh is a hero to many Americans. His son was abducted and killed by a stranger. Because this should never have happened, Walsh wants to make sure it never happens again. He's been instrumental in playing to the moral panic that has made our nation's over-inclusive and draconian sex offender laws the target of international criticism. Human Rights Watch has taken note; last summer the Economist carried a front page story of our war against the very forms of desire we stoke with advertising and a culture drenched in cheap, easy and vulgar sensuality.

President Obama's decision to appear on America's Most Wanted was not the reasoned and measured response of a commander in chief committed to rule of reason. Obama sat with Walsh and was lectured by the talk-show host about the need to take DNA samples of every person accused of a felony. The president listened to a man who has lent his son's name to controversial federal legislation that has been declared unconstitutional in some federal courts and is destined for a Supreme Court challenge. What was Obama trying to accomplish with this appearance?

Obama promised change. But it's looking more and more like the same old stuff. Pandering to fear to keep the plebeians at bay; bailing out those too big to fail to keep the elite fat and sassy; promising to close Guantanamo, but now folding in the face of those critics who want men tried in secret. It's looking more and more like the same old stuff in D.C.

Check Out Sexcrimes Blog

2010-02-28T11:36:00.002-05:00

http://www.sexcrimes.typepad.com/

Shame On Lake Michigan College

2010-02-28T11:34:00.005-05:00

An educated person is one capable of drawing distinctions. The goal is something akin to wisdom, or at the very least, mastery of the art of learning. But those skills are not apparently valued at Lake Michigan College. Hysteria will do there, and unreasoning moral panic.

LMC president Robert Harrison told the press recently that a new rule is about to be promulgated on the campus: sex offenders need not apply. The college intends on adopting a blanket prohibition against permitting any enrolled sex offender to step foot on the campus.

I wonder whether the campus police intend on interviewing faculty members to see whether there are unknown offenders on staff. Odds are, there are at least a few folks who had sex with a minor in the hazy and steamy days of their youth. And I suspect there are more than a few folks who touched places they ought not to have toucvhed. And what of urination in public? That's a sex offense, too, at least in some jurisdictions.

Apparently, the dead of students at the college just discovered that three undergraduates were registered sex offenders. The press does not report the underlying offenses of conviction. But the mere sound of it is chilling enough for the hysteria mongers at LMC.

Harrison says that the college has not yet decided if such a policy violates state and federal law. The college Board of Trustees is likely to consider adopting an official policy soon.

What a pitiable example of why our sex offender policies are haywire. Three young men, and they are certain to be men, are at the campus trying to get an education. Sure, they've erred. But they are on the road to rehabilitation. The blue noses at LMC don't see it that way, however.

Somehow, I doubt that this is an example of the "New Way of Thinking," the Benton Harbor, Michigan college hypes on its website. It looks like the same old hysteria to me.

Connecticut Poised To Eliminate Limitations On Sex Claims

2010-02-27T13:55:00.004-05:00

Connecticut's nickname is the Land of Steady Habits. Perhaps its time to change the moniker. The State is poised to jump feet first into the front ranks of the lunatic fringe.

Legislation proposed by two central state Democrats would eliminate any statute of limitations for the filing of civil suits alleging sexual misconduct. It's not as though the state has a tight limitations period under the current regime. An alleged victim has until they are 48 years old to bring a claim of childhood sexual abuse.

State Sen. Mary Ann Handley, D-Manchester, and state Rep. Beth Bye, D-West Hartford, don't think that's long enough. They want an alleged victim to be able to bring a claim at any time.

"It's a very lonely kind of abuse," Handley said. "It's a kind of abuse that people try to forget, try to ignore."

Such long statutes of limitation are an invitation to injustice. Don't recall what you were doing ten, twenty or thirty years ago? Let your niece or nephew, together with a bevy of so-called experts on delayed disclosure, incremental disclosure and recovered memories help you recall.

I recently tried a criminal case in which the alleged victim claimed to have been abused ten years before the trial. There was no physical evidence to corroborate her claim. While the case was pending, the accusations cascades from mere touching to cunnilingus. By the time of trial, experts were on hand to explain why it was all so perfectly plausible that the memories were late in taking shape. Of course, the jury was kept from hearing information about the sexually charged atmosphere in which the child was reared -- her father was barred from the home for a time to got to a sex addiction center.

Statutes of limitation serve important purposes. We expect claims to be raised in a timely fashion or not to be raised at all. People have lives to lead beyond the trauma they suffer. And defendants have rights, too. It simply doesn't square with justice to haul someone into court thirty years after the alleged facts and have them give an account of themselves. How do you defend if you have absolutely no idea what the so-called victim is talking about?

Handley and Bye are dead wrong. They're body-suffering in the wake of sex offender hysteria. Lawmakers ought to be narrowing, and not expanding, the manner in which ordinary folks are plucked from their lives and dumped unceremoniously into legal catastrophe.

Here's legislation much needed:

o No person claims to have been sexually abused ought to be permitted to raise a claim beyond a five year statute of limitation unless there is either another witness or physical corroboration of the claim. To do otherwise is to throw open the courthouse doors to folks seeking all sorts of secondary gain from their claims. (I once read a letter seeking admission to a college from a person claiming to have been abused years earlier. It remains unclear what scholarly acumen that portends.)

o Rape shield laws ought to be relaxed in cases in which plaintiffs or victims bring claims beyond a five-year statute of limitations. Clearly, a person who wants to claim the trauma of an ancient event has been marked by many experiences. Let the jury determine whether the testimony offered is fact or a fanciful accretion of a lifetime of hurt.

o If a party seeks to rely on recovered memory or incremental disclosure testimony, the evidence code ought to be amended to permit liberal admissibility of other sources of sexual tension in a victim's home. It is wrong to permit a jury to hear only the memories a victim claims to have recovered, but not other sources of sexual tension and shame that could well remain buried at the time of trial but to which it is reasonable to believe the child was exposed.

The law of sex offenses is a mess. We are in love with every claim of victimhood, but blind to the new class of victims created daily in our courts. Who speaks for those accused based on little more than fantasy? What protections do these men and women enjoy?

18 Percent Of Teens Are Sex Offenders?

2010-02-21T13:28:00.003-05:00

The Pew Research Center's Internet & American Life Project reports that 18 percent of 800 youths aged 14-17 with cellphones reported receiving "sexually suggestive" nude or semi-nude images of someone they know. I suspect the number understates the extent of sexually charged horseplay on cell phones among the nation's youth. But tell me, truly, do you really think each and everyone of these kids is a criminal, or even a sex offender?

Sending a sexually suggestive picture of a minor over the Internet is a crime. The practice of sexting can land you in a federal prison. It can also put you behind state bars. And because sexting is a sex offense, you'll be required to register as a sex offender.

Oh, what I tangled web we are weaving with these silly laws.

My home state, Connecticut, is is guilty of this silliness as the next. But there is a ray of hope on the horizon. In the current session of the General Assembly, lawmakers have proposed legislation to transform sexting from a felony to a class A misdemeanor. It is a small step in a journey that really should end with decriminalization of curiosity and adolescent tomfoolery.
sex-offender registry.

Two Republican lawmakers from Naugatuck are pressing for a law lessen the penalty for sexting between consenting children. State Reps. Rosa Rebimbas and David Labriola propose the measure. Labriola is also a practicing lawyer and a regular in the Brass Valley criminal courts. I am heartened to see him proposing much needed legislation to dampen the hysteria associated with claims of sexual misconduct. The Legislature's Judiciary Committee plans a hearing on the proposal later this term.

It's hard to say where law enforcement stands on the issue. West Hartford Police Chief James Strillacci, speaking for the Connecticut Police Chiefs Association, said officers use their discretion in dealing with sexting. Officers are trying to protect children from the unforeseen consequences of their actions, he said.

But it is small comfort to leave discretion about whether to charge a crime, whether felony or misdemeanor, in the hands of a cop. What such discretion typically means is that the cop's kids and his friends get a pass. Those who are unpopular or unconnected stand a greater chance of falling on the wrong side of police discretion.

I don't want to look a gift horse in the mouth, but why stop at lessening the penalties associated with sexting between consenting minors. Why not decriminalize it altoghter. It shouldn't be a crime to be be curious.

Toddler Seized: "Incipient Sex Offender"

2010-02-14T16:27:00.003-05:00

Glassdale, Idaho -- Margaret Shipley is fighting state officials for the return of her son. She does not deny that he touched his privates in public. Indeed, she admits he was most likely masturbating. But, she points out, Rayford Shipley is only twenty-six months old. Why, she asks, did child welfare workers take the child into custody under Idaho's new "incipent sex offender" law?

Idaho law permits state officials to seize a child in immanent risk of harm. A new law that just went into effect on January 1, 2010, adds a new harm to be avoided: incipient sex offenses. The statute requires a child to be placed in a foster home if there is overwhelming evidence that the child is raised in a lewd and lascivious environment.

In Rayford's case, a worker at the local A&P market saw the toddler sitting strapped into a child restrain seat. "I thought the boy was playing with a toy," Penelope Trugood told state workers. "Imagine my shock when I saw he was playing with himself. He had such an evil little grin."

The seizure of Rayford has some activists crying foul.

"This is not what lawmakers had in mind, " Ms. Shipley protests. "My son is not a sex offender."

The head of Idaho's new task force on child sex offenses, Ronald McSweeney, is unpersuaded. "The young man was playing with himself in public. He was on the slippery slope toward pedophilia. The state has an interested in preventing deviancy no matter what the age of the deviant."

Under the new law, Rayford's school records will henceforth reflect his designation as an ISO, or incipient sex offender. School officials are encouraged to adopt a zero tolerance policy to all potential acts of deviance. If Rayford can avoid further incidents of sex crimes, he will be able to petition the court to have his name stricked from any list of sex offenders at age 18.

"I do not see the wisdom of this law," Ms. Shipley states. "Rayford is just learning to talk, and already the state has labelled him a sex offender? When did innocent curiosity become a crime?"

There will he a hearing next week to determine whether Ms. Shipley can take her son home again. To prevail, she must demonstrate a treatment plan that addresses the risk of recidivism. The state is offering her the use of a shock belt that will startled the child should his hands wander again. The device is controversial, however, and has not yet been approved by federal regulators.

"This is a nightmare," Ms. Shipley said. "I feel as though I am living in a science fiction film."

Editor's Note: If you fell for this hoax that's because you, too, believe it is only a matter of time until nonsense such as this becomes the fodder of daily news.

Sexting A Sex Offense

2010-02-01T07:47:00.002-05:00

Three Washington State teenagers have been charged with sexting, sending nude photographs of themselves to one another using the Internet. If convicted, the three will be added to the legions of those required to pose as a sex offender. Since when is curiosity a crime? And do we really need to stigmatize the children for life to feel safe.

Reprinted from the King 5 website:

by KYLE MOORE / KING 5 News

Posted on January 29, 2010 at 6:57 PM

******

LACEY, Wash. - Thurston County Prosecutors charged three teenagers Friday with Class C felonies for allegedly texting a naked picture of an underage girl.

Earlier this week authorities confiscated nine cell phones with the "sexted" picture on it. Lacey police say it all started when a 14-year-old girl took an explicit photo of herself and sent it to her 14-year-old boyfriend. When the relationship ended badly, that is when police say the now ex-boyfriend started to forward the picture to others.

Prosecutors say the pictures can be considered child pornography. If convicted of the felonies, the students would be required to register as sex offenders. Wayne Graham is a juvenile deputy prosecuting attorney and warns teens they need to "think before they hit send on their phone. Once they hit send they are no longer in control who views a very private or intimate photo."

The North Thurston School district is using this case as a educational opportunity. When news of the "sexting" scandal broke, middle school teachers held a lecture to warn kids about the dangers of sending graphic photos out into cyberspace. School spokesperson Courtney Schrieve says,"I don't think young people today think about when they press send. It's going global. It's out there forever."

The school is planning to hand out flyers to students and parents to warn them about the "sexting" trend. Thursday, school officials called every middle school family to tell them about the "sexting" case.

Grandparent Trish Arehart got the call and says she had not heard of "sexting." She immediately "went through everything " in her grandson's phone. She also warned the 13-year-old about sending bad pictures out.

"I told him this can get you into trouble. I said girls that send you pictures like that are not girls you want to be with," she said.

Ten Years Later And Still On The List

2010-01-31T16:27:00.001-05:00

In the past couple of weeks I have received several calls from folks who wondered why the State of Connecticut has not taken the initiative to remove them from the state's sex offender registry. It appears as if the state will not take the initiative in removing folks from the list. Will litigation be necessary to force the state's hand?

Connecticut General Statutes Section 54-254 requires that a person convicted of a felony that the court finds was committed for a sexual purpose to register as a sex offender with the Department of Public Safety. The registration is to take place for a period of ten years.

Callers wonder why, once their ten year stint on the list has passed, they are still listed for all the world to see. Doesn't the state have an obligation to remove their names? The callers are afraid to contact the Department of Public Safety for fear that they will stir a hornet's nest.

I've advised several folks to write to the department to request removal. I don't know if they will. But it seems to me that if there is a pervasive pattern of the department's failing to remove these folks' names once their ten year registration period has passed then the department is breaking the law.

Perhaps it will take a class action suit to force the department's hand. Or perhaps someone will pass this along to the Department of Public Safety with a simple request: Please follow the law you are entrusted to enforce. Here's a link to the department: http://www.communitynotification.com/cap_office_disclaimer.php?office=54567

Jumping Ugly In Virginia

2010-01-18T13:21:00.004-05:00

Virginia lawmakers are on the cusp of making a big mistake: They are about to make the restrictions imposed on all persons convicted of sex offenses even more stringent.

In theory, it all sounds like a great idea. Protect our children from risk. Who could oppose the concept? But the devil is in the details.

House Bill 1004 wants to eliminate the distinction between serious and non-serious sex offenses and require anyone who has committed an offense against a minor, whether it be violent or non-violent, a felony or a misdemeanor, to refrain from living within 500 feet of a child. Under this bill, even ancient convictions could evoke the residency restrictions.

The law not only expands the scope of observe the residency restriction, it also adds a series of new locations that offenders cannot live near. Included in the new bill are bus stops, community centers, recreation centers, public parks, playgrounds and community swimming pools. The current law only includes schools and day care facilities.

The new law will be effective immediately. Anyone living within 500 feet of the designated locations will be required to move immediately.

This is an example of the sort of overbroad and unthinking legislation produced by hysteria. By painting all folks convicted of any crime against a minor with such a broad brush, it refuses to recognize that many sex offenders pose no risk to the community. The bill stigmatizes without discriminating and is virtually guaranteed to yield more prosecutions and more homelessness.

Send a copy of this post to: Clifford Athey, DelCAthey@house.virginia.gov to register your protest.

Hat Tip: Commenter for pointing us in right direction regarding email protests.

A Little Freedom For Love?

2010-01-09T15:46:00.003-05:00

From United States v. Reeves, decided last week by the Second Circuit:

"This appeal requires us to consider the validity of a condition of supervised release [following a prison term for possessing child pornography] that obligated Reeves, upon entry into a “significant romantic relationship,” to notify the United States Probation Department and to inform the other party to the relationship of his conviction. We conclude that the condition is unduly vague and not “reasonably necessary” to achieve the objectives of 18 U.S.C. § 3553(a)(2)....

"We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a “significant romantic relationship.” What makes a relationship “romantic,” let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be “significant.” The history of romance is replete with precisely these blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989); He’s Just Not That Into You (Flower Films 2009)."

Hat Tip: Simple Justice

Satire Anyone? Check Out Badflasher.com

2010-01-05T01:09:00.004-05:00

Victories in the war on sexophrenic hysteria are few and far between. The fight, however, is eternal. Those of you in need for a little satire to lighten the load are encourage to check out the following web site: www.badflasher.com.

Warning: The material posted there isn't for everyone. You need humor, mature sensitbilities, and ability to understand that not everything that goes bump in the night is a monster. In sum, you need enough spirit to laugh amid the tears.

A foretaste? How about a post that carries the following headline? "There isn't enough bloodin the humanbody for a man to have an erection and think straight at the same time?" I wonder if that means the goofballs enacting wave after wage of legislation regarding so-called sex-offensives have erections. Certainly, they aren't thinking straight.

Haat tip: GB

Stu Dornan: Good Lawyer In Omaha

2010-01-03T13:56:00.002-05:00

If you are looking for a lawyer with common sense in Nebraska, try knocking on Stu Dornan's door. He just scored a temporary victory in the on-going battle against sex-offender hysteria.

Nebraska lawmakers want each and every so-called sex offender in the state, regardless of the offense of conviction, to register in an on-line data base. Presumably, that is so the good folks in the Cornhusker state can determine whether they are living next door to a predator. The problem with the Nebraska law is that if fails to draw the elementary distinction between those folks who pose a risk and those who do not.

I am willing to bet there are thousands of people in Nebraska who would, if truth be know, be designated as sex offenders if the truth about their youth were known. That is because Nebraska law, like the law of, I suspect, every other state requires folks to register for statutory rape.

Let us begin with fundamentals: Most often statutory rape is not really rape at all. A minor below the age of consent typically consents to sexual contact with a person a few years old. That is statutory rape. It is not a violent assault of one stranger upon another. Calling this rape is calling Juliet a victim, and Romeo a felon. It's silly, destructive and wholly at variance with our history. It was not until the late nineteenth century that many states raised the age of consent from 10 or 11 years of age to 15 or 16. This was done in response to pressure from the Women's Temperance Union, a group of progressives who sought to protect young girls from victimization as they flocked from farm to city in search of work.

Such laws made sense at the time, and something like these laws make sense now. Young girls should not be victimized. But do we really mean to classify young lovers as sexual predators? Do they belong in the same category as violent rapists? Of course not. Many Americans are sexually active before the age of consent. That does not make them criminals. Even in Nebraska.

But the climate of hysteria prevalent across the nation when it comes to sex offenses has gripped Nebraska. No matter what the underlying facts, a sex offender is dangerous. Period. Require all of them to register, regardless of the consequences.

Attorney Stu Dornan had the sense to see through this charade. He filed papers in Sarpy County District Court challenging whether a law that fails to draw obvious distinctions between dangerous and benign acts makes sense. District Judge William Zastera issued a temporary order barring the state from enforcing it. The claims will be litigated this week.

“We’re very pleased with the judge’s order,’’ said Stu Dornan, an Omaha attorney who has been challenging the law. “We’ll be able to litigate this further.’’

U.S. District Court Judge Richard Kopf had a chance last week to do some good as a jurist when the issue was brought to his court. But he tucked his tail beneath his robe and ran simpering to the back of the bandwagon supporting sex offense hysteria. He denied a request for similar relief, this one also filed by Attorney Dornan.

“You dilute the whole purpose of the registry by lumping everyone together,’’ Dornan said. He's right. Place a genuine threat in the same pool with one thousand other folks, and the threat is lost.

I like Dornan's pluck, and I wish him well this week. Hopefully Judge Zastera will show a little more sense that Judge Kopf.

Dornan is a former FBI special agent, and has been practicing law for 17 years. He is definitely one of the good guys. Folks in need of Omaha counsel should not hesitate in contacting him. Here is his telephone number: 402-884-7044

Judge Richard Kopf's Road To Hell

2010-01-02T11:44:00.006-05:00

I was inclined to greet news that a Nebraska federal judge issued an order enjoining the state from enforcing part of its new sex offender law with good cheer. "Finally," I thought, "a judge with the sense to see through the madness of these new laws." But then I read the decision, and I am now inclined to view United States District Court Judge Richard Kopf's decision as yet another road to Hell. This one is not even paved with good intentions.

The plaintiffs sought to bar Nebraska from enforcing harsh new requirements for the registration and monitoring of so-called sex offenders. State lawmakers approved new legislation to go into effect on January 1, 2010, as a means of retaining federal funding under the so-called Adam Walsh Child Protection and Safety Act of 2006, codified at 42 U.S.C. Section 16912. The act, known as SORNA to insiders, aspires to create a new national sex offender registry.

Nebraska did what all good states do when the feds threaten to turn off the spigot of free cash: it amended its laws to please federal paymasters. There's nothing unlawful about this, mind you. Constitutional lawyers don't regard this as the assertion of a federal police power, a notion anathema to the very concept of federalism. No, we maintain the police fiction that cash-strapped states are free to say no to generous federal funding: States that don't want to eat Uncle Sam's carrots are free to walk away.

But Nebraska did more than SORNA required. The state also enacted requirements not found in SORNA: namely, it required sex offenders who are not on parole or probation to sign consent forms permitting the state to search and seize their personal computers at will. It also barred non-supervised registrants from participating on social networking sites on which minors might appear.

The plaintiffs in the Nebraska action, who include the mother of a so-called offender, and an attorney who employs a so-called offender, sought to enjoin Nebraska from enforcing the law, and they filed papers in mid-December to block enforcement. On December 30, Judge Kopf issued an order upholding all aspects of the new Nebraska law except the provisions requiring unsupervised registrants to consent to searches of their computers and the barring them from participating on social networking sites.

The thinking goes something like this: Once an offender is not on probation or parole, he is free, and therefore the state cannot resitrict his Fourth Amendment right to be free from unreasonable searches and seizures. Neither can the state impede the right to free association and speech. I have news for you: Those rights will evaporate for sex offenders unless something changes.

Judge Kopf's decision is troubling for those who care about civil liberties.

The federal courts have long since concluded that registration is not punishment, a view that only a life-time appointee who must never look for a job, seek a place to live or worry about random knocks on the door by vigilantes can maintain. This repulsive abandonment of reason justifies registration by saying it is a mere regulatory requirement incident to conviction of certain offenses. Thus, it violates no constitutional right to be required to register, even without a particularized showing of harm. Let's just round up this new class of niggers and put them on a libidinal plantation.

Judge Kopf notes this line of cases and then concludes, somewhat paradoxically, that it is all right to require registration, a mere incident to conviction, but it is not all right to require registrants also to consent to random searches or stay off social networking sites. Don't get me wrong, I am relieved to see this constitutional line drawn. But my sense of the current climate of hysteria among lawmakers and judges is that this constitutional line will also be erased: what's a few random searches in the name of public safety if the folks were searching are already on the registry? And do we really want Uncle Ernie fiddling about on Facebook? You know the answer in terms of popular prejudice; it won't take long for the simpering class on the bench to fall into line.

And Judge Kopf is a cheerleader for the simpering class.

"In a democracy," he writes, "we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, '[i]f the people want to go to Hell, I will help them. It's my job.' Let's get at it."

It does not help that Judge Kopf cites Oliver Wendell Holmes for this eviscerated vision of a federal judge's role. Sure, the judge is literate, but to what end: cowardice? May I remind Judge Kolb that the judiciary is independent for a reason, and that the Bill of Rights was also enacted for a reason: Those reasons are common, Judge. To place certain things off bounds when lawmakers are moved by passion: that is what we refer to by the notion of checks and balances. Your job, Judge, is not to hide behind a black robe and then lose yourself in the bellowing mass of idiocy any legislative body can conceive in the dark of night. We expect more of a federal judge that passing the buck.

The Nebraska decision is a disgrace: A federal judge dancing glibly to Hell, and then all but laughing about it. Sad. Tragic. And worse, a sign of things to come. Reading between the lines, the judge is really sending a signal to Congress: Amend SORNA to do whatever you like, because, in the end, I will lack the courage to do anything at all to protect the rights of our new pariahs!

Hysteria 101

2009-12-30T07:54:00.002-05:00

"When planning a purchase to buy or build a new home, the first place a parent needs to research is the registered sex offender registry site provided by the government. It is free. The following link will show you detailed information on sex offenders who reside in your neighborhood. Be sure to check this site monthly. See http://www.familywatchdog.us/"

Wow. When my kids were young and we were on the market for a home, the first thing we researched was the school system. But we hadn't made a vocation of hysteria. Times have changed. Read more here: http://timesupblog.blogspot.com/2009/12/tragic-loss-of-sarah-haley-foxwell.html

"Fiddle About" at the Super Bowl?

2009-12-29T11:23:00.005-05:00

If there is a God, and if that God has a wicked sense of humor, the following lyrics will be sung at this year's half-time performance at the Super Bowl.

"I'm your wicked Uncle Ernie
I'm glad you won't see or hear me
As I fiddle about ....

"Your mother left me here to mind you
Now I'm doing what I want to
As I fiddle about ....

"Down with the bedclothes
Up with the nightshirt....

"You won't shout as I fiddle about."

The lyrics come from a song named, appropriately enough, "Fiddle About." The song is part of a rock opera called Tommy, performed by The Who, who have, as you have no doubt heard by now, been invited to perform at the half-time show in this year's Super Bowl.

Only there is a hitch. Pete Townsend, guitarist and chief song writer for the Who, was required for a time to register as a sex offender in Great Britain. It turns out that he once accessed child pornography. And although he is now off the the British sex offender registry, Florida law -- the Super Bowl will be played in Miami this year -- requires that he present himself to law enforcement to register upon arrival in the Sunshine State.

Townsend was convicted of accessing a child porn site in 2003. He claims he was viewing material for research. From 2003 to 2008 he was registered as a sex offender in Britain. In Florida, he is still regarded as such.

Child Abuse Watch and Protect Our Children are raising Hell with the NFL, the state of Florida and the Immigration and Naturalization Service, and anyone else who will listen. How was a pervert permitted entry to the US? Shouldn't Florida take Townsend into custody immediately upon his entry into the state? How could the NFL so undermine family values?

This is all hysterical gibberish. Even if Townsend looked at some pictures, it does not make him a danger. The law prohibits viewing these pictures for two reasons: first, the fear that viewing them encourages a market for new images, thereby placing children at risk; and, second, the fear, unproven, that looking at pictures is but a prelude to greater harm. I suppose there will soon come a day in which acts of violence cannot be shown on the silver screen, either, for fear that will inspire others to copy the violence, therefore causing harm to others.

Pete Townsend viewed prohibited images. He was convicted of a crime. Deterrence was served. But he is not a moral leper, any more than are the thousands of other folks who now bear a scarlet SO on their foreheads. The NFL had the good sense to see through the hysteria. It invited a talented musician to play at the Super Bowl.

Tommy has sold millions of records and CDS. Fiddle About is known to most Americans over the age of 50. I'd love to see The Who perform that piece at the Super Bowl. It might just help pop the bubble of hysteria that suffocates each person convicted of a so-called sex crime in the United States. Performing the piece would certainly go a long way toward demonstrating our sexophrenia: when it comes to sex, we just can't decide whether to love it or hate it.

Night of the Living Dead, Maryland Style ...

2009-12-28T09:53:00.001-05:00

The murder of 11-year-old Sarah Haley Foxwell in Maryland is already the stuff of legend. Two days before Christmas, the child turned up missing. Her aunt, with whom she lived, had briefly dated a sex offender. As the frantic residents of Salisbury searched for her, panic spread: 3,000 people combed through neighboring fields and forests. She was found dead on Christmas day.

A report in the Baltimore Sun two days after the murder was almost as disturbing as the murder itself. Outraged citizens demand immediate action; exhausted law men forego sleep as they stalk every lead. Lawmakers are quick to demand new laws. No one seems willing to stop to think about the obvious: rage, grief and fear are not the stuff of sound public policy.

Ms. Foxwell is believed to have been murdered by Thomas James Leggs Jr. But as of the day the Sun wrote, Leggs had not been charged with the killing. He was being held without bail. Leggs was convicted of third degree sexual assault in 1998 and, according to the Sun, was designated a "high risk" sex offender for the "rape of a minor" in 2001.

His record is troubling, but it is hard to know just how bad it is. Legg is now 30; in 2001, he would have been 21. The "rape" of a minor may well have been sexual contact with a child too young as a matter of law to give consent. The Sun simply doesn't give any report about the man's sexual history beyond mere incantation.

Legg's reord is enough to for the likes of Jerry Norton, who heads Citizens for Jessica's Law in Maryland. Norton was pestering lawmakers by telephone on Saturday.

"My heart goes out to the friends and family of this 11-year-old child," he said. "We need to make it clear to citizens of Maryland that we are not going to let these pedophiles molest our children with just a slap on wrist. We're tired of these watered-down sentences -- they come out and do it again."

"What . . . is he doing back out on the street, and what is he doing having contact with this child?" he said. "I think the problem is with these guys going through a revolving door."

Maryland lawmakers are already behaving as though they have won a libidinal lottery ticket. State Sen. Nancy Jacobs (R-Harford) is screaming for blood. She intends to "go ... as far we can" in tough new laws to crack down on sex offenders. Jacobs co-sponsored Maryland's version of Jessica's Law, a bill passed in 2006 that set sentencing guidelines for child sex offenders. The legistation was named for another child martyr, a 9-year-old Florida girl who was kidnapped, sexually abused and killed by a convicted child sex offender. On the legislative docket: abandoning parole of sex offenders, limitations on plea bargaining and permitting wiretapping of suspected sex offenders.

This is not responsible lawmaking. It is pandering to the lowest common denominator in a community torn asunder by grief. In the wake of the great pain and grief caused by the murder of young Miss Foxwell, it is understandable that folks want to rush to do something, anything, to make sure such a crime never happens again. But mass hysteria isn't a reasoned response to evil. Maryland lawmakers resemble nothing so much today as cast members of the old horror film, "Night of the Living Dead." They stumbled along in a twilight of grief, blindly lashing out at phantoms.

Every time the murder of a child becomes national news, we get harsh new laws. There's Megan's Law, Jessica's Law, the Adam Walsh Act, and still Sarah Haley Foxwell was murdered. When will lawmakers learn that throwing printer's ink in the form of new laws at recent grief merely yields a different sort of grief, one visited upon countless others dragged within in the hideous net of overbroad laws passed by folks behaving as though they were at a wake, and not attending to the serious business of passing law.

More and tougher laws about sex offenders will not prevent the abuse of children. Another tragic death is always a heart beat away. The grim logic of those who think we can legislate our way to safety forget the obvious truth that laws are only as good as the people who make them. When hysterics make the rules, everyone gets hurt.

Mourn Sarah Haley Foxwell. Weep over the loss of her life and our lost innocence. But before we pass another law on sex offenders won't someone please stop to think about whether the laws already on the books are doing more harm than good.

When Even Your Adversaries Agree ...

2009-12-26T09:06:00.005-05:00

A week or so ago, I wrote about a child sex case I had recently tried and lost. The case was terrifying. A girl claimed her uncle had fondled her when she was between the ages of 7 and 10. She first made these allegations when she was a teenager. She testified against my client when she was seventeen.

My client denied the conduct, and there was no corroboration of the girl's claims. Indeed, by the time the case went to trial, my client was unable even to recall many of the events surrounding the allegations. Small wonder. Who among us recalls all our contacts with nieces and nephews? Is it time to carry a webcam to record each and every moment we spend with a young person so as to have proof later in life that we never erred?

At trial, the state spent hours corroborating the inessential. Yes, Virginia, there was a living room, and a bed room, and a house with doors and windows, and family gatherings. The state did a masterful job of setting the scene for the allegations.

But bringing such claims a decade after the fact is simply wrong. And so is relying upon such evidentiary swill as "expert" testimony on so-called delayed disclosure and incremental disclosure of childhood memories. There is something wishy-washy about the testimony of an expert that explains away all inconsistencies. Indeed, a theory capable of explaining everything typically explains nothing much at all.

I wrote about that here and then moved on to another case.

Last week I was in several courthouses around the state meeting with prosecutors to discuss pending criminal cases. Two of them mentioned they had read my recent column, and, making sure that no one was looking, they told me they agreed. They are reluctant to use the so-called experts in these cases and they find fundamentally odd and unfair treating child sex cases as some sort of special phenomenon requiring new and relaxed rules of proof.

Neither prosecutor worked with the other. Both were in separate cities. And in neither instance did I bring up the topic, the loss and its consequences for my client are painful.

I find it hopeful that prosecutors harbor doubts about the virtual suspension of statutes of limitations in allegations of child sex. Hopeful, too, is the recognition that the recent tendency to credit virtually any such claim works a disservice to defendants, many of whom are literally blindsided a decade or so after an alleged event and have no idea what the complaining witness is talking about.

Child sex abuse is a serious issue, to be sure. No one denies that it occurs. But the latest bandwagon resembles the hysteria in Salem in the 1600s when it took but little to be accused, convicted and killed for being a witch. Too often, I suspect, child sex abuse claims are the tip of a larger iceberg. Submerged just beneath the surface are chaotic familial structures begging for release. That these forces erupt at the expense of often innocence defendants is a national tragedy we will be talking about in decades to come.

There is not a remedy for every wrong. Equity teaches that. Somehow trying to make the world safe for the fantasies of children has become a waking nightmare for many adults. I am glad that even adversaries in the courts are beginning to see this.

Oh, What A Difference A Continent Makes

2009-12-13T11:52:00.003-05:00

Patrons at Berlin's Maison d'Envie (House of Desire) can take advantage of a unique discount when engaging the services of a prostitute. Present a bicycle helmet, padlock or bus ticket to the cashier, and get a near 15 percent discount off the full price of, et, um, well, you know.

Like most businesses in tough times, Germany's near 400,000 sex workers have been hit hard by the recession. Harried business owners are trying to find a way to keep business booming. This eco discount seems just the trick.

"The environment is on everyone's lips around here and it's pretty hard to find a parking space, so we came with the idea of an eco-discount," recports Regina Goetz, the matron in charge of the Maison d'Envie. She reports that the discount is so popular with clients that business is holding even despite the recession.

What a different a continent makes. In the United States all these folks would probably be rounded up and labelled sex offenders.

Oedipus Rex: Drama or Docudrama?

2009-11-30T05:01:00.002-05:00

This week's trial is a nightmare, and I've had trouble sleeping for days.

A couple of years ago, two parents confronted their teenage daughter with the contents of text messages on her cell phone. A peer was writing to the girl in tones too salacious to be repeated even here. He wanted her, in the most carnal of ways.

The fifteen year old girl was outraged. How could the parents so violate her privacy, she demanded, tearfully.

"We just want you to be safe," the mother replied.

"If you want me to be safe, then you should know what Uncle X did to me," the teenager responded. Her mother and father sat dumbfounded as she relayed an account of touching her "privates." In a flash, the salacious messages were forgotten. Law enforcement was contacted, an investigation begun, and my client, Uncle X, was charged with serious felonies. Since that initial claim, the state calls it a "disclosure," the child has now come forward with a new claim. My clients is now also alleged to have engaged in cunnilingus. This late disclosure the state described as consistent with traumatic "incremental disclosure."

There are no other witnesses, and no physical corroboration to any of the teenager's claims. Even so, the state has some two dozen people on its witness list. My client denies any wrongdoing.

How to defend such a case? Attacking a child is never wise. The most difficult thing a criminal defense lawyers ever does is to cross examine children. The worst moment in my professional career was cross examining a nine year old about what her father's most intimate part looked like. The jury acquitted of that count, but I felt so bad for the child I wanted to adopt her and protect her from more nightmares.

In child sex cases, lawmakers have virtually abandoned any concern with statutes of limitations. The theory goes that the trauma of child sexual abuse is so severe that the events are often not disclosed until later in life. To punish and deter these crimes, we create special rules for these special cases. You can be accused of a crime that allegedly took place decades ago. It seems wrong to me to me create special rules that depend almost entirely on the reliability of childhood memory.

Lawmakers rush to pass new laws protecting victims of sexual assault. But do these same lawmakers ever really pause to consider the harm done to those wrongfully accused?

The alleged victim in my case this week will testify about events that she claims occured ten years ago, when she was seven. Just how capable is a seven year old of recalling fact from fancy? And how much of what we call memory even in adults is really a creation of fancy?

I am reminded of the sensation Freud caused a century ago when he published essays of infantile sexuality. Neuroses, he claimed, were almost all a product of inappropriate sexual contact. It seemed child abuse was rampant in the Nineteenth Century. But as his thinking evolved, Freed realized that many of the reports of sexual contact were mere fantasy. Paradoxically, some were mere wishes that were sublimated and transformed into waking thoughts that looked like memories. Psychoanalysts are well aware of the power of unconscious that the force of hidden drives. How many wicked uncles are really just loving men whom a child wishes were his real parents? How often are memories of touches really fantasies too dangerous to own?

We will never know, unfortunately. Indeed, we cannot know in cases brought long after the fact.

Instead of challenging these memories, an entire industry has been created. So-called experts if "forensic child abuse interviewing" take the field to describe how best to create safe environemnts in which children can "disclose" ancient trauma. In no other type of criminal case is the requirement for corroborating physical evidence so easily forgotten. A child abused is a gem to be burnished by patient listening. Enourage the child to disclose what happened, the theory goes. But what if this merely results in a better articulated and supported fantasy? Are we so tone deaf that we read Oedipus Rex as docudrama?

In these week's case, the state has experts on delayed disclosure, incremental disclosure and how sexual predators groom young children (note to all: treat all children as miserable little savages capable of anything or face the consequences; the love, hug and lap you offer today is tomorrow's alleged snare). Photographs will be offered to show that the home in which the alleged fondling took place actually exists, as though this were in doubt. Days will be spent explaining how all this could really be true.

But we will never really know if any of it is true, or whether the expert's opinions bear real weight. The reason for this is we have no evidence that all these theories can be verified. When a child complains a decade after the event there is no way to confirm what is said. And so the nightmare of this week's case. My client faces decades behind bars if the jury believes his accuser.

Why would a child lie about something like this? That's the state's best evidence. Freud know first-hand: Children often wish for things they cannot have. Sometimes it is to be rescued from a home in which the parents are at war. Sometimes they wish an uncle or aunt would save them. But they cannot admit this wish; it is too terrible. So the uncle becomes a demon, and, in time is cloaked in accusations that can destroy.

The state's experts will deny this, of course. Because admitting it will then lead to the question they cannot answer: How can a jury tell the difference between an accusation based on fact and one based on fancy?

Dunn v. The State: A Picayune Ruling

2009-11-29T10:01:00.003-05:00

Derrick Todd Dunn can't catch a break, and the good people of Georgia will make sure he never does.

Dunn was convicted of statutory rape in 1996. In other words, he had sexual contact with a person deemed unable to give consent. This can mean any number of things. Did he make love to the girl next door? Or was the act sinister? The reported decision, Dunn v. The State, Georgia, Supreme Court, S09A1369, doesn't say. It simply reports that he is a sex offender, and, in Georgia, that means he might be guilty of no more than a criminal offense with a minor.

Don't be offended when I say "no more than a criminal offense with a minor." I am not in favor of child molestation. But it does pay to recall a little history. Laws currently on the books reflecting the age at which a person can give consent to sexual contact are comparatively recent. It was not until the late 1880s that the Women Christian Temperance Union began to agitate for laws raising the age of consent from 10, which was current in many states, to 18. By 1920, the age of consent was 16 to 18 years old in nearly every state.

We simply do not know why Derrick Todd Dunn is required to register. I am willing to bet that it was due to consensual contact with a woman near the age of consent, however. I say this because he is out of prison now. A truly shocking crime would have carried a far greater penalty.

Mr. Dunn must register as a sex offender wherever he lives in Georgia. If he moves, he must register anew with local law enforcement within 72 hours.

On January 17, 2009, Mr. Dunn lived a certain address and was registered. That very day, he left that residence and went to a hotel, the Calhoun Lodge, where he stayed for fice or six days. He moved to a new permanent address on January 23, 2009. He duly appeared at law enforcement's door on January 26, 2009 to report the new address.

He was met with handcuffs, apparently. You see, he failed to report his temporary address at the Calhoun Lodge. Georgia prosecutors filed a motion to revoke his probation and return him to prison. Mr. Dunn's counsel responded that the law did not require notification of temporary addresses.

The Georgia Supreme Court ruled that the law requires registration of temporary addresses as well. There is no due process violation because the law is not vague; the law's terms are clear enough for any person to understand them. Never mind that the law is unreasonable; it is clear. That is enough.

The case saddens. Reading between the lines, Mr. Dunn is still struggling 13 years after his conviction to find solid ground. He is itinerant and struggling. Rather than lend a helping hand, Georgia prosecutors have adopted a zero tolerance policy for what appears to be even technical violations of the sex offender registration laws. Is Mr. Dunn really that bad, or is Georgia simply unreasonable?

John's Story: A Midwestern Marine

2009-11-28T13:40:00.004-05:00

This story found its way to my inbox during the past few days. It is another example of a young man's promise destrpyed by a criminal justice system gripped by hysteria.

John's Story: A Marine No More

"An act of kindness, naiveté, and poor judgment nearly destroyed the life of a Marine. There are over 675,000 Registered Sex Offenders in the United States and not finding a public restroom has landed a young man on the registry.

"John grew up in a military family and always wanted to follow in his dad’s footsteps. Like his father, he wanted to serve his country with pride and dedication. Immediately after graduating high school, he went off to the Marines and like most enlistees he struggled to complete boot camp, but each day he reminded himself that this was his childhood dream and that failure was not an option.

"After successfully completing the basic training and enjoying a brief moment of euphoria, John learned that his dad was diagnosed with cancer. His dad had withheld this secret for months, so that John could concentrate on completing his military training. Subsequently, the young soldier was granted a leave to spend some time back home celebrating his dad’s birthday.

"He was so elated about being a Marine at the young age of 20 and was equally proud to return home and visit with family and friends. He spoke to strangers and offered people rides, if they were willing. To us city folks, this kind of behavior seems suspect and alarming, this wasn’t anything unusual for John because of his extroverted and social nature. Yes, there are still people in rural and small town America that still speak to strangers, wave, and offer unsolicited assistance. – Damn these kind folks.

"September 11, 2001 was a memorable and emotionally disturbing day for all Americans and John received a notice that he would need to shorten his leave and return back to the military base.

"Four days later, John was waiting for a friend to meet him at a local park and he decided to run a few laps to get back in military shape. While jogging, his bladder was about to betray him, so he made for a beeline towards a patch of trees. After relieving himself, he then resumed jogging around the park.

"As he was about to drive off, he offered some teenagers a ride. They passed up on his offer and he drove off to visit family.

"It is now September 17, 2001 and John is pulled over by two police officers. They escort him back to the police station and began to question him about the day he was in the park. He was puzzled by their questioning but was fully cooperative. The police informed him that he will need to stay around the station to speak with a detective and hours later the detective informed him that he was being charged with three counts of Attempted Child Abduction....

"As a result of his arrest, John was discharged from his military duties. His career as a Marine was abruptly cut short. He began to battle with depression and thoughts of suicide because he felt that he had let his family, community, and his country down. Fortunately, he sought psychological treatment by a well-respected local psychiatrist who attributed John’s mental decline to his legal troubles. Not only was he struggling mentally but later he was diagnosed with shingles, acute colitis, proctitis with chronic diarrhea & abdominal pain.

"But John did not want to give up on his life so he found a job and returned to college, while hoping that this nightmare would come to an end. He was described by friends, family, and psychiatrists as naïve, and it was very apparent throughout the legal process. Mistakenly, he believed that someone would recognize that this was all a mistake and would rectify the situation. But that day never came.

"Repeatedly he was worried if he would have to register as a sex offender and was told by his attorney that he would not. At the advice of his attorney he accepted a plea deal of 18 months on probation. To his surprise, his probation officer told him that he had to register as a sex offender. Seeking to withdraw his plea, he found a new attorney and was told that it is best for him not to withdraw the plea because that was as good of a plea that he would expect to receive – and there was a chance that he could get some prison time if he went back before the judge.

"Years have passed and John began dating a divorcee. He was in school full-time and worked part-time. He told the police that occasionally he would spend the evening with his girlfriend. Well days later the police arrested him for Failure to Register a New Address. Again the Justice system got it wrong! He had no change of clothes at his girlfriend’s house and all of his belongings were still in the home of his mom (where he was registered. After paying more money on attorney fees, the latest criminal charge was dismissed.

"John struggles today. He is a student, but a marked man. He has written letters to the governor of his state asking for a pardon so that he can return to the military and live-out his childhood dream. He wants to defend America during this time of war. As John says, “No Marine wants to go war, but no warrior wants to be left behind.” For Achilles, it was an arrow in the foot that defeated him, but for John it was a false accusation in a biased courtroom."

Corey MacDonald's Perversion Of Justice

2009-11-28T13:01:00.003-05:00

Press accounts of criminal convictions and their consequences make for painful reading, especially for practicing lawyers and their clients. I've had more than one family say in exasperation something along the following lines: "I've seen murderers get less time. What can we do?"

I sometimes respond to such a comment by saying the following: "You should go hire the lawyer who got that deal."

They never do. The fact of the matter is that the press rarely gets the nuances of sentencing right. That's why we have judges and sentencing hearings. That's why defendants are subjected to evaluations and interviews by court officers and sometimes specialists before sentencing. That's why, in other words, it is hazardous to try cases in the press and then decry the results when they don't suit your agenda.

Law enforcement officers in New Hampshire are pouting this week about the sentence imposed on a man named Patrick Roddy, who pleaded guilty to possession of child pornography. He was arrested in February 2007. He plead guilty to two felony counts of possession of child pornography. The state sought a prison sentence of three to six years; the Court imposed a sentence of 142 days, with stringent conditions, including treatment as a sex offender, and, I presume, registration as a sex offender. Those 142 days were already spent behind bars as a pre-trial detainee when sentence was imposed. So Mr. Roddy walked out the courthouse door, although he is far from a free man.

Foster's Daily Democrat, a paper serving Southeastern New Hampshire and Southern Maine, plastered Mr. Roddy's picture in the paper and on its website. And lest anyone miss the point, the paper also published the last known addresses of the man. It also served as shill for local law enforcement.

"Mr. Roddy received a time-served jail sentence and a suspended prison sentence for his crimes against children," said Corey MacDonald of the New Hampshire Internet Crimes Against Children Task Force. "This sends a clear message that we have yet to make the connection between child sexual abuse images and real child victims in our community." MacDonald claimed to speaking on behalf of some 33 law-enforcement affiliates.

That's is just stupid, and Mad, Mad MacDonald knows it.

Was MacDonald at the sentencing? Did he read presentence reports? Did he determine whether Mr. Roddy was a risk of re-offending? Or did MacDonald succumb to the sort of silliness than once inspired the film "Reefer Madness?" Why look at a picture and all hope is lost: it's a slippery and irrevocable slope from fantasy to rape!

The criminal justice system serves four goals as to any offender: specific deterrence, general deterrence, rehabilitation and punishment. Presumably, the judge in Mr. Roddy's case determined both that the man was deterred from similar misconduct in the future and that he was well on the way to rehabilitation. Spending five months in jail might not seem like punishment to Mr. MacDonald, but most of us would shudder at the loss of liberty, not to mention the stigmatization that comes of being labelled a sex offender in any community to which you might relocate.

The only conceivable reason to impose a longer sentence on Mr. Roddy is general deterrence. And that is Mad MacDonald's point: Crush a person with errant desire. But tell me, truly, will that change the desire, or simply make it harder to detect? I wonder whether folks defer the decision to seek treatment or help for fear of the consequences of honest.

Don't get me wrong. I do not favor the use of children in pornography. The images in Mr. Roddy's possession were shocking and repugnant. There is nothing about a seven- year-old's being forced to engage in sexual conduct of which any right-thinking person can approve. But I am as appalled by a one-size-fits-all-meat-cleaver type of justice. Whereas child pornography bespeaks of a perversion of desire, the sort of rage-inspired passion displayed by Corey MacDonald reflects a perversion of justice.

Who will hold Corey MacDonald accountable for his perversion?

Rob Sanders: Sexophrenic Tool?

2009-11-26T08:33:00.003-05:00

When common sense fails, claim some variant of exceptionalism. That's what Kenton Commonwealth’s Attorney Rob Sanders in Ohio has done. You see, he wanted to convict Nicole Howell, a teacher in her mid-twenties, of first degree sexual assault. He wanted her in prison. He wanted her registered for life as a sex offender. He wanted to destroy her because he believed she had consensual sex with a sixteen-year-old student at Dayton High School.

It took a jury little more than an hour to acquit Ms. Howell. And now the former teacher has sued Sanders. Sanders' defense?

"Sex crimes are not like bank robberies. They typically do not take place on security cameras in front of a room full of witnesses. Ifg prosecutors ignored cases like this, few, if any sex crimes would ever get prosecuted."

Maybe that's what the jury was trying to tell the the Ohio prosecutor: Too many cases like this are being prosecuted, and for no good end.

I don't know whether the jury nullified the law in the Howell case. The defense was not not consent but denial. Apparently, prosecutors ignored exculpatory evidence, including a polygraph exam than Ms. Howell had passed. The state ignored the fact that it was Howell who reported rumors of the contact to school officials. The state ignored the fact that the so-called victim at first denied the rumors. Ther state ignored the fact that the alleged victim could not identify prominent features of Ms. Howell's, features any but a blind lover would recognized.

The prosecution ignored all that it did not want to see and focused on what it wanted: Ms. Howell's hide. And it did so because sex crimes are "oh-so different." This swill is unworthy of a serious professional.

Ms. Howell has filed suit against the state's attorney, claiming damages for her ruined career and reputation. She is unlikely to enjoy relief. Prosecutorial immunity is virtually impenetrable. And Rob Sanders, the prosecutor, is far from chastened by this defeat; he is defiant, and is taunting Ms. Howell's lawyer, baiting him as a showboat in the press.

Prosecutors make great show at closing argument of holding accused person's accountable for their alleged crimes. But when a prosecutor errs, he hides behind immunity. And then, as does Mr. Sanders, he tells the world he'd do the same thing all over again. These cases are special, you see. There is often but a single witness, and why would that witness lie? We need to protect the world against sexual predators.

Ms. Howell was no predator. The predator in this instance was the state. It stalked this woman and sought her destruction. And when it failed and someone tries to hold it accountable, it claims immunity from accountability.

Penetrating prosecutorial immunity is hard. I try it once every couple of years. But the law is harsh. A prsoecutor performing as an advocate can do almost anything so long as what he does is consonant with his function as an advocate. I wonder why ministers of justice get carte blanche to destroy lives, however?

There simply needs to be some corroboration requirement in single witnesses cases. Under Mosaic law, prosecution for murder was only possible on the testimony of two witnesses. This rule bled into the common law, and was eventually swallowed whole. One witness is enough for most crimes these days.

One witness was almost too much for Ms. Howell. How many other defendants have sat in courtrooms, sometimes many years after the events complained of, and been unable to mount a defense to ancient allegations because, quite frankly, the allegations weren't true, and so much time had passed that there was no reasonable possibility of recalling an alibi?

We'll never know. What we do know is that prosecutors regard these cases as special. We permit them to do so because hysterical governs our response to allegations of sexual misconduct. We're sexophrenic, all right. Sex sells by mesmerizing a consumer; and when it doesn't sell, it terrifies. We become strangers to ourselves and to the truth and few seem to care.

Paul's Story: No More Victims!

2009-11-25T18:14:00.003-05:00

Note: An anguished mother sent me this today, and I have obtained her permission to post this. I am told it has appeared elsewhere.

Thank you, Sue.

Paul's Story

"In the eyes of the law, my son is a registered sex offender in Illinois. This is the furthest thing from the truth, a truth nobody has wanted to hear.

"Paul at the age of 18 was very close to his 2nd cousin, Heather who was 12. Paul is ADHD and learning disabled. (All documented; report dated just weeks before his arrest show his comprehension level at the 4th grade, 7th month. This was an evaluation for special education paid for by the state to determine goals for life after high school). The cousins were together everyday due to Heather’s Mom being a caregiver for my mother.

"On Memorial weekend, 2003, Heather’s family went on a camping trip which included Paul. Heather’s Mom noticed them sitting close and wanted to know what was going on between the two of them. Both children denied anything was going on and yet she insisted that the children were lying.

"Upon returning home from camping on Sunday, Heather’s mother grounded her to her room, with no books, TV or games. She was not allowed out of the room except to use the bathroom until she told the “truth”. Regardless of what either child said, Heather’s mother refused to let her out of her room until the truth was told. Heather’s mom went so far as to take Heather to the emergency room on Tuesday to see if she had been having sex. Finally on Thursday Heather told her Mom that Paul had touched her and was allowed out of her room for telling the “truth”. Heather couldn’t say exactly when this happened, only that it happened twice; once in February and once in March at my house. I know for a fact that it couldn’t have happened in March, because Heather was grounded the entire month for hooking up with a 23 year old on the internet, lying about her age, saying she was 18 and having him call my house so that they could set up a location to meet.

"Heather’s parents went to the police to file a complaint. Until Paul’s arrest, Heather continually called him and told him to just tell the police he did it and everything would be over with.

"One Sunday in June Paul was stopped by the neighborhood police while driving one of his other cousins home. My husband and I were at the police station within minutes of the police bringing him there. They refused to let me see him since he was 18. I knew because of his low comprehension that he would not understand what was going on.

"Paul was kept there, booked and arraigned the next morning because he “confessed”. He told the police “Whatever Heather said I did, I did”.

"After Paul was arraigned and we brought him home we talked at great length about what happened. When I asked him why he didn’t ask for a lawyer when the police asked him he told me that he was never asked if he wanted an attorney. I told Paul that they had to have asked him and he said “no, they didn’t”! I said, Paul, did they say “you have the right to remain silent, you have the right to an attorney” and he said “yes”. I pointed out to him that that was the way of them asking if he wanted an attorney. He started to sob and told me he didn’t know that’s what it meant. He also told me that the police officer told him to just say he did it and he’d be out of there and home in to time at all. I know my son did not understand what was happening; even the police knew he had a disability. The very first thing on the police report is that Paul is ADHD. Someone should have intervened and explained to him. Upon reading Paul’s “confession” I knew that a large part of it had been dictated to him.

"As the months went by and we went back and forth to court, nobody wanted to listen or hear the truth. No matter the motions our lawyer filed, nobody wanted to listen. At one point, Heather’s mother (related through my sister, the grandmother of Heather) that if we gave them $2500 they would see what they could do about dropping the charges. This was brought to the attention of the state’s attorney and again nobody cared. This was all for money.

"Paul was 5’ 2” and weighed 105. We knew we risked prison time for him if we went to trial and lost because of his “confession”; so when the state’s attorney offered a plea bargain in June of 2004 of 2 years probation we took it knowing he would never survive in prison being as small is he was, having low comprehension, and the maturity of a 12 year old. God, I am so sorry that we didn’t fight then. Had we known what a “sex offender” label was, we would gladly have even paid the $2500 to the mother to end this.

"For 5-1/2 years we have been in a nightmare and it has now come to a head. Paul has had much difficulty in gaining employment, not only because of his “sex offender” status, but due to his disabilities. He finally gained employment, delivering pizzas and he was the happiest I had seen him since this nightmare started. When his boss found out he was an offender and couldn’t deliver to schools he was fired from his job and has not been able to gain employment since.

"I am now watching my son slowly die emotionally because of this label. He is appalled that this label has been put on him, knowing he would never touch or hurt anyone in his life and that nobody wants to hear the truth. He’s been accused of “touching” Heather and to think that he is now labeled with others who have viscously attacked children. I, and my family have lost ALL faith in our system. Where is justice? When this all started I had faith and believed in our system, that the truth would prevail, that others would see he didn’t understand when he “confessed” because Heather and the police told him to just admit he did it. Now I see that it’s actor against actor, state’s attorney against defense lawyer; the best actor wins.

"My son was released from a state mental health facility in mid-February after five weeks diagnosed as bipolar, brought on by the stress of being labeled a sex offender. He will receive services from a mental health provider and their goal was to have him moved to a respite program for 21 days when he was released to help with the transition to home. We were devastated to find out that it was not possible because it is across the street from a school and sex offenders can’t be within 500 feet of it."

"My son has lost much due to these allegations and his “confession”. And now he has paid the ultimate price by loosing his sanity. The diagnosis of bipolar is a lifetime sentence and because of his sex offender status resources will be limited to him.

"Yes, I’m a distraught mother and I wonder why he just wasn’t executed back when he took his plea; these laws are killing him anyway, only in a slow manner.

"And to know that there are so many more on the registry just like him is appalling! What has happened to society when so many lives can be destroyed by laws created from mass hysteria, confusion, panic, and the media do little or nothing to make the public safer. They are nothing more than feel good laws designed for the appearance of being tough on crime - especially during election years.

"When looking at the registry within my own neighborhood, I can no longer differentiate between the teenager who had consensual sex with his younger girlfriend or who is the violent predator that is capable of committing such a heinous crime.

"The broad definition of the term 'sex offender' has devastated so many individuals who are only guilty of a one time lapse of good judgement. Contrary to popular belief, many of these individuals are of no risk to the communities where they live and work.

"It is only through education, understanding and the assistance from you - our lawmakers -that we may be able to say 'NO MORE VICTIMS.'"

"Is there anyone out there who cares enough to help bring justice to this young man? Does anyone care enough to help fight a wrong."

Warehousing Sex Offenders

2009-11-25T17:59:00.001-05:00

Hartford is home to 10 percent of Connecticut's registered sex offenders, and the city doesn't like it one bit. A recent news story reports that 537 sex offenders live within the city's 18 square mile. With all those sex offenders you'd expect a libidinal tidal wave to overtake the city. Here's the story as reported in the New Haven Advocate: http://newhavenadvocate.com/article.cfm?aid=15611.

I am not sure what to make of this reporting, and, am, frankly, disappointed in the Advocate. It simply went surfing on the surface of statistical date without asking what the data meant.

How many of the folks on the list are registered for consensual status offenses such as statutory rape? How many of the folks on the list are present for crimes of violence? The ratio would shed light on whether Hartford residents at risk.

But of course we get no such statistics. A sex offender, is a sex offender, is a sex offender. The same scarlet brush paints them all with the same hysterical exclamation point. And, what's worse, Connecticut just passed a new law requiring enhanced notification of neighbors when an offender takes up residence. Why is it unlawful to cry "fire" in a movie house, but permissible to fan even more dangerous hysteria by screaming "sex offender"?

There are hidden gems in the story. For example, probationers are typically forbidden to live near children. Where, exactly, is such a place to be found in a crowded city? Many sex offenders resort to living in homeless shelters. And if such a shelter cannot be found, or will not take the person in, then the probationer is deemed in violation of the law. I've had clients who slept on factory floors or under a bridge because of their designation as a sex offender. A separate arrest and incarceration follows those with no fixed addresses in some jurisdictions. (I am told, however, that in some states reason prevails: An offender with no place to go can simply list a park bench. I'd like confirmation of this anecdote from someone with specific knowledge.)

The public fears recidivism. Yet we create conditions in which recidivism is encouraged. Studies indicate that the key to avoiding repeat offending is reintegration in the community and elimination of the sort of asocial and anti-social that prompt some folks to deviate from lawful norms.

So what do we do? We crowd sex offenders in what amounts to substandard ghettos, where they huddle with one another, scorned and rejected by a culture whipped into an undiscriminating frenzy. One shelter in Hartford is home to 29 registered offenders. Do you think cramming these poor souls together yields reintegration? Or might it just reinforce deviance?

I am puzzled by the great rush to classify ever more Americans as sex offenders. Until recently, there was no such epidemic of misplaced desire. We are now either criminalizing what has always been present, and creating new outcasts, or there is something astir that yields new levels of deviance as yet unforeseen. Whatever the cause of these new arrests, it is clear that the criminal justice system and social service system is failing.

Several years ago, Connecticut allocated $3 million to create housing for released sex offenders. That money disappeared in a bad economy. But the sex offenders did not. So where are these folks going? Wherever they can.

It's a national disgrace.

A Texas Nightmare

2009-11-24T17:58:00.001-05:00

Check out this post on one family's nightmare with the sex offender registry. http://txvoices.com/the_nightmare.htm

hat tip: R

Underground Railroad For Sex Offenders?

2009-11-24T12:57:00.004-05:00

During the years preceding the civil war, a netword of abolitionists developed in the United States. These folks helped spirit African-Americans to slavery by forming an underground railroad. It appears that something similar is taking place today, although the goal is far different.

Inclusion on a list of sex offenders is intended to serve as a means of making the unsuspecting public aware of the risk of harm in their neighborhood. The theory goes something like this: If a violent sex offenders moves next door, a person should know about it so that they can avoid the risk of vicitimization. We have a few isolated acts of horrible violence to thank for these laws.

The problem with such laws is that these laws are undiscriminating. We fail to distinguish the dangerous from the benign. It is far too easy to be make your way onto one of these lists. It is almost impossible to have your name removed. The courts, frankly, fail to take responsibility for the havoc these lists cause: registration, we are told, is not punishment.

Tell that to a person on the list who is shunned by neighbors, denied employment and treated as a social pariah. Registration is social damnation, and it often comes with other conditions, too. Sex offenders are often forbidden to live near or with other children. Failing to register, or failing to abide by the conditional liberty they enjoy, can result in fresh prosecution and significant prison.

It is no suprise, then, that something like an underground railroad is emerging in the United States. Ordinary citizens opposed to the madness of treating all sex offenders alike are opening their homes and hearts to those stigmatized, knowing full well that in so doing the sex offender breaks the law. Offenders drop off the radar to live with family and friends who assess them to be no threat at all.

Expect fresh prosecutions for aiding and abetting a felony as law enforcement officers discover these networks. Unforunately, there really is no where to send these poor souls for freedom. At least not in the United States. We're on another moralistic toot that is more hypocritical than ever: We use desire to market everything, but once desire overs steps a boundary, whether in a manner that causes harm or not, we brand the offender.

Lawmakers will soon have a choice. Will they create a separate crime: harboring a sex offender, and require that those found guilty also register by some theory of guilt by association? Or will lawmakers realize that when it comes to justice, one size does not fit all? I am not betting on restraint, at least not yet.

Perhaps when some politicians son is branded for life and treated like a pariah things will change. We're not there yet, so underground shelters will continue to emerge.

A Sex Offender In Santa's Shop?

2009-11-23T06:56:00.003-05:00

The following was reported today on Wierd World News. It is a perfect illustration of the sort of silliness than comes of branding folks as sex offenders.

Apparently one of the folks volunteering to answer letters to Santa Claus is a registered sex offender. Hence, the United States Postal Service will no longer deliver mail a program called "Operation Santa."

The news report does not reflect why the person is registered. Is he a violent predator? A child molestor? Or is he one of the growing numbers of Americans trapped in the double binds of a sexophrenic culture? For all we know, the Good Samaritan writing to children was required to registering for consensual activity.

Bah, Humbug, said Scrooge. Our new Scrooge utters something similar: Bah, Humbuggery!

Can anyone shed more light on this silliness?

Here's the news report:

"Alaska — American children writing to Santa may not get a response, according to the Metro, a U.K. newspaper.

"Prior to this holiday season, the U.S. Postal Service (USPS) had been delivering any mail addressed to “Santa Claus, North Pole,” to an Alaskan town called North Pole where volunteers write personal responses. This year, the USPS has stopped Operation Santa after it was discovered that one of the program’s volunteers was a registered sex offender.

"Until tighter restrictions are placed on the volunteer force, the program will not operate, and local officials report it “unfeasible” for these actions to take place in time for this year’s holiday.

"Letters not addressed to the North Pole specifically may continue to see response, as these letters may be forwarded to other outposts of Operation Santa."
http://dailyuw.com/2009/11/23/weird-world-news-sex-offenders-pen-north-pole-epis/

Sioux City's Sexual Gulag

2009-11-23T06:30:00.002-05:00

In the 1950s Sioux City and the good people of Iowa snapped. Two grisly murders of children, one still unsolved fifty years later, unhinged common folks. And hence a tragedy was born of the neccesity to do something, anything, to displace the anxiety that comes of confronting evil.

Laws were passed to round up and detain sexual psychopaths and to remand them for treatment until such time as they were "cured."

On its face, the law sounds like a good idea. If you can identify a sexual predator before he strikes, then, the argument goes, proactive detention saves lives. But just who is a predator?

In mid-twentieth century Sioux City gay men were regarded as perverts, and, hence, ready to snap. The city's children needed protection from what right-minded people thought the men might do to children. A new wing was opened at Mount Pleasant. Ward 15 was open for business. So Sioux City police officers raided men's rooms and resorted to the usual trickery of interrogating the frightened with veiled threats and subtle promises of hope. Lists were created, and kept. The different were targeted and some two dozen of more men were taken to a psychiatric facility and held for months while the mental health professionals tried to figure out why the men were there and what to do with them.

Neil Miller's Sex-Crime Panic: A Journey To The Paranoid Heart of the 1950s tells the tale with elegant and compelling prose. Although the book was written in 2002, it bears reading today. We are no less prone to the sort of moral panic that yields bad law now than folks were in the 1950s. We still resort to undiscriminating fear when confronted with a sex crime. All that has changed is the name of the victims.

"Despite their good intentions, sexual psychopath laws invariably took a catch-all approach to sex offenders. The intended targets may have been rapists and murdereds, but in almost every state with a sexual psychopath law, little or no distinction was made between nonviolent and violent offenses, between consensual and nonconsensual behavior, or between harmless 'sexual deviates' and dangeours sex criminals," Miller writes of the 1950s.

We struggle with the same sense of panic today. Hence, Megan's Law, requiring registration of an ever-expanding class of so-called sex offenders, ranging from Romeo and Juliet couplings, to folks who urinate in public, to folks who look at the wrong sort of pictures. Paranoia runs deep in American culture; fear of the other reflects and gnawing uncertainty about just how deep the currents run in the mainstream of American life.

"[S]ex crime panics -- and panics of all sorts -- are very much in the American grain, from the Salem witch trials down to our own time.... Public fears and anxieties can lead to the enactment of bad laws, and laws enacted in an atmosphere of fear and anxiety can lead to even worse consequences."

Miller tells a story about Iowa in the 1950s, but it requires little to see that the same tale is today unfolding before our eyes. There's something wrong when a society makes a celebrity of the surviving family of a crime. What's worse is taking a shocking crime and treating it as somehow reflecting the norm in deviance. Adam Walsh's father is a celebrity, recognized for no accomplishment of his own save his very public grief and anger. And yet, Congress passed a law to extend sex offender registration because of the pressure Mr. Walsh brought to bear. I wonder what a social historian will make of this pathology in the decades to come, and how many lives will be destroyed.

A Sexophrenic Culture

2009-11-22T13:51:00.000-05:00

Let's face it, we are a sexophrenic culture. On the one hand, we celebrate and market sexuality: Turn on the television, look at a magazine advertisement, walk down a street: Sex sells everything from toothpaste to automobiles. We manipulate and cultivate desire.

Yet at the same time that we do this we also criminalize desire. We register sex offenders, charge folks with crimes for engaging in sometimes consensual behavior and fail to draw a line between fantasy and reality. Looking at the wrong photographs can land you in prison. Being mistaken about the age of a consenting partner can land you in prison. Engaging in the wrong kind of chat on line can land you in prison.

We're sexophrenic to the core.

A significant portion of my law practice is devoted to the defense of so-called sex crimes. Sometimes it is obvious that the behavior alleged should be a crime. There is nothing about a violent rape that does not offend. But often the conduct is more subtle: A 19 year-old man responds to a fifteen year old girl's overtures. It is a crime likely to land the man in prison.

How did we become sexophrenic? What impulse leads us to punish the very thing we encourage? I don't have many answers, but I have seen many lives undone in ways that defy reason and sound social policy. This page is dedicated to the defense of folks charged with sex crimes; it is not an endorsement of sex crimes.

Last week, I read a new book on sex crimes and offenders, entitled Reconsidering Sex Crimes and Offenders: Prosecution or Persecution? (Praeger, 2009)by Zilney and Zilney. The book confirmed many things I already knew. "Currenbtly," the authors write, "everything is related to sex: advertisers use sex to sell virtually every productm and society is inundated with sexual images and connotations on a daily basis." Lawmakers reacting to this sexual saturation often act in reponse to isolated harms, creating overbroad legislation that reaches far more broadly than the harm inspiring the new law.

Legislative momentum for enhanced sex offender registration. Thus, the 1994 rape and murder Megan Kanka helped inspire sex offender registries. Adam Walsh's murder helped strengthen registration requirements. But is the public protected from harm when folks engaged in consensual activity are required to register? Is public urination a sex offense? The media whips up moral panic when a stranger commits an act of sexual violence, yet most sex offenses are intrafamilial affairs. Does it make sense to criminalize errant desire in every form?

Zilney and Zilney argue persuasively that increased registration and stigmatization of sex offenders may actually frustrate efforts to rehabilitate folks who make mistakes. While recidivism rates for sex offenders are lower than rates for all criminal offenses, there is persuasive evidence that isolating exclusion of sex offenders from normal society and from employment opportunities increases the very stressors that encourage re-offending.

Of course, labeling a person a sex offender is the kiss of death. No one wants to come to the aid of a "pervert." So lawmakers pass ever more inclusive and resitrictive legislation, drawing more and more people in what amounts to virtual planatations. We fail to distinhuish serious crimes from petty crimes. In the rush to create a one-size-fits-all system, we tax overburdened services to the breaking point: is it any wonder that dangerous folks slip through the cracks?

I encourage folks to send me stories and anecdotes about our sexophrenic criminal justice system. Perhaps by focusing on failures in the form of over-reaching we will be able to learn enough to make intelligent requests for reform of the legal system.