producing child pornography; you'll be surprised how easy it is

A lower court threw out charges of child porn production against a 17-year-old Michigan boy who downloaded child porn. Circuit Court Judge Mark Trusock reinstated those charges.

The kid did not photograph or record sexual images of children so how did the judge decide that the kid should be charged with production?

The judge bought the prosecution's argument that...

...because [the boy] moved the images from his screen delivered by an Internet server onto his hard drive, he was guilty of producing child porn.

Think what that means.

It means that by reading this blog post--which downloads it to your hard drive--you have produced it.

This blogger begs to differ.

The rest of the story is that the boy is also in trouble for making violent threats against people at his school. For the sake of argument, let's say that the kid was making actual plans to hurt people at his school.

His sentence for actual threats of physical violence against people within his reach could possibly be shorter than his sentence for downloading illegal images if he spends any time on the sex offender registry.

sentencing for violent offenders is key to easing prison overcrowding

Legislators everywhere are wrestling with the problem of prison overcrowding. How to reduce our astoundingly high prison population without risking public safety?

Today, nearly everyone acknowledges that our criminal justice system needs fixing, and politicians across the spectrum call for reducing prison sentences for low-level drug crimes and other nonviolent offenses. But this consensus glosses over the real challenges to ending mass incarceration. Even if we released everyone imprisoned for drugs tomorrow, the United States would still have 1.7 million people behind bars, and an incarceration rate four times that of many Western European nations.

Lighter sentences for non-violent offenders will not be enough to make the difference we need. We need to look at how we punish those convicted of violent crimes. 

We could cut sentences for violent crimes by half in most instances without significantly undermining deterrence or increasing the threat of repeat offending. Studies have found that longer sentences do not have appreciably greater deterrent effects; many serious crimes are committed by people under the influence of alcohol or drugs, who are not necessarily thinking of the consequences of their actions, and certainly are not affected by the difference between a 15-year and a 30-year sentence.

Legislators have unnecessarily burdened our judges by eliminating their ability to judge.

...as a result of mandatory sentencing laws, judges often cannot make reasonable distinctions between drug kingpins and street-corner pawns. We ought to empower judges to recognize the difference, and to reduce punishment for run-of-the-mill offenders...

For sex offenders and their families, here is the meat and potatoes of this opinion piece:

Recidivism is also a serious obstacle to reform. Two-thirds of released prisoners are rearrested within three years, and half are reincarcerated. But many of the returns to prison are for conduct that violates technical parole requirements, but does not harm others. And much of the problem is that the scale and cost of prison construction have left limited resources for rehabilitation, making it difficult for offenders to find the employment that is necessary to staying straight. So we need to lock up fewer people on the front end as well as enhance reintegration and reduce collateral consequences that impede rehabilitation on the back end. [My emphasis.]

Sex offenders are not mentioned at all but, for those who study sex offender issues, the absence is big and loud. Sex offenders have an exceptionally low recidivism rate. Those who do return to prison are far more likely to return because of a parole violation that does not harm others.

An honest examination of prison overcrowding will acknowledge this.

polygraphs serve law enforcement, not therapy

Registered sex offenders on parole, probation, or supervised release are regularly subjected to polygraph testing.

Under Pennsylvania law, polygraph results are not admissible at trial because of their unreliability. 

Despite that, the tests are now being used by probation officers across the state to supervise sex offenders.

“It’s really the gold standard,” said Allegheny County Common Pleas Judge Jill E. Rangos, who presides over sex offender court. “It is the most accurate way to gauge if treatment is working.”

"Accurate" is an odd word to use when talking about polygraphs. "Treatment" is an odd word to use when talking about probation officers supervising sex offenders.

The tests, advocates say, are designed to help guide an offender’s treatment, to ensure that the offender is following the rules of probation and to reduce recidivism.

Well, no. If there is one thing polygraphs are not meant to do, it is to guide treatment plans. That is what the therapist does. Why therapists don't rise up in protest at having their skills second-guessed by electrodes in the hands of law enforcement, I do not know, unless it is that having a steady stream of paying clients fed to them is more attractive than ethical treatment.

Using polygraphs to reduce recidivism is particularly bizarre. The recidivism rate of sex offenders is already extremely low. 

David Gentile, a psychologist and approved treatment provider in sex offender court, said the polygraph examinations hold defendants accountable for their behavior while on probation. 

As an approved treatment provider, Gentile benefits from the stream of clients mandated to engage in therapy.

Jane Campbell Moriarty, a law professor at Duquesne University, said allowing the use of polygraph evidence in some court proceedings but not in others is illogical.  

“I would disagree with any court letting it in for any reason.”  ...

She is critical of polygraph exams, primarily because they are so subjective, and there are not yet any scientifically accepted methods and standards for administration. 

Among her concerns, Ms. Moriarty has asked examiners if others who administer polygraph tests could interpret their results, and the answer she’s received is no.   

They have come into accepted use in probation cases, she said, because, “I think we’re just terrified of sexual offenders. 

Fear of sex offenders is driven by the sex offender registry. If there were no registry and its label, we would be talking about specific offenders and their specific offenses. Rape, not sex offenders. Public urination, not sex offenders. Sexting teenagers, not sex offenders. Without the registry, we would not be terrified of sex offenders.

“It seems inappropriate to me that their liberties should be taken away because of a test that we find neither sufficiently valid nor reliable to be used at trial,” Ms. Moriarty said. 

Polygraphs are clearly unreliable. Polygraphs are clearly not about therapy. Polygraphs used to monitor sex offenders are clearly about taking away their liberties.

It is appalling that treatment providers allow law enforcement to use them as snitches and enforcers instead of providing effective therapy--uncoupled from law enforcement--for those who need it.

happy mother's day

It is not easy to handle all the day-to-day business when so much energy goes toward dealing with grief and fear.

It is not easy to wonder who knows our story and how they feel about it.

It is not easy to look and feel like a normal family.

Happy Mother's Day to those doing double duty on the outside while they wait for their partner to come home.

sex on the beach

A man convicted of having sex on a Florida beach is facing 15 years in prison and his girlfriend, convicted of the same, will do some jail time. Both will be on the sex offender registry for life. 

...Assistant State Attorney Anthony Dafonseca said they will pursue a harsher sentence for [the man] than [the woman], since [she] has no prior record and [the man] has been to prison for almost eight years for a cocaine trafficking conviction. 

The state will ask for jail time for [the woman] and prison time for [the man]. Dafonseca said due to [the man] being out of prison less than three years before committing another felony, he's looking at serving the maximum time of 15 years. 

"We gave them a reasonable offer, what we felt was reasonable, and they decided it wasn't something they wanted to accept responsibility for," Dafonseca said. "Despite the video, despite all the witnesses."

The prosecutor's reasonable offer was rescinded when the couple decided to see whether a jury would interpret the video and hear the witnesses differently. If it was reasonable to offer them a lesser sentence, how does a decision to go to trial make the lesser sentence less reasonable? 

If the prosecutor thought the initial offer was reasonable, the actual sentence is, by his own judgment, unreasonable. After all, the crime has not become any worse between the offer and the decision to go to trial.

To accept responsibility for a crime is to plead guilty. It is not a crime to go to trial. The prosecutor is punishing the couple for choosing to make the justice system work the way it is supposed to work.

It is clear that the initial sentence was for sex on the beach and the eventual sentence is for making the prosecutor prove his case.

The judge has little to no discretion, in this world of mandatory sentences.

Ed Brodsky, elected state attorney for the 16th judicial district, joined Defonseca in prosecuting the case. When asked why the case was an important one to the state attorney, Dafonseca said it was important that the community knew what wouldn't be tolerated on public beaches.

Because no one knew that openly having sex on the beach was a bad idea until this case. 

"We're dealing with basically tourists, that came from Brandon and Riverview and West Virginia, and they're here on the beaches of Manatee County, our public beaches," Dafonseca said, referring to the witnesses. "So you want to make sure that this isn't something that just goes by the wayside. And that it is well known to the community, what will be tolerated and what won't be."

Kicking people off the beach when they misbehave is so old fashioned. Today, everything deserves prison.

Publicity like this--15 years in prison for canoodling--could scare away more Florida tourists than seeing suggestive behavior on the beach ever could, especially in the state with a reputation for wild spring breaks for college kids.

an introduction to lifetime supervision

In the federal system, a term of supervised release is usually tacked on to one's sentence. My husband will have five years of supervised release when he comes home.

Listen to the frustration of a man who was recently released from prison and has to endure lifetime supervision:

You say I can’t own a PlayStation 4, or enter an arcade.
I also can’t go to a movie theater, or rent an R-rated movie.
Or write to all of the friends I’ve made over the past five years because they’re convicted felons. ...

I can’t enter a public park.
Or go to a library and read (since so many other things are off-limits).
And then you say that I can’t even have a Kindle because it has Internet access. 

And can I afford to buy books? No! This is because you say that I can’t return to my career. I’d need a computer to do my job, and we can’t have that, now can we? 

So I’ll get a job at McDonald’s, I tell you. And then you say I can’t do that because minors work there. ... 

You say here’s what I need to do:
Surrender all my financial records — my assets, my bank accounts, and my credit card information for your continuous review. 

You tell me to enter SO treatment weekly for at least five years. Plethysmograph testing twice a year. And polygraph testing quarterly since I’m obviously a liar.
Oh, and you say I need to pay for it all with the job I don’t have.

There's more and it is no easier to read than what I have quoted here.

In a comment following his post, he says:

I’m in society, but I can’t do anything. In some ways I actually have MORE freedom in prison. In prison I have access to email. In prison I have access to both the institutional library, and a local library that loans books to prisoners. I have to BUY all my reading material on the street. In prison I’m never polygraphed. I’m never harassed by a probation officer that looks at me like a problem to be solved rather than a human being. In prison I am free to associate with persons similar to my criminal background. Mind you, it’s not because I looking for a partner to hatch some nefarious scheme; I just want to talk with someone who can empathize with my pain.
Being outside is better than in? That’s a notion I continue to struggle with. I thought I’d be happy to finally emerge from prison after five years. Instead what I’ve found is that I’m now in the fire rather than the frying pan.

This is no way to encourage sex offenders to live a law-abiding life!

And yet...and yet:
Even with all the barriers to society they must cross,
even with the severe criticism they face,
even though family members and friends have abandoned them,
even with difficulties finding employment and housing,
even suffering public humiliation...

Registered sex offenders still have an extremely low rate of re-offense, just as they did before there were public registries.