Pennsylvania juvenile sex offenders no longer on registry

Good news for juvenile sex offenders in Pennsylania: 

Pennsylvania's highest court ruled on Monday against lifetime registration for juvenile sex offenders, saying the law was unconstitutional because it did not give them the ability to challenge a presumption they would likely reoffend.

Adult offenders are also incorrectly presumed likely to reoffend, of course, but let's celebrate the victory for juveniles!

"We agree with the juveniles that (the law)'s registration requirements improperly brand all juvenile offenders' reputations with an indelible mark of a dangerous recidivist, even though the irrebuttable presumption linking adjudication of specified offenses with a high likelihood of recidivating is not 'universally true,'" Justice Max Baer wrote for the majority. 

Baer reviewed research showing much lower rates of recidivism for juvenile sex offenders, compared to adults, and concluded that "the vast majority of juvenile offenders are unlikely to recidivate."

This is encouraging news because if the court can see that juveniles are unlikely to commit new sex offenses, surely they can see the same about adults if and when a similar case is brought on behalf of adult offenders.

This case was brought on behalf of the juveniles so the court didn't consider adult offenders.

In a lone dissent, Justice Corry Stevens said the Legislature saw the need to require the registration, and the constitution does not require the justices to substitute their judgment for that of lawmakers.

The state Supreme Court is required to substitute their judgment for that of lawmakers if the lawmakers' judgment led to an unconstitutional law.

 "The adjudicated delinquent sex offender's 'right to reputation' under such circumstances should not have precedence over a rape victim's anguish that may well last a lifetime," Stevens wrote.

The decision is not about whose anguish takes precedence. The decision is about whether this particular law is constitutional.

Hurray for the justices who saw clearly the injustice in registration laws!

punishing those who recognize that they need help

It has often been said on this blog that looking at images of child pornography is not the same as molesting a child and that those convicted of child porn possession are sentenced in court as if they have molested someone. Another point made here is that mandatory reporting laws prevent someone from getting the help he needs to stop looking at child porn.

California psychotherapist Leslie Bell agrees.

Beginning next month, however, I will be hampered in my ability to hear the full range of my patients’ desires and to assure them that they can discuss these feelings without fear. Under an amendment to California’s Child Abuse and Neglect Reporting Act, psychotherapists and psychiatrists will be required to report to the authorities any patient who “downloads, streams, or accesses images of any person under the age of 18 engaged in an act of obscene sexual conduct.” In the same way that I am required to break confidentiality to report child abuse, I will be mandated to report consumption of child pornography.

Many other states already require therapists to report to law enforcement those who come to them for help to stop using child porn. Did California look at those other states and find that mandatory reporting reduced the incidence of sexual abuse of children? No, because that is not what those laws do.

On closer inspection, however, the law falls short on three fronts: First, it will not protect children from either the production or distribution of child pornography, which is its intent. Second, it violates therapist-patient confidentiality and decreases the likelihood that people will get the psychological help they need to stop accessing child pornography; if the goal is to undercut production by reducing demand, the law will likely have the opposite effect. 

This is all common sense, something found in short supply when legislators are trying to make a law--any law--to look as if they are doing something important.

Reporting people for looking at illegal images does nothing to reduce the incidence of sexual abuse of children and does nothing to stop someone recording that abuse. If it did, we would have seen a correlation by now.

No matter how many are arrested, the supply of child porn images is not diminished even the tiniest bit. Throw a guy in prison for looking at illegal images and the illegal images remain available.

Throw a guy in prison for looking at illegal images and there is no effect on another person's temptation to molest a child.

You know what could affect that temptation? The help of a good therapist.

Mandatory reporting laws make it much less likely someone will ask for help to control his impulses.

The third front on which mandatory reporting laws falls short? Bell says,

...it conflates desire with action.

Yes.

As a psychotherapist, I am not required to report any other illegal activity that a patient may report to me, including drug abuse, drinking while driving, stealing, sexual assault, assault or even a murder that has been committed. This has allowed psychotherapists and psychiatrists to help patients discontinue illegal or potentially harmful behaviors. And it has enabled patients to speak freely about their thoughts, feelings and desires without fear of exposure. Thoughts and feelings are not equivalent to actions. One of the desired outcomes of psychotherapy is that patients will understand precisely this distinction. [My emphasis.]

Looking at illegal images is not the same as doing what is recorded in those images. We do not assume that someone looking at legal adult porn will cross the line to sexual assault and yet that assumption is routinely made about someone who looks at child porn.

Mandatory reporting laws are less about helping to prevent crime or about protecting children than they are about punishing people who ask for help.

woman downloads child porn to frame her estranged husband

A Pennsylvania woman tried to frame her husband for child pornography possession by downloading the porn herself and turning the computer over to law enforcement. Her plan was exposed and now she faces up to two years in prison.

While the Pennsylvania Sexual Offenders Assessment Board determined Woods is not a sexually violent predator, she must register her address, workplaces and schools she attends for the next 15 years.

Carrying out a plot to put an innocent man in prison is not predatory?

In a world where simple failure to register is considered a sex offense, deliberately downloading images in order to destroy a man's reputation, if not his very life, could be considered violent.

What this woman did is despicable, of course, but even people who do something despicable do not deserve to have to register for public shaming.

Abolish the sex offender registry.

ignoring prison rape

Anyone with a family member or friend in prison grows to hate the inevitable "don't drop the soap" joke. Jokes about prison rape are rife when discussing someone convicted of a sex crime.

The idea seems to be that someone in prison for a sex crime is so evil that it is acceptable for another inmate to commit a sex crime against him.

In this manner, rape is treated as a feature of our justice system when it happens to prisoners, rather than what it is: another grave crime.

Sexual assaults in prison are not only inmate on inmate. No, they too often include assaults by prison staff. In his article in The Week, Michael Brendan Dougherty quotes from Colorlines.com: 

Roughly 200,000 men, women, and children reported being sexually abused in detention facilities in 2011, the most recent year for which the Bureau of Justice Statistics (BJS) has anonymously self-reported data from inmates.

If the jokesters are any indication, this is acceptable. Instead, let's recognize those jokes for what they really mean.

Acceptance of prison rape is a stinking corruption. No conception of justice can include plunging criminals into an anarchic world of sexual terror. And obviously it thwarts any possibility of a rehabilitative justice that aims to restore criminals to lawful society. Inmates are not improved or better integrated into society through physical and psychological torture.

Dougherty reminds us that what the government does to prisoners, it does in our name. In a moral world, that in itself is reason to work toward reducing prison populations. The larger the prison population is, the more we will see stinking corruption.

Prison rape ... vitiates any sense of retributive justice, since rape is not a proper punishment for a crime. Allowing prison rape is just a vindictive horror, and when accepted under the name of punishment makes criminals the victims of justice.

Prison inmates--save for a very few--are released back to society and we ought to want them to come back ready to be part of our society. Do our prisons prepare them for the return? 

Absent major and drastic reform of our prison system, however, the "lesson" our justice system teaches is not that crimes will be punished, but that getting caught may send you to unpredictable horrors; that our society's primary way of dealing with criminality is plunging you into more of it; and that the rod of the law comes in the form of supermax cruelty.

The statistics Dougherty uses show that prison rape is all too common. If it is, that is a problem that can be tackled with more oversight of and accountability for prisons.

How to solve the more insidious problem of people horrified by rape losing that sense of horror when it happens behind the razor wire? 

"my soul wide open"

Oakdale Chronicles delivers a moving Christmas reverie in which an inmate wonders how to celebrate Christmas while in prison, far from family, friends and familiar traditions.

Those of us who have loved ones in prison know that, even with additional treats served up by the prison administration, the holiday season must be bereft of celebration for them. It must be impossible to celebrate the Nativity in such hostile surroundings.

George, the inmate, remembers the Christmases of his childhood.

On Christmas Eve, we would pile into the station wagon and head for church. It was the one time of the year my Mom had no trouble getting the whole family to go to church; mostly because Santa came to our house while we were at the evening service. 

I would sit in the pew imagining what Santa was doing moment by moment. Was he enjoying the milk and cookies we’d left?

Surely our family members locked away from us must have the same moment-by-moment imaginings. Has my family opened gifts yet? Did they decorate the house the way we always did? Are they at church now?

Were the other reindeer jealous of Rudolph because we only left one carrot especially for him, or did he share by letting a different reindeer eat the carrot at each new house? Rudolph was the most popular with all of my neighborhood friends, so I knew no one ever thought of Blitzen or Prancer by leaving more than one carrot. Did Rudolph remember the pain of being left out of the reindeer games, which is why he gave his carrot away as an act of forgiveness?

Forgiveness. How many hours inside prison walls are spent contemplating forgiveness?

My favorite part of the service ... was when Minister Peters asked us all to kneel as he read the Christmas story, Luke 2:1-20 (RSV). 

“In those days a decree went out from Caesar Augustus…,” and as he read, the organist began to quietly play an interlude into the hymn Silent Night. The lights over the congregation were dimmed down and out so only the altar was swathed in bright light. 

“And Joseph also went up from Galilee, from the city of Nazareth…,” and the congregation softly joined the organ and sang as underscoring to the minister’s narration. 

When the lyrics started, an acolyte took the center candle of the Advent wreath and lit the handheld candles of the first person seated in the front row on both sides of the center aisle. 

The candlelight is passed from person to person.

I tipped my unlit candle into my Mom’s flame and then turned to offer my light to my sister. And so it moved down the pew...

“Glory to God in the highest, and on earth peace, good will among men…”

“Christ the Savior is born…

Christ the Savior is born.”

In that candlelight, with tears of joy streaming down my face and my soul wide open, I understood the mystery of God and the truth of Christmas.

Immersed in his memories of  how Christmas used to be and trying to find a way to celebrate, George thinks:

I’m not sure how I’ll recapture those feelings of Christmas while I’m here at Oakdale FCI. Without family, longtime friends, and all the traditions that go with celebrating Christmas, it could become a bleak midwinter’s night. How can the light shine here? 

That star, and all the stars that filled the night sky, reminded me that I am free, even though I am imprisoned. Funny how reminders of comfort and love are often right in front of our eyes, if we only open our souls to see. 

There will be no traveling for me this year, and I definitely don’t have any gifts to bear. I don’t even have a drum on which to play a song; however, my heart does beat the rhythm of life. A life that can once again kneel, see the light, feel the light, and pass that light on to others. With that knowledge in my soul, I am more free inside this prison than many who sit in their homes before a warming fire, or even some who sit in the packed pews on Christmas Eve.

Think of it. It is possible to be more free inside prison than outside because of Christmas.

I pray that inside or outside the prison walls, we can approach the manger with our souls wide open and gently, jubilantly, pass the Light to others.

too many laws give too much power to police

In Bloomberg View, Yale law prof Stephen Carter says,

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.

Does that sound extreme? He reminds us that Eric Garner was killed by police trying to arrest him for selling individual cigarettes without paying the required tax. Someone thought it made sense to put a tax on the sale of "loosies" and Eric Garner died.

It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand. [My emphasis.]

Anyone paying attention knows that violence at the hands of police gets out of hand far too often. If you think it couldn't happen to you, are you sure you know whether you are following the law?

The legal scholar Douglas Husak, in his excellent 2009 book “Overcriminalization: The Limits of the Criminal Law,” points out that federal law alone includes more than 3,000 crimes, fewer than half of which found in the Federal Criminal Code. The rest are scattered through other statutes. A citizen who wants to abide by the law has no quick and easy way to find out what the law actually is -- a violation of the traditional principle that the state cannot punish without fair notice. 

In addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure.

New laws often are passed after intensive lobbying in the service of a noble cause. 

Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate. 

That’s too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same as the advice I give my students on the first day of classes: Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.

Laws that define crimes give the state power to send armed police after us. Once we bestow that power, it will be used. 

once and always

The sex offender registry is often touted as a way to protect children. Which children? Not the children who end up on the sex offender registry. In 2013, Human Rights Watch published Raised on the Registry, a report about children on the registry.

Throughout the United States, children as young as nine years old who are adjudicated delinquent may be subject to sex offender registration laws. For example, in Delaware in 2011, there were approximately 639 children on the sex offender registry, 55 of whom were under the age of 12. In 2010, Michigan counted a total of 3,563 youth offenders adjudicated delinquent on its registry, a figure that does not include Michigan’s youth offenders convicted in adult court. In 2010, Michigan’s youngest registered sex offenders were nine years old. A 2009 Department of Justice study, which focused only on sex crimes committed by children in which other children were the victims, found that one out of eight youth sex offenders committing crimes against other children was younger than 12.

For a child, the psychological impact of being on the registry can be devastating. Deadly, in fact.

Nearly a fifth of those interviewed (58 people, or 19.6 percent) said they had attempted suicide; three of the registrants whose cases we examined did commit suicide.

Josh Gravens, a young man who was on the registry beginning at age 13, talks about being labeled a sex offender. 

Three and a half years in Texas juvenile prisons and four years after that on parole, intensive and abusive sex offender “treatment.” While none of those things should be done to a child or adolescent, by far the worst penalty I experienced was being placed on the Texas Sex Offender Registry. I would not realize the life-changing consequences of being registered until I grew up and had children of my own. ...

Speaking from personal experience, I can say that once my juvenile record was public, there was no way to restore privacy protections. Even though I was removed from the public registry, my information was still readily available on for-profit websites. In this day and age, once online, always online. 

We warn kids about sexting because once online, always online and yet kids are listed on the registry with little thought about what that label will do to them.