prison should be our last resort and this is one reason why

Prison offers an opportunity for some to practice their sadistic tendencies on the defenseless, as we see in this story from The Marshall Project about the New York prison system.

... the guard escorted him past a set of double doors out of view of other inmates and the prison’s electronic surveillance cameras. Fabian said the officer, Michael Bukowski, a seven-year veteran, had then ordered him to face the wall and brace himself in the “pat-frisk” position, arms outstretched and legs spread. As he did so, Fabian recalled, he looked down and saw the toe of a boot swinging up between his legs. 

He saw a flash of light, felt a piercing pain and collapsed. “He told me to get up, but all I could do was crawl back to my cube,” Fabian, who is now 21, told investigators later. He lay on the floor in his cubicle in the prison’s dormitory, groaning and crying, for almost an hour before hobbling to lunch. In the mess hall, a sergeant sent him to the prison’s medical unit. He was soon loaded into a van and driven 80 miles north to a hospital in Albany. Doctors there performed emergency surgery, removing part of his right testicle.

 If you are thinking that surely that guard was fired, you are wrong.

More than a year later, however, Bukowski is still a state employee. His disciplinary case remains unresolved, although he faces a criminal charge of assault. His case, described in court documents and interviews, offers a stark example of the intricate protections that shield New York’s 20,000 corrections officers, even when there is compelling evidence of abuse. 

Since 2010, the state has sought to fire 30 prison guards accused of abusing inmates through a convoluted arbitration process that is required under the union contract. Officials have prevailed only eight times, according to records of disciplinary cases released under state Freedom of Information Law requests. Those records show that most abuse allegations never reach the arbitration level: Another 80 cases brought against corrections officers, sergeants and lieutenants since 2010 were settled directly with their unions for penalties other than dismissal, such as suspension.

Power in the hands of the unfit should be taken away as quickly as possible but that is not what happens when prison guards misuse power over inmates. The system is set up to keep the unfit employed in the very position for which they are least suited, a position that lets them do real damage to real people.

This is why we ought to use prisons only as a last resort.

Building more prisons and incarcerating more people means we have more corrections officers in a position where they can abuse other human beings. In a system where those who abuse their authority are rarely fired, we cannot be surprised when COs go bad.

If you can stomach it, read the whole thing.

ripping the curtain away from the polygraph: nothing there

Doug Williams taught people how to pass a polygraph test. The government wanted him to stop because the government uses polygraph tests as part of their hiring process. What he was doing--teaching--was not illegal, so they had to find another way to stop him.

According to Williams's indictment, two undercover agents asked Williams to teach them how to pass a polygraph test in order to pass a federal background check. 

During the lead up to the classes (and during the classes themselves), both undercover agents repeatedly confessed specifics of imaginary past crimes that they wished to lie about. Because Williams was told about one of the would-be employee's (imaginary) drug smuggling, he was technically assisting a person to defraud the government, according to the indictment.

In 2013, Williams was charged with two counts of mail fraud (he received the undercover agents' payments in the mail) and three counts of witness tampering. Each carried a sentence of 20 years. 

Faced with huge fines and a possible hundred years in prison, he took a plea agreement and will serve two years in federal prison.

[Williams] wants to bring attention to a flawed technology he says has been systematically used to incarcerate and disqualify people from federal jobs. 

"I have no interest in helping criminals escape prosecution or in helping people who are not qualified for a job get it. The more people who understand what the polygraph is capable of doing and is not capable of doing, the more likely it's put into the scrap heap of history," Williams said. "It's worthless technology. It cannot withstand scrutiny." 

In a landmark, 417-page report published in 2002, the National Research Council more or less agreed, suggesting that polygraph testing "rests on weak scientific underpinnings despite nearly a century of study." 

If polygraphs do identify liars based on biometrics, no one would be able to beat the test. Why would the government care if someone were teaching a method that could not work?

"The criminalization of speech advocating for unlawful behavior has been a pretext for suppressing unpopular ideas. It's not a stretch to think that's what's going on here," [Lee Rowland, a First Amendment specialist and senior staff attorney at the American Civil Liberties Union] said. "It's clear the government believes the stakes are high here—if [Williams and people like him] are successful, it exposes the fact that these things can be beat, that it's pseudoscience. It's all the more troubling they used undercover agents to create a crime that amounts to nothing more than words alone."

Pay no attention to the man behind the curtain. He has a polygraph to run.

I blogged about the use of polygraphs in interrogation theater here and I blogged about how therapists, parole and probation officers team up to use polygraphs here.

struck down: Wisconsin law violated free speech rights of registered sex offenders

Sex offenders, cameras, children. The combination has been harmful when the resulting photos are pornographic. When the photos are not pornographic?

A Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday. 

The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.

The guy took pictures of kids playing outside.

[...pictures] of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.

In case you missed it, the guy got twelve years in prison for that.

In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places.

...even sex offenders have free speech rights...

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. 

"Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said.

Common sense truth-telling.

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime.

If gaining sexual gratification from photos were a crime, Victoria's Secret and Pink catalogs have surely led many astray.

Prohibiting registered citizens from photographing children means no photos of homeruns, dance solos, and no photos of baby's first (or hundredth) time down the playground slide.

As usual, legislators were not thinking of families or the importance of normal family activities to someone returning from prison. Family connection is one of the factors that help registered citizens avoid new offenses of any kind.

I do not know how many other states prohibit RSOs from taking photos of children. This Wisconsin victory gives hope.

Sex offenders have the right to free speech.

Naturally. 

employed sex offenders make the community safer

Commerce City CO has a police officer who works fulltime with sex offenders.

Tracking them is one thing -- making sure they stay employed and stay out of trouble is another. 

Because of that, Commerce City is taking a new approach to keeping tabs on sex offenders. 

“The biggest part of these guys not re-offending - is whether or not they're employed,” said Commerce City Police detective Christian Rasmussen. 

The 'felon' label already makes it hard to find employment but the 'sex offender' label makes it doubly hard to find someone willing to offer employment. In states where employers are listed on the registry, it is even harder to land a job because the employer doesn't want his or her establishment listed there. What employer wants to be boycotted or vandalized because they hired someone on a list?

Rasmussen is now the full-time sex offender cop for Commerce City.

“Offering them resources so they can become contributing members of society again,” he said. 

Rather than the routine of knocking on doors, checking to make sure sex offenders are living where they say they live, Rasmussen takes that contact a step further. 

“Helping them so they can get jobs,” he said. “They can get re-acclimated into the community." 

This is such an obviously smart thing to do: work to make sure registered citizens are employed.

The idea is the more Rasmussen gets involved in their lives, the more likely they stay clean. 

"Trying to kick them out of the community, that's not an answer,” Rasmussen said. 

“These people have served their time, they've paid their debt to society."  

The article points out that the lack of employment makes it easier to offend again.

Chances of a registered sex offender commiting another sex offense are still quite small but the need to support himself and perhaps his family can drive him to other kinds of offenses.

You know what else would help? Abolishing the sex offender registry. 

can't afford the $60 fee? guess what the response is

This is the way it works in Lake Charles LA.

Back in August [a] Sex Offender ... completed his registration due to release from incarceration for an arrest of Failure to Register, by the Calcasieu Parish Sheriff’s Office. [He] was found to be in compliance and completed the registration. [He] was unable to pay the required Louisiana Sex Offender fee of $60.00 and was given 30 days to pay his fee. After the allowed 30 days, [he] failed to pay his fee and he failed to contact the Lake Charles Police Department’s Sex Offender Registry. Failure to pay the required fee is a violation of the sex offender registration.

His bail is set at $2500. 

That's the setup....in the way "the farmer had a daughter" is the setup for an obscene joke.

Tulsa sex offender not bound by residence restriction laws passed after his crime was committed

Tulsa police are worried.

A man who committed a sex crime in 1999, sixteen years ago, was released from prison in 2012 and now wants to live with his mother, whose home is near a school or daycare center.

A 2003 Oklahoma law prevents sex offenders from living near schools and daycare centers. In January 2015, [the man] asked the courts for an injunction against the Tulsa County District Attorney's office, Tulsa Police and the Tulsa County Sheriff's Office, arguing that since the law was passed after he committed his crimes, it didn't apply to him.

The court agreed with that argument and now the man can live where he chooses.

Tulsa police fear this will lead to a similar situation for many more convicted child molesters.

After the 2013 Oklahoma Supreme Court decision in Starkey v. Department of Corrrections, one would think that the Tulsa police were already aware that ex post facto laws could be challenged successfully. Have the Tulsa police been quaking in their boots ever since Starkey?

"The whole premise of the sex offender registry is to protect our children. Safe zones were created for families to at least feel comfortable knowing there were no sex offenders living nearby. The ruling will open the door for sex offenders to file similar lawsuits and be granted the freedom to reside next to an elementary school, if they so choose," said Tulsa Police Sgt. John Adams. [My emphasis.]

No sex offenders living nearby.

Psst! The sex offenders living nearby are likely the ones who have yet to be discovered. 

Let's hear it for filing similar lawsuits!

criminalizing what young people do

Dahlia Lithwick writes in Salon about what goes on at the intersection of youth and the criminal justice system.

Kids can sometimes see their lives destroyed by the merest brush with the criminal justice system. In one of the most outrageous examples, between 2003 and 2008, two Pennsylvania judges—Mark Ciavarella Jr. and Michael Conahan—sentenced thousands of children to juvenile detention centers, sometimes on trivial charges. These juveniles were sent to private, for-profit detention centers, whose operators paid the judges for filling their beds. [My emphasis.]

I blogged about the kids-for-cash case(s) here.

Lithwick continues:

But as the school year opens, and our eyes turn again to young people and the justice system, it’s worth revisiting the failings of the systems we have created. “Kids for cash” is emblematic of a larger problem: the tendency to criminalize so much of what young people do, the tendency to hit them with draconian punishments that are out of proportion to the crime itself, and the ways the system itself profits financially from those impulses. 

Criminalizing what young people do.

Remember streaking, the foolishness of the seventies? Some states have added that offense to the list of registrable offenses. Forty years ago we could laugh at--or be outraged by--naked kids racing across a football field and let them grow up to become the bank president but are things so different now that a streaker must be added to the sex offender registry that will make it difficult for him to land a job at McDonalds?

Lithwick tells about an 11-year-old boy who was charged with drug possession for bringing a single marijuana leaf to school. He was charged even after the leaf was proven three times to be not marijuana. The school stands by its decision to treat him as if he had brought actual marijuana to school because, you know, zero tolerance protects our children.

Bad behavior at school used to be bad behavior that the school and parents handled. Now, the school leans prissily on zero tolerance rules as if zero tolerance makes any kind of sense and if that's not enough, the school has a police officer wandering the hallways, making the school-to-prison pipeline a reality.

As the school year opens, it’s probably a good idea to remind your youngsters what “zero tolerance” really means: that “it was only a naked photo/fake pot leaf” is not a defense, no matter how clearly the facts are on your side, and that kids are adorable innocents only until the law decides they are vicious predators. There’s a for-profit prison machine out there, and sadly, it eats zero tolerance for breakfast.

Plenty profit from the sex offender registry, as well. Too much of what young people do can land them on the registry. Like putting them into a for-profit prison to be forgotten, it is easy to forget those who are on the registry for all the wrong reasons.

Like the judges who knowingly sent kids to prison when they didn't deserve that punishment, the criminal justice system knowingly puts kids on the registry when they don't deserve that punishment.

prosecutors defend plea agreements

In Oregon, a Clatsop County man was convicted of sexual abuse of a child in the first degree, bribing a witness and tampering with a witness. He was sentenced to 90 days in jail, 60 of which would be served under alternative sanctions.

His case led to a discussion about plea agreements.

The Daily Astorian published a letter from a friend of the convicted man who pointed out that an innocent man was essentially forced to take the plea, and thereby prevented from defending himself against the charges.

I completely understand the horrendous nature of the accusations that were made against him, and the sensitivity that must be exercised in child abuse cases, but these were accusations that Mitchell was never given a fair chance to defend himself against. Any honest attempt to get at the truth of the matter would have involved interviewing the alleged criminal, investigating his background, and speaking with character witnesses. This never happened.

I have no idea if the defendant was guilty or innocent but guilt and innocence too often have little to do with whether a defendant takes the offered plea agreement or not.

The Daily Astorian followed up by publishing a guest column written by Joshua Marquis, the Clatsop County district attorney, and Dawn Buzzard, the senior assistant district attorney, in response to the letter.

Marquis and Buzzard call the letter from the friend an "angry letter." It isn't. The friend sticks to the facts:

The district attorney’s office inflated the accusations at every opportunity, originally charging him with crimes that could have resulted in over 300 years of prison. Even after the most serious of the charges were dropped, they continued to use the blunt sledgehammer of a “choice” between the possibility of spending 180 years in prison with a trial, or taking a plea for 60 days of alternative sanctions.

Yes. That is the way plea agreements work. The prosecutor holds all the cards. The choice is no choice at all.

For those of you who think that you would never plead to something you did not do, think again. The choice is stark: charges that could result in 180 years in prison or a plea agreement that guarantees you will do only 90 days. In a world where sex offenders only rarely win at trial, going to trial is not the opportunity to tell your side that Perry Mason led you to believe it was.

The fact that the district attorney was willing to settle for a couple months over the original 300 years speaks to the weakness of their case. [My emphasis.]

This is a point beyond intriguing. I would call it telling. If prosecutors believed the original charges, why would they settle for such a light sentence? Oh, I know...they are all about sensitivity to the victim and not wanting to put her through hell. But if this guy is such a bad dude, why not go for, oh, I dunno...HALF of the 180 years, or even half of the 300? Dropping all the way down to 90 days tells us one of two things: 1. The prosecutors, if they believe he is dangerous enough to deserve 300 or 180 years, do not care at all about public safety, or 2. The prosecutors know all along that this guy is not dangerous.

The friend continues:

Not once was Mitchell given an opportunity in court to tell his side of the story.

The district attorneys dispute that in their guest column.

Mr. Mitchell had every opportunity to “tell his side.” They are generally called trials.

Here, the district attorneys could offer up the information about how the trial would have worked but they never had any plans to go to trial. When 97% of federal cases and 95% of state cases end in a plea agreement, why would they worry about a trial? When they can threaten the defendant with multiple charges that would result in a extremely long prison sentence, the defendant is certain to take the plea agreement because there is no other choice.

They continue:

He had a right to remain silent in court, but now some of his supporters are trying his case in the court of public opinion and in that forum he’s chosen never to tell “his side.”

This cannot be the only case where supporters try to throw light into the darkness but this is the one that the prosecutors decided to defend in the court of public opinion.

The prosecutors blather on about the defendant taking an Alford plea, trying to convince readers that the Alford plea is nothing more than a run-of-the-mill guilty plea.

The “Alford plea” comes from a 1970 U.S. Supreme Court case where a murder defendant claimed he only entered the guilty plea because of fear he might be convicted of something worse or receive a harsher sentence. The Supreme Court held that claiming you were “really innocent but still pleading guilty” meant … you were pleading guilty … period. More recently, in 2006 a U.S. Circuit Court of Appeals Judge held that an Alford guilty plea is a “variation of an ordinary guilty plea.” The only difference is that the defendant, who often has vehemently denied his guilt to friends and family can claim, “I didn’t do it, but they’ll convict me anyway.”

When pleading guilty is the only way to get the 90 days instead of a sentence of half a dozen lifetimes, you plead guilty. Using an Alford plea is a way to grab the 90 days without admitting guilt. The prosecutors know this but they choose not to explain that. In some cases, using an Alford plea leaves some opportunity for appeal, where a plain old guilty plea may not. Plea agreements often explicitly exclude the possiblity of an appeal.

A defendant who vehemently denies his guilt to friends and family because he is innocent can still be railroaded into accepting a plea agreement because the threat of 300 or 180 years is a real threat when it is a sex offense case.

The existence of the sex offender registry has helped to expand the myth of dangerous sex offenders. If these criminals are so dangerous that they need to register, then they must be frightful indeed. With news media that loves a sensational story about sex offenders, the public from which a jury is drawn has been primed to convict.

The prosecutors know that. They have known all along that they can convict with very little work on their part. Point a finger at the defendant, call him a sex offender and, wow, you'd be surprised how dirty an ordinary man will look.

Almost as dirty as some prosecutors but then, we don't have a dirty prosecutor registry, do we?

NOTE: When you read the prosecutors' guest column, make sure not to miss the comments. Good stuff there.

neighborhoods with more RSOs report fewer sex offenses

Surprise, surprise.

Amid a growing national debate over sex offender registries, researchers who studied years of crime data from Baltimore County have released a new finding: Neighborhoods with more registered sex offenders experienced fewer reported sex offenses. [My emphasis.]

Unexpected. Or is it?

[University of Michigan law professor J.J.] Prescott and co-author Amanda Y. Agan, a postdoctoral research associate at Princeton, say they wanted to test the assumption that the risk of victimization is higher in places where convicted offenders live — the basis, they say, for laws that mandate registries. ...

Agan and Prescott found that each sex offender registered in a neighborhood was associated with 7.5 percent fewer reported sex offenses.

The researchers suggest possible explanations for this.

Sex offender laws appear likely to increase the attractiveness of a registrant's offending away from home, they wrote...

Hang on, here. Does this suggest that all those residence restriction laws are pointless? Is it really possible that someone would travel farther than 500 or 1500 or 2500 feet to commit another sex offense? This explanation begins with the assumption that registered citizens are committing undiscovered crimes, hardly a benign assumption.

...and public registries may make residents better able to protect themselves from registered offenders who live nearby.

If looking at the registry improves our ability to protect against sex offenses, that would imply that the dastardly registered sex offenders target the registry watchers in order to give the neighborhood a lower rate of sex offenses. Those who don't watch the registry are, according to this theory, as able or as unable to protect themselves as they were without the registry, having no effect on the neighborhood rate of offense. This theory depends on RSOs knowing who watches the registry and who doesn't. It also depends on the assumption that registered citizens are trying to commit crimes.

Ryan T. Shields, a scientist at the Moore Center for the Prevention of Child Sexual Abuse at the Johns Hopkins Bloomberg School of Public Health, said a growing body of research shows state registries have little effect on sexual victimization rates.

Growing body of research, indeed. It is difficult to find any clear research findings that the registries have any good effect on sex offense rates.

He said he was not surprised by the most recent findings. Most sexual abuse is perpetrated by people who know the victim — such as relatives and family friends. 

"People who are not registered account for the vast majority of sex offenses in a given year," Shields said. [My emphasis.]

If those who are not registered are comitting most sex offenses, that means the registry is a list of people unlikely to commit another sex offense.

But state Sen. Jim Brochin, a staunch supporter of the state's registry, said it has given families an important tool they need to protect their children. 

Whoa, there, Senator. Protect their children against whom? How does the registry protect children against the people who are not registered but who account for the vast majority of sex offenses?

"We're not going stop every sex offender from doing the horrific things they do, but we have an obligation to our neighbors to make sure they have all the information that the courts and the judicial system have about where these offenders are," the Towson Democrat said. "You have a right to know, when your kids are outside playing, if there are predators nearby."

Sex offenders doing horrific things. Kids playing outside with predators nearby. Oh, stop, Senator! You frighten me so!

See where Senator Brochin is going with his wild imaginings? Probably toward the next election.

Occam's Razor says the simplest explanation is likely correct, so let's set aside unproven assumptions that sex offenders are committing or trying to commit more sex offenses and focus on facts to find the simplest explanation.

Even before registries, sex offenders were unlikely to reoffend. A neighborhood with a large number of RSOs is full of people--the RSOs themselves--who are familiar with the signs of sex abuse (or sexual compulsions) and its terrible effects on a family. This is why they tend not to offend again.

Simple enough?

Another simple explanation is that a neighborhood who sees how difficult life is for registered citizens and their families is less likely to report a sex offense.

Researchers should look at the possibility that harsh treatment of sex offenders encourages people to hide sex offenses that happen within the circle of family and friends.

Tucked into the article at the link are some encouraging words.

...a growing national debate over sex offender registries... 

The debate is growing because registered citizens and their families are standing up and speaking out.

...a growing body of research shows state registries have little effect on sexual victimization rates...

Research is proving us right: abolishing the registry makes sense.

child, adult; victim, perpetrator...it is hard to keep track

Robby Soave writes in Reason about a North Carolina high school couple who sexted each other and the photos were discovered. They were both facing multiple felony charges but she plead to a lesser charge and was given a year of probation.

He, on the other hand,

...is still facing two counts of second-degree sexual exploitation and three counts of third-degree exploitation. As Ricochet’s Tom Meyer points out, the third-degree charges—which constitute a majority of the total charges—actually stem from the pictures [the young man] had of himself. 

In North Carolina, third degree sexual exploitation of a minor means a visual representation of a minor engaging in sexual activity.

He took a picture of himself and had it on his phone. That is what the third degree charges are about.

But consider this: North Carolina is one of two states in the country (the other is progressive New York) that considers 16 to be the age of adulthood for criminal purposes. This mean, of course, that [the young man] can be tried as an adult for exploiting a minor—himself.

Tom Meyer, in Ricochet, sums it up.

A few details make the case particularly noteworthy and offensive:

• There is no indication that the photographs were disseminated beyond the couple until the male student’s phone was seized as part of a separate investigation involving misdemeanor property damage.
• The two were charged with “exploitation of a minor,” despite each being a minor at the time they made the photographs. More bizarrely yet, most of the charges against the teens were for having pictures of themselves on their own phones; i.e., each was charged for photographing and/or storing images of his or her own nether regions.
• The laws they are accused of violating are not merely identical to those pertaining to genuine child pornographers, but are in, in fact, the very same laws that make child pornography illegal.

Old enough to have sex; too young to be photographed naked.

Young enough to be called a child when it serves the prosecution; old enough to be charged as an adult.

The kids aren't the ones who are exploiting minors. The courts are.