judges should, you know, judge

In a state court case recently, a man was sentenced to 20 years in prison for murder. He will serve ten. What's the difference between that case and a child porn possession case in the federal court? In the federal court, the judge has no power to look at the case and decide what the sentence should be. In the state court, there were no mandatory minimum sentences to hamper the judge. He was able to look at the facts of the case and the defendant and come to a decision about a just sentence.

Will the judge get it wrong sometimes? Sure. Mandatory minimums make it absolutely certain, though, that sentences will be unjust. For example, in a child porn receipt case brought against a nineteen year old man who had naked pictures of his seventeen year old girlfriend, the mandatory minimum sentence requires an insane sentence for him. A judge would probably (who wouldn't?) look at the case and decide that the young man doesn't need prison for that offense.

Another example: a first-time offender. A state court judge may decide that probation would be sufficient. A federal judge has no way to do distinguish between a first-time offender and a career criminal.

Mandatory minimum sentencing has thrown the whole federal court out of balance. The prosecutor has the incentive to bring charges in every case he can. He has the power to convict without having to convince a jury that his evidence proves anything.

We need to change this.

how can felons change laws when they can't vote?

Who benefits from drug laws that incarcerate an obscene number of American citizens? The top five interests identified in this article include police unions, private prison corporations, and prison guard unions. Not surprisingly, these same interests benefit by incarcerating sex offenders.

1.) Police Unions: Police departments across the country have become dependent on federal drug war grants to finance their budget. In March, wepublished a story revealing that a police union lobbyist in California coordinated the effort to defeat Prop 19, a ballot measure in 2010 to legalize marijuana, while helping his police department clients collect tens of millions in federal marijuana-eradication grants. And it’s not just in California. Federal lobbying disclosures show that other police union lobbyists have pushed for stiffer penalties for marijuana-related crimes nationwide. 

2.) Private Prisons Corporations: Private prison corporations make millions by incarcerating people who have been imprisoned for drug crimes, including marijuana. As Republic Report’s Matt Stoller noted last year, Corrections Corporation of America, one of the largest for-profit prison companies, revealed in a regulatory filing that continuing the drug war is part in parcel to their business strategy. Prison companies have spent millions bankrolling pro-drug war politicians and have used secretive front groups, like the American Legislative Exchange Council, to pass harsh sentencing requirements for drug crimes. 

3.) Alcohol and Beer Companies: Fearing competition for the dollars Americans spend on leisure, alcohol and tobacco interests have lobbied to keep marijuana out of reach. For instance, the California Beer & Beverage Distributors contributed campaign contributions to a committee set up to prevent marijuana from being legalized and taxed. 

4.) Pharmaceutical Corporations: Like the sin industries listed above, pharmaceutical interests would like to keep marijuana illegal so American don’t have the option of cheap medical alternatives to their products. Howard Wooldridge, a retired police officer who now lobbies the government to relax marijuana prohibition laws, told Republic Report that next to police unions, the “second biggest opponent on Capitol Hill is big PhRMA” because marijuana can replace “everything from Advil to Vicodin and other expensive pills.” 

5.) Prison Guard Unions: Prison guard unions have a vested interest in keeping people behind bars just like for-profit prison companies. In 2008, the California Correctional Peace Officers Association spent a whopping $1 millionto defeat a measure that would have “reduced sentences and parole times for nonviolent drug offenders while emphasizing drug treatment over prison.”

Millions of Americans are disenfranchised when they are convicted of felonies but police, prison guards, and prison corporations continue to gain power. Those who have a direct interest in changing the laws--the felons--are cut out of the political process.

More than 5.85 million adults who've been convicted of a felony aren't welcome at polling places, according to data through 2010 compiled by The Sentencing Project. That's 600,000 more than in 2004, the last time the nonprofit group crunched the numbers. 

The vast majority of these disenfranchised adults have been released from prison. Sentencing Project researchers found more than 4 million Americans who cannot cast a ballot because they're on probation or parole, or live in a state that withholds the right to vote from all ex-felons.

A felony on one's record makes it difficult to find a job, to find a home, to buy a home, to make oneself a productive citizen again. Those circumstances would fire up anyone to change the laws that made such hell of their lives but--luckily for law enforcement and the prison industry--this group has no vote.

how do I feel about the victims of child porn?

I promised I would respond to Liza's comments on how I feel about the victims of child pornography. She said:

I think you are very lucky that you or your kids have never been sexually abused. You have no idea the effect it has on a person. They carry the shame and horror until they die. Every relationship they have is affected. What happens to the family of the perpetrator is not the victim's concern. It's horrible for the family but the victim is what matters. Even if the victim is only in pictures. I assure you that the child in the pictures is the victim in child porn - not the person that looks at it. 

I've read every word you have written. There seems to be no concern for the victims but only for your family. I think if you thought about sexual abused victims, you'd have a easier time with what has happened to your family. You'd understand why all hell as broke loose in your family.

There must be blogs out there that discuss the viewpoint you accuse me of ignoring; this is not one of them. I started this blog to talk about my experience as the wife of a man under investigation for possession of child pornography.

Sexual abuse of a child is wrong, no matter how the child deals with it as a child or as an adult. If a victim grows up to be a lovely, well-adjusted person with no lingering effects of the abuse, the abuse was and is wrong.

I have said before that I cannot imagine what it is like to be a victim of sexual abuse and to find that there are photos of that abuse available on the Internet. While victims can share some responses to their abuse, surely they cannot all react the same way. Every victim has his or her own feelings about the abuse and makes his or her own decisions about how to deal with those feelings. To say they all "carry the shame and horror until they die" is a gross generalization and discounts the individual perspectives of each person involved.

I cannot do anything about how victims deal with the after effects of abuse when I do not know the victim. As much as I would like to wave my magic wand and make things better for all child sexual abuse victims, I am tragically unable to do that. We all are. Putting sex offenders on a registry is not the magic wand, either. Identifying all the sex offenders in the neighborhood does nothing to protect children from the first-time offender.

You say "What happens to the family of the perpetrator is not the victim's concern." If you don't care personally about what happens to the families of sex offenders, that is your choice but when your government is responsible for the bad treatment of sex offenders and their families, it is your concern.

You say, "I assure you that the child in the pictures is the victim in child porn - not the person that looks at it." The child in the pictures is a victim of the person who sexually abuses him or her and of the person who photographs the abuse and distributes it. The person who looks at child porn is victimized by a court system and a society that treats him as if he has committed the abuse in the photos even when he did not.

It is frequently said that the child in the photos is victimized again every time someone looks at the image. If that is true, why are you not angry with the investigators, the prosecutors, the attorneys, the juries and all the other people who look at those images? If simple looking victimizes the child all over again, those people are also victimizers, are they not? Perhaps you mean that any pervert who looks at the images and masturbates while looking...those are the ones victimizing the child again? Here's a surprise: the law does not care if the viewer is masturbating or knitting socks while looking. Masturbation is not the crime. The crime is more specific: Clicking a link to download the image is the crime; possessing the image is the crime. The law does not even care if you look at the images in your possession.

My concern is not only for my family. They are, of course, my first priority (isn't that true for you, as well?) but our concerns should reach far beyond our families.

My concern is for the victims of the war on drugs unemployed because their status as a felon makes them ineligible for hire. My concern is for the sex offenders harrassed, hurt, and killed because they are on the sex offender registry. My concern is for the government budgets straining under the rising cost of incarceration. My concern is for the families who are victimized by law enforcement using SWAT tactics or home invasion tactics to execute search warrants. My concern is for the children who watch cops shoot the family dog during those searches. My concern is for the millions of American citizens who are not allowed to vote. My concern is for the defendants--innocent, even--who are forced to accept a plea agreement because the mandatory minimum sentence waits for them if they don't take the plea.

You said a mouthful when you said I should be glad that my family has not been subject to child sexual abuse. I am glad. My heart goes out to anyone who has to deal with that particular horror. However, child sexual abuse is not the only horror in the world...nor is it even the worst horror.

I will not apologize for focusing on the injustice my family faces.

20 years in prison...what does that get this innocent woman?

This is how messed up the justice system is: Two people spend years in prison for a crime they absolutely didn't commit and the state doesn't want to compensate them for their lost years because they perjured themselves. The perjury? Confessing to the crime they didn't commit.

It isn't a minor consideration. One person served 20 years, the other served 5 1/2 years.

“The path to Mr. Dean's and Ms. Taylor's hell was led by a narrowly focused, almost obsessed, rush to judgment to solve a murder,” Bryan wrote in his orders.

Both are members of the “Beatrice Six,” who were exonerated in 2008 by DNA testing of nearly 25-year-old evidence. The tests proved the six could not have participated in the murder of Helen Wilson, 68, who was killed by a lone assailant never charged in the murder before his own death in 1992.

I know the state has a duty not to spend taxpayer money unless it has to but who in could argue in good conscience against compensation for these people? Nebraska Attorney General Jon Bruning can.

 “Mr. Dean and Ms. Taylor provided false testimony that led to the conviction of an innocent man,” Bruning said in a statement. “We continue to believe the Nebraska Legislature did not intend to provide recovery to those who commit perjury under the Wrongful Conviction and Imprisonment Act.”

The judge agreed that their testimony was inaccurate. But he found overwhelming evidence to support the contention that Dean and Taylor grew to believe what they were saying during months of pretrial confinement and repeated law enforcement interrogations.

 I have to wonder how the investigators got two people to confess to the crime. Seems to me that it would be hard to convince someone they did murder when they didn't and yet, here it is. So what happened during the interrogations to force the confessions?

This is our justice system.

those scary middle-aged men

At a meeting about an upcoming school trip, the teachers who lead the trip told about a previous trip when one of the dads surprised his son by joining him at a restaurant. The trip is chaperoned by teachers, so no parents traveled with the group. One night at a restaurant, the dad, in town for business, came to say hello to his son. The teachers didn't recognize the man approaching the table.

"Boy," she said, "We were right on him. I mean, here comes this middle-aged man..."

This middle-aged man was approaching a group of 50 middle schoolers and several teachers. I wonder what the teachers thought the man could possibly do in that situation? How many kids could he have molested if they hadn't noticed him in time? Could he have abducted a handful of them before the teachers realized what was going on? Or could he have quickly groomed a few of them as part of his devious plan to...to do what?

The idea that the man was dangerous just because he was a man...that is ridiculous and insulting. People accept without question the idea that the world is a dangerous place with perverts and kidnappers around every corner.

I wondered what the dad's reaction was at the time. Was he insulted at the suggestion that he could be a danger to this group of kids? Or did he simply nod his head and agree that he could see how they could think that about him?

Nebraska study of the sex offender registry

Tell Your Story for Research Study at UNO.

I don't know much about this study but if you have a story to tell about being on the registry, this is your chance.

FACTS (Families Affirming Community Safety) is an organization working to reform the sex offender registry. I just found the FACTS blog and don't have time to do much more than this right now.

abolish the sex offender registry--embrace the possibility!

Paul Heroux makes good points about the low recidivism rate of sex offenders in the Huff Post (2011 article).

Contrary to popular belief, as a group, sex offenders have the lowest rate of recidivism of all the crime categories. These statistics completely fly in the face of conventional wisdom about sex offenders being the most likely group of criminals to re-offend for their initial crime, but these are the facts.

He discusses the difficulties that face registered sex offenders:

On the issue of housing, this is perhaps the biggest challenge facing ex-sex offenders. No one wants them and they have many legal obstacles when finding housing. And they have burnt all their bridges with society and even their family. To help reduce the chances of them re-offending, housing is important for every ex-offender. 

...but makes no connection between those burnt bridges and the registry which is the gasoline poured before lighting the match. He goes on:

There are nearly 740,000 registered sex offenders in the United States. Recent research finds that "the data presented here do not support the claim that the public is safer from sex offenders due to community notification laws."  

This is not to suggest that we should not have sex offender registries. (My emphasis.)

But why not? He admits that the registries do not increase public safety and then insists that registries are necessary nonetheless. 

Then I read Heroux's bio at the end of his article: "Paul Heroux previously worked in a prison and in jail. He holds a master's in criminology ..." Ah. I see. He makes a living because of incarceration.

truth and lies about sex offenders

You may have seen advertisements for companies who offer to help you find the sex offenders in your area. The information is freely available so it makes no sense to pay someone else to do it for you...so how do these companies get paying customers? By lying about the dangers presented by sex offenders, making sex offenders sound pretty darned scary. 

The Sex Offender Issues blog tackles some of the lies meant to frighten people into paying for free information. 

We understand trying to educate adults and children on the dangers of this world and cyber-world, but using fear to do it and making a profit off the backs of ex-sex offenders and children is disgusting!

The sex offender registry has opened up a wide world of opportunity for scumbags.

define "worst case of online exploitation"

In this case, the feds found over 200,000 child porn images on a man's computer. Six hundred of the images were of particularly vile crimes.

The Fremont Tribune says, 

“In numbers of images alone, this was the worst case of online child exploitation discovered by our investigators,” said Nebraska Attorney General Jon Bruning. “Coupled with the young age of the victims, it’s difficult to put into words the horror of this case. We appreciate U.S. Attorney Gilg’s office for its cooperation and expert prosecution that brought Mr. Sheldon to justice.”

 The worst case of online child exploitation? Really? Does this mean that law enforcement hasn't caught any of the evil people who actually abused those children or took the photos and videos? Because, to me, finding the people responsible for sexual abuse of children would be much worse than finding someone who collected photos and videos. Yes, even if the collection included many truly nasty images.

 "The horror of this case" seems to be a bit confused. Isn't the horror of this case the discovery that someone did something horrible to the children in the images? As far as I can tell, this man hasn't been accused of touching anyone.

Gilg expressed her appreciation to Bruning’s office for referring their investigation for federal prosecution. Gilg noted the mandatory minimum sentences and the sentencing guidelines for child pornography crimes makes the federal courts a favorable venue for prosecuting the most egregious child pornography offenders.

Yes, those mandatory minimum sentences and sentencing guidelines certainly are a stroke of luck for prosecutors.

long nights

The other night, I dreamed I was driving my husband to the prison where he'd been assigned. Something happened to the car and we were unable to continue our trip. The details are, well, dreamlike; all I remember is waking up in a sweat because I couldn't get him to the prison on time. No more sleep that night.

Other nights, I wake up thinking about the morning they searched the house and my anger will keep me awake.

Worry about his safety in prison, worry about his health, worry about whether he will get the medicine he needs.

I worry about what our children will be forced to deal with when the word is out about their father.

I go through cycles. This week has been one with little sleep. Maybe next week will be better.

let's hope they got this right

A Oregon couple has been arrested for producing child pornography. If this is true, I am glad that law enforcement caught up with them.

Given everything I have seen of law enforcement and how the justice system works, I am skeptical. Does anyone else automatically wonder what the real story is when a story like this is in the news?

protecting our children?

At one time, I would have thought a conference like this would be a good thing. Going after the bad guys...go get'em!

Now, I am not so sure. Many of the "bad guys" are just guys who clicked the wrong links and those guys end up with what is essentially a life sentence. Years of prison followed by years of supervision and years on the registry. I can't get too excited about supporting law enforcement efforts to go after more people like that--people who have children of their own, children who will have to endure years without a parent. Who protects those children?

One of the speakers on the schedule is Dave Pelzer, author of A Child Called It. Because there is so much controversy about whether the book is true or not, it surprises me that law enforcement would ask Pelzer to speak at their conference.

cache files

My husband and I have discussed his case with several attorneys, most of whom told us they are knowledgeable about internet crime. When discussing cache files (the temporary files left on your hard drive when your browser opens a web page), one attorney pronounced it KAYSH; another pronounced it cashAY. Anyone who knows anything about computers knows the word is pronounced CASH, so the missed pronunciation coming from someone reassuring us that he knows about the internet...this did not bode well.

When you open a webpage, your browser (Internet Explorer, Firefox, Chrome, etc.) saves a temporary file for that page. Later, when you return to that webpage, your browser will pull up the file cached on your hard drive.

If you right-click a link on a webpage, you can decide where you want to save the file so you can find it again later. This is downloading. When you click an image on a webpage, a temporary file is saved in your cache. That is the same as downloading the image. 

True, most of us ignore our cache files but in a forensics search of your computer, law enforcement does not ignore the images found in your cache.

Simply looking at images on the Internet without right-clicking and consciously downloading the image does not protect you in a search of your computer. An image found on your hard drive, whether it is in a folder you created or in the cache files you ignore, is an image found on your hard drive. 

That is enough to put you in prison. 

what should happen when someone views child porn?

A comment on my post from last weekend:  

 You have lots of great points. I'm not sure I agree with you on some of them.  

 If you had to decide what happens when someone views child porn, what do you think should happen. What should the victim (the kids in the pictures) be told. What is going to help them if the people viewing the pictures don't go to prison? I'm not saying they should go, but I'd like to know what you think should happen.

Currently, it is against the law to possess, receive, distribute, or produce child porn. Curiously, the law doesn't say anything about whether you look at the images or not. The assumption, I suppose, is that you do look at it, but that alone isn't what gets you in trouble. After all, all kinds of people are allowed to look at the porn found on the defendant's computer. The investigators, the doctor who verifies the ages of the people in the images, the prosecutor, the judge, the defendant and his attorney, and the jury. I don't know if the courtroom is cleared when porn is shown in the courtroom or if the onlookers get to look.

Looking at images should not send someone to prison, even if society as a whole finds those images especially repugnant and even if those images are of a crime. We don't send people to prison because they look at pictures from the Nazi prison camps or from the rape of Nanking or from the massacres in Rwanda. All repulsive images; all images of crimes against children as well as adults. Why is child porn treated differently? Is it because we assume the viewer is sexually aroused by something he should not find arousing? Arousal is not illegal; neither is masturbation nor fantasy.

What should we do when someone looks at child porn? Let's assume a man enjoys child porn and masturbates while watching videos. Let's also assume that another man avoids child porn but masturbates while fantasizing about sex with children. Why is one worse than the other? Both are doing something wrong, perhaps something sick. Only one risks a prison sentence.

Do either of them pose a danger to children? I don't know. Will the discovery of child porn prove that one is a danger and the absence of child porn prove that one is not a danger? Of course not.

What should we tell the victims? I don't know. Do we really need the law to solve that problem?

I cannot imagine how it would feel to know that pictures of me as a child were floating around where someone could see them. I think the response to that knowledge must vary quite a bit among victims. I find it odd to believe that prosecuting someone for looking at porn will help the victims. Wouldn't it help them more to prosecute the sick bastard who victimized them in the first place?

I have heard people wonder why law enforcement doesn't remove the images when they find them. The logical answer is that the images, once loosed to the Internet, are irretrievable. There is no way to delete images from every hard drive that has a copy; there is also no way to identify every drive that has a copy. Sad but true.

More sad but true: Images deleted from a computer--because they were not what were expected, because they were gross or repulsive, because a mind was changed--can be found in a forensic examination of a hard drive. Forensics can identify those images but forensics has nothing to say about why the images were there or why they were deleted. Even when forensics can determine that the image was unopened, the image is still evidence of a crime.  The crime of clicking a link.

Do I think child pornography is harmless? Absolutely not. Pornography is abhorrent and child pornography especially so. I think someone who has trouble staying away from any kind of porn should probably find some help to break the habit. (Is that possible?)

My argument is about the law. It is wrong to send someone to prison because they downloaded or looked at the wrong images.

Do I think it should be against the law to look at child porn? Do those laws prohibiting child porn accomplish what we want them to do? Has the usage of child porn diminished? Has the number of images decreased? From what I can see, the law simply puts more people in prison.

prosecutorial misconduct: incidental or systemic?

Some thoughts about prosecutorial misconduct from William Anderson, while he was guest-blogging on The Agitator.

Like many others, I would like to believe that the rash of prosecutorial misconduct that infects our courts today is just the product of overzealous people who sometimes get carried away going after the bad guys. However, I would be believing a lie if I were to say that is what is happening. 

No, what is happening is much darker. First, it is true that most people in the system are guilty, and I would not dispute that point. Second, the actual number of truly innocent people is relatively small compared to the truly guilty, and I have no doubt that the “I am a hammer and you are a nail” syndrome takes effect in prosecutorial circles as it would elsewhere in a bureaucratic system. 

But the cynicism I have witnessed in cases of actual innocence, from Janet Reno’s false child molestation prosecutions of 30 years ago to Mike Nifong’s cynical pursuit of rape charges against three Duke lacrosse players, charges he knew were false, to what I witnessed in Tonya Craft’s trial in 2010, tells me that something much deeper is happening. Don’t forget that Reno was rewarded by being named U.S. Attorney General (from where she touched off the biggest U.S. Government domestic massacre since Wounded Knee in 1890). Furthermore, when Nifong was spouting off in his interviews and when he was declaring he had no doubt of the players’ guilt, prosecutors across the country lined up in support of him. The forsook him only after he was caught red-handed in a lie during a December 15, 2006, hearing.

Interesting. Is the system structured so that prosecutors are free of any meaningful opposition? The use of mandatory minimum sentences make it easy for prosecutors to send defendants to prison without ever having to prove a case against them. A jury trial is a powerful balance against the power of the prosecutor and we would be wise to eliminate the mandatory minimums that have made trials nearly extinct.