lessons from Waco biker shootout: dubious behavior by authorities crushes families

The Dallas Observer carries an interview with John Wilson who was at the Waco Twin Peaks restaurant May 17, 2015, when all hell broke loose and nine men were killed in a shootout. Reports say 177 people were arrested that day; 171 were charged with organized crime activity, and 106 were indicted for murder. 

That's a lot of paperwork.

The interview includes some interesting and infuriating details--the cops refused to give aid to bikers who were dying of gunshot wounds, and refused to let anyone else care for them, either--but some of his observations apply to more than the Waco biker gunfight.

Asked if the prosecutor had information on each of the 106 people indicted on murder charges, Wilson says:

No. No — that’s why the grand jury indicted 106 people in a day. They obviously didn’t review 106 cases. The DA says, “Here’s a list, and this is what we allege they do, and indict ‘em for these murders.” And one of the guys — shows you how much the grand jury looked at this case — there were nine people killed out there; they had 10 people listed. They had a guy that wasn’t even out there shot listed as one of the killed, yet they were able to indict 106 people for that person who wasn’t even shot there. A completely different person. That shows you how much burden of proof there is for the grand jury — how little the grand jury looks at anything … The grand jury indictments are a complete joke. They don’t mean anything. All it does is let the DA go to the next step, where he’ll sit there and try to make plea bargains with people so they can’t sue him for false arrest. If they plead anything, they had reason to arrest you. I did nothing illegal. As far as I know, I’ve seen no evidence that they have saying that I did. If they come up with something, it’s wrong, because I didn’t. [My emphasis.]

It is worth remembering that prosecutors have powerful motivations to push defendants to take a plea agreement; protecting the government from false arrest accusations is only one more.

The interviewer asks how the aftermath affects families and Wilson's answer is all too familiar:

Well, you know, most of ‘em weren’t self-employed. Most of them not only have that to deal with, but they lost their jobs. Some of them have lost their homes. Some of them have lost custody of their children. Then go try to find a job when you’re under indictment for killing 10 people. [Chuckles.] It’s had a terrible effect on them. I can’t go out and contact these guys and reach out to them and stuff, but I can assure you there are families being crushed over this. You have 177 families, not individuals, that were affected by this. There are children who will not go to college now because of this. And their parents, in 90 percent of the cases, had nothing to do with the violence or anything wrong. And these children are being punished. These wives are being punished. And this is gonna resonate for generations …

Heartbreakingly familiar.

Over 100 were indicted for murder before a proper investigation was completed and without serious consideration by the grand jury. 

And it’s all being done just so that the local DA can save face for handling this the wrong way. It’s a tragic thing. I’m not saying there aren’t people who should be in trouble. There probably is. But it’s hard for me to believe that [McLennan County District Attorney] Abel Reyna didn’t wake up in the middle of the night and think, 'Dang, I wish I’d have done this thing differently.' Because now if he drops charges on everybody, then he’s gonna face a storm of civil suits. They’ve got to make this thing stay alive long enough to try to get people to plea. [My emphasis.]

Again, the need to get defendants to take a plea agreement. If defendants take plea agreements, there are no trials, no need for the prosecution to prove their cases.

It's a sweet deal for the prosecution but families are being crushed.

Conor Friedersdorf has a piece in The Atlantic about the Waco biker gunfight in which he says it seems likely that two to four of the dead bikers were killed by rounds fired by police. Friedersdorf is appalled by the way the cases have been handled.

[Prosecutors] are entrusted with charging murders in a state with the death penalty. Their due diligence is sufficiently inadequate that individuals totally innocent of murdering William Anderson––and known to be innocent of that by everyone––still find themselves on the wrong end of an indictment for that crime. And an indignant district attorney calls that “a minor error”! 

Dubious behavior by the Waco authorities hardly ends there. From the start, they’ve actively suppressed evidence, making it impossible for the public to know how many of the nine dead bikers were shot by other bikers and how many were shot by police. In September, I noted an Associated Press report that the gunfire that day “included rounds fired by police that hit bikers, though it isn't clear whether those rifle shots caused any of the fatalities.”

Dubious behavior by authorities? Hardly a surprise to anyone who has been through the criminal justice system.

these women will never recover

What happens to the wife of a man convicted of a terrible crime? Shannon Maroney tells how her life changed when her husband raped two women.

He confessed to the crime; in fact, he called 911 to tell police what he had done. From that point, her life was turned inside out.

News of the crimes hit the media, and I couldn't return to my home, now a crime scene surrounded by police tape. Privacy was ripped away and replaced by public scrutiny. He has a wife. Who is she? What's wrong with her? Was she part of this?

She had done nothing wrong and yet she began paying for his crime immediately.

The police were clear in telling me whose side I was on, no matter what my feelings for the victims might be. When I asked if there was anything I could do to help them, the victim services officer looked me up and down and said sternly, "The victims don't need to hear from Jason's arena."

Some friends drew lines in the sand, too. "Shannon, don't you know these women will never recover? You can't have compassion for them and Jason." Others offered their sympathy and support, as they faced their own conflicted feelings toward the Jason they'd known and the terrible things he had done.

These women will never recover. Labeling the victims according to the role they played in his crime--the woman who was raped! the wife!--forces the victims into a narrative the public enjoys in a twisted way. You think Nancy Grace doesn't enjoy the stories she details exhaustively again and again, trying to draw the audience into her horror story? The audience of strangers, family, and friends does the same thing, telling and retelling the story, relishing the thrill of the gory details, The players in the drama are not allowed to step out of their assigned roles and be people with complicated emotions about the crimes. These women will never recover.

While Jason spent nine months in solitary confinement — or "protective custody," as it was called — I was left on the outside to deal with the aftermath, completely unprotected, an easy target for judgment and blame. My school principal banned me from entering the school without permission and forced me out of my job. I lost my salary, benefits, seniority, place of belonging, and, worst of all, my relationships with students, staff, and parents. I was made guilty by association. [My emphasis.]

 She had done nothing wrong. Remember that...because the principal did not.

I turned to victim services at the police for help, as surely they could let the public know I had nothing to do with the crimes, that I hated what Jason had done. ...

But there was no one to help me. The defense counsel was for Jason, the accused. Victim services were for the real victims, not the collateral ones like me. I didn't fit anywhere. All I could do was put one foot in front of the other and try to find a way through to the other side, whatever that would look like.

Other wives out there are nodding as they read this story, recognizing themselves in it. With 850,000 sex offenders and 2.2 million people incarcerated in the U.S., that leaves millions of people who are collateral victims ignored by victim services, left alone to deal with the aftermath.

At the end of it, after enormous pain and loss were expressed in victim impact statements, remorse and confusion were expressed in Jason's statement, and the facts of the assaults were reviewed by the judge, all that happened is that one person was sent to prison for the rest of his life and everyone else was just sent home. It was indescribably empty, with no peace or healing to be found. That was something, it seemed, we would each have to find on our own.

Even the real victims, the ones who were raped, are left with no peace or healing. While sending the rapist to prison is the right thing to do, that alone does nothing to resolve the ugly mess of emotions caused by the crime. We ought not pretend that fear of him doing it again is the only thing the victims must deal with. Putting him in prison does not help with the rest of their turmoil.

They put the state and the accused in the center and victims around the periphery, typically using victims' stories only to achieve a conviction and to influence sentencing. The focus is on retribution.

Retribution is not healing.

Because when we merely lock people up, we seal off much of our own chance to build understanding or have our questions answered. Victims can be plagued by questions their whole lives, questions that only the offenders may be able to answer: Why did you do it? What was going through your mind? Why me? Do you know what you've done? Do you know how you've hurt me and my loved ones? How can I know you won't do it again?

Neither the real nor the collateral victims deserve to be left with unanswered questions. Restorative justice programs, Shannon Maroney's passion, offer a chance for them to ask those questions of the perpetrator and for the perpetrator to answer. Answering the questions can be part of healing the perpetrators, too

Maroney refers to the conversations she had with her husband during prison visits as an "informal" restorative justice process. It is an interesting thought, that people like her have been engaging in restorative justice ahead of the professionals.

At the same time, though, she was being punished by her community for being the wife of a man who did something terrible. That is what the sex offender registry does to families: punishes them right along with the sex offender.

We lock down the families of offenders, typically into poverty, stigma, and shame. We often deem victims to be ruined for life. We make pariahs of people who have made mistakes right along with people who plan and carry out murder and harm "in cold blood," rather than getting to the root causes of either type of offending behavior. And all too often, we lock up people who suffer from mental illness, even as we know we cannot punish the mental illness out of a person.

Could professionals learn something from those informal restorative justice sessions that could lead to better help for the real victims?

These women will never recover. That's just wrong.

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.

Lenore Skenazy says sex offender laws are "Taliban-esque"

Well, aren't they? Lenore tells the story of two young men who had sex with underage girls, faced the same judge, and ended up on the registry for life. Zach Anderson's story was given front page coverage by the New York Times. That gets noticed. (I blogged about Zach Anderson's story here.)

At last America is realizing how Taliban-esque our sex offender laws can be.   

Ordinary teen behavior, sex!, has become a crime punished harshly.

Judge Dennis Wiley, the same judge who sneeringly told Anderson, "That seems to be part of our culture now: meet, hook up, have sex, sayonara. Totally inappropriate behavior,” presided over Yoder’s trial and sentenced him to the same draconian fate. 

Is he sentencing the guy for having sex or for hooking up online?

Yoder, like Anderson, is now officially a sex offender, for life. As such, he cannot be around anyone under the age 18, as if he were some insatiable child molester. That includes his younger brother and sister, whom he has not seen since he was sentenced. His devastated family has been torn apart. 

Families torn apart are all too common when sex offenses are involved, even when the offense used to be something for which parents grounded the kids and law enforcement was only rarely involved.

According to Fox28: "I know I'm not a sex offender," said Yoder. "Had I known her age, I never would have even talked to her." 

Notice the young man's words: "I'm not a sex offender."

Before the advent of the sex offender registry, he would have been a guy with poor judgment. With the registry, he needs to defend himself against not only the tsk-tsking about his poor judgment but against the charge of being a sex offender.

There is no crime of sex offense. That is not what he is charged with but that label has been given such Psycho-music accompaniment that being labeled a sex offender is worse than being known for the crime--having sex with a willing partner--that got him there.

Yoder was a teen who had sex with another teen—one he thought was his own age. If there’s a predator in this story, it’s the judge who keeps ruining the lives of these young men. 

The registry keeps us focused on imaginary predators while the real danger lies in a criminal justice system wearing the sheep's clothing of protecting children.

That is the power we give judges and prosecutors with our all-encompassing definition of what constitutes a sex offender. There are hundreds of thousands of people on the sex offender registry who bear no resemblance to the monsters we fear. Of the 800,000 registered sex offenders, roughly a quarter of them were added as minors, because young people have sex with other young people. 

That is 200,00 young people, "roughly." Pretty damned rough, if you ask me.

The sex offender list is a dungeon we can throw people in on the slightest pretext. Politicians and grandstanders exhort us to fear those on it. But it’s a lot scarier to think about how easy it is for our sons to end up on that list themselves.

That is my emphasis added all over the place. I'm sure Lenore won't mind.

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.

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.

"some of the most lethal terrorists are prosecutors"

Norm Pattis talks about prosecutors employing dark arts at trial:

Trial, some say, is a search for the truth. That’s specious tomfoolery. In fact, trial, at least a criminal trial, is guerilla warfare. Some of the most lethal terrorists are prosecutors. Fear and the dark arts of intimidation are common tools.

Fear and intimidation, indeed. Only a small number of criminal cases ever go to trial because of those dark arts. Who would risk being tried on the most severe of charges and a much longer sentence when the plea agreement offers lesser charges and a shorter sentence? After seeing the prosecution's enormous power to force the outcome it wants, not many will risk a trial.

The dark arts of witness intimidation pit prosecutors against defense counsel. The accused wants to avoid prison and a felony record. The government wants testimony sufficient to convict as many as possible. 

A grant of immunity from prosecution is a homerun for the defense, but the government doesn’t like giving free passes to those it believes to have broken the law. For one thing, jurors are wary of immunity agreements, especially in white-collar cases. “How come he gets to break the law with impunity?” are not the words a prosecutor wants to hear about a witness. 

So an elaborate charade is constructed, a game designed and intended to keep jurors from learning as much of the truth as possible. The government enters into cooperation agreements with those prepared to testify against co-conspirators. 

Here’s how it works: A witness pleads guilty, typically to reduced charges. But his sentence is deferred until after the main event. ... 

Deferring sentence permits the government to deny that the witness has been promised leniency for his cooperation. The witness is reduced merely to saying that he hopes the judge will take into account his assistance to the government when his own sentencing occurs.

Read the whole thing. Pattis outlines an actual trial to show how it works.

In other words, the government, not the jury, decides what is and is not true; those who disagree with Uncle Sam get clobbered.

When the prosecution routinely forces a plea agreement and bypasses any trial, the prosecution rarely has to prove its case.

So, yes: the prosecution decides what is true.

Ohio Supreme Court argues that the registry can be cruel and unusual punishment

From Nebraskans Unafraid, comes a link to a video of arguments in the Ohio Supreme Court about whether a young man convicted of a sex offense could be excluded from the sex offender registry.

He was 21 when he had consensual sex with a 15-year-old girl. His public defender argued that a psychologist had found that he is "not a sex offender" and so should not be required to register. The psychologist had evaluated him using the Static 99, a checklist that purports to show recidivism risk. It is not a psychological evaluation.

The Court clarified with her that he is a sex offender because the law and his conviction are what make him a sex offender, not his psychological condition nor his recidivism risk no matter the level.

The Court gently nudged the attorney along the way to saying that the registry would be cruel and unusual punishment. The Ohio Supreme Court had already found that the registry is punitive in nature, so arguing whether the punishment of being on the registry is proportionate is a natural question.

When the prosecutor blithely said that the young man does deserve to be on the registry for having sex with a 15 year-old, the justices asked him to explain why the registry should not be considered cruel and unusual punishment. His answer? There are cases of worse punishment that the courts have said are not cruel and unusual. 

That's like telling a kid to eat his peas even if he doesn't like them because the kids down the street have to eat brussel sprouts which taste even worse.

Strange arguments from a public defender who seemed unclear about what a sex offender is (hint: it is not something discovered by a psychologist) and strange arguments from the prosecutor who said the young man should be on the registry because, well, because the law says he should. 

Watch the video, though, and you'll be encouraged by the questions and reasoning followed by the Ohio Supreme Court justices.

two stories of witnesses protecting the bad guy

Two interesting stories about witnesses to a crime.

In the first story, a young man was murdered and no witnesses are coming forward with information.

“Detectives are not receiving much, if any, cooperation or true and accurate information from neighbors and subjects they believe, through their investigation, to be witnesses,” Sgt. Chris Snyder wrote in a news release Thursday, Jan. 8.

Snyder urges anyone with information to come forward. 

It must be frustrating to know there are witnesses who could help to solve a murder but that none of them are willing to help find the killer.

The second story, from Radley Balko, tells of a cell phone video serving as a witness, saving a man from a conviction.

In order to help out his family and earn a quick $50, [Douglas] Dendinger agreed to act as a process server, giving a brutality lawsuit filed by his nephew to Chad Cassard as the former Bogalusa police officer exited the Washington Parish Courthouse. 

The handoff went smoothly, but Dendinger said the reaction from Cassard, and a group of officers and attorneys clustered around him, turned his life upside down.

That group of officers and attorneys did not react well to Dendinger serving the papers. Balko says:

He was not only arrested, he was also charged with two felonies and a misdemeanor. A prior drug charge on his record meant he was potentially looking at decades in prison. Seven witnesses backed up the police account that Dendinger had assaulted Cassard.

Seven witnesses to the crime of false reporting. 

A cell phone video of Dendinger handing the papers to Cassard proved that all seven witnesses lied.

Balko:

But here’s my question: Why aren’t the seven witnesses to Dendinger’s nonexistent assault on Cassard already facing felony charges? Why are all but one of the cops who filed false reports still wearing badges and collecting paychecks? Why aren’t the attorneys who filed false reports facing disbarment? Dendinger’s prosecutors both filed false reports, then prosecuted Dendinger based on the reports they knew were false. They should be looking for new careers — after they get out of jail.

The connection between the two stories? In both, the bad guy is protected by his community.

When cops protect bad cops, and often with no consequences for doing so, why are we surprised when the broader community does the same?

civil disobedience

Michelle Alexander, in The New Jim Crow,  suggests that if all defendants declined plea agreements and opted for trial, the criminal justice system would grind to a halt under the weight of all those trials. Prosecutors would be overwhelmed by the work needed to prove their cases beyond reasonable doubt.  

Imagine what would happen if all sex offenders refused to register.

One after another, offenders would be charged with failure to register and packed off to prisons that are already overcrowded. That's the part of the scenario that would be hard to live with. On the other hand, since the registry makes it difficult for sex offenders to find employment, many of them do have time on their hands.

A few years of conscientous objectors, courts wheezing under the load of FTR cases, voters being hit with the expense of building new prisons...maybe this would deal the fatal blow to the registry.

Maybe not.

The part I can guarantee is that the incidence of sex offenses would not increase.

prosecutor's son facing child porn charges

The son of a county prosecutor is facing charges related to child pornography. Four other men are also charged. The Dayton Daily News says,

“Defendants did knowingly conspire to make, print, publish and cause to be made, printed or published any notice advertisement seeking and offering to retrieve, exchange, buy, produce, display, distribute and reproduce any visual depiction, the production of which visual depiction involved the use of minor engaging in sexually explicit conduct,” according to the indictment.

Those are serious charges though it sounds as if they are not charged with actually creating child porn or molesting anyone. It sounds as if the men published ads offering to do all of that, which is exactly what law enforcement does when they set up an online sting: they make offers to do something illegal -- provide sex with minors, for example -- and then charge the fools who respond.

If the county sheriff had placed the child porn ads and let fools respond, that prosecutor would now be working late hours on all the resulting cases instead of telling the world about his son's difficult childhood.

In this case, Butler County (OH) Prosecutor Michael Gmoser tries to explain how his son could have come to be involved in such sordid activities.

On Monday, Michael Gmoser told his staff that after years to of trying to conceive, he and his wife, Olga, adopted a “special 7-month-old child.” 

“He was perceived to be highly intelligent,” Gmoser said. “But we knew we would always have to deal with Jason on his own terms.” 

Jason Gmoser developed attachment and development disorders that made it difficult to bond with his parents. 

“To say he was a difficult child was an understatement,” Michael Gmoser said. 

Michael Gmoser said his son did excel at science and computers and attended Miami University, but had to drop out.

“He went downhill with depression, self esteem issues and a horrible weight problem … he became reclusive,” Michael Gmoser said. 

He added there were several diagnosis to explain his son’s condition, including Asperger syndrome and bipolar disorder.

Yes, a very sad case. All of that might (or might not) help explain how the prosecutor's son came to make the choices that led to his arrest.

In 2010, Jason Gmoser was admitted to the psychological ward of a local hospital after he had a psychotic episode, with Jason saying he had inappropriately touched a child. 

An investigation concluded Jason had “touched the leg of this young fellow,” Michael Gmoser said, but Jason believed he had done something terrible. 

The mother of the boy sought and received a protection order against Jason, according to Michael Gmoser. 

Jason Gmoser was then taken to Texas to one of the best facilities money can buy, Michael Gmoser said. 

“But money can’t buy everything,” Michael Gmoser said, pausing and appearing to hold back tears.

Nope. Money can't buy everything.

Now that the county prosecutor has to watch his own son go under the steamroller that is our criminal justice system, one can't help but wonder if he will appear to hold back tears when other sex crime defendants explain how circumstances could have led to their crimes.

I don't wish this on anyone, not even someone who could learn valuable lessons from the experience.

Disney World, running amok with perverts; or, reading between the lines

Theme park employees from Disney, Universal Studios and SeaWorld caught in sex stings, the headline says.

Thirty-five Disney employees arrested in sex stings since 2006, that is. Thirty-five arrested over a period of nine years. Thirty-five out of 300,000 employees during those nine years.

Thirty-two of the 35 have been convicted. Well, of course they have! The other three cases will almost certainly end with a conviction, too. The article does not tell us how many of these people went to trial though I imagine the number is close to zero. Most prosecutions--not only for sex offenses--end with plea agreements.

A justice system where the prosecution never has to prove its case is no justice system at all.

The article provides details about some cases. In one case, a man was found in possession of illegal images that included "multiple scenes of nude prepubescent children engaging in sexual activity with adults and other children". For other cases, the illegal images are described only as "child porn."

Why the difference? I have a sneaking suspicion that some cases have more interesting, more shocking details than others. It simply isn't shocking to hear that someone was in possession of video that a teenager made of himself and uploaded himself. News media doesn't like to explain that the legal definition of child porn also includes images of teenagers, made by teenagers. When people hear about child porn, they assume it means images of small children being raped. What news outlet, hungry for advertising dollars, wants to get in the way of audience imaginings that will bring them back for followup articles?

Some of the arrests were of men who met a kid online and eventually tried to meet in person for sex. Where do you suppose these men were hanging out online that they met kids eager for sex? Nickelodeon? PBS Kids?

Let's think. If the men had been trolling websites meant for children, what reporter would fail to lead with that detail? Look at the headline above: It doesn't leave it at theme park employees; it says Disney, Universal Studios and Sea World. If the websites had been those intended for children, the headline would have included that juicy tidbit. But it doesn't and that tidbit doesn't show up in the article, either. We are probably safe in assuming that the men were using adult websites.

But what children hang out on adult websites looking for sex? As it turns out, it seems there weren't any children looking for sex. There were only law enforcement officers pretending to be children. Is it possible that some cases did involve real children? Let's go back to the question about what news outlets would like to include in their stories. If an actual child isn't mentioned in the story, it is safe to say there were no actual children involved.

So: we have men spending time on websites meant for adults, in conversation with adults pretending to be children. Who starts those conversations? Who brings up the possibility of sex? If the pretend child introduces the idea of sex, that is very different from an adult approaching children in a chat room for children and asking for sex. The reporter does not tell us who introduced the idea of sex with the minors.

Now that Disney has been named in a headline as an employer of sex offenders, what does Disney have to say about it?

In a statement to CNN, Disney spokeswoman Jacquee Wahler said, “Providing a safe environment for children and families is a responsibility we take very seriously. We have extensive measures in place, including pre-employment and ongoing criminal background checks and computer monitoring and firewalls. 

Background checks, hey? If that means the kind of background check that would have exposed a job applicant as a registered sex offender...that must mean that none of these 35 were registered sex offenders. Once again, we see that arrests for sex offenses most often are of those who are not on the registry. Once again, we see that the registry protects no one.

“The numbers reported by CNN represent one one-hundredth of one percent of the 300,000 people we have employed during this time period. We continue to work closely with law enforcement and organizations like the National Center for Missing and Exploited Children as we constantly strengthen our efforts.”

Huh. Now that Disney has been named in a headline as an employer of sex offenders, they have no choice but to cooperate with law enforcement. Imagine the headlines if they did anything else.

What is said in a news article can be interesting. What is not said can be even more interesting.

police want to force a 17-year-old boy's erection so they can photograph it

For the last week, the Internet has been chewing up a story about child pornography. Radley Balko sums it up:

...the efforts of officials in Northern Virginia to forcibly induce an erection in a teenage boy in order to pursue “sexting” charges against him has deservedly provoked national outrage. ... Manassas police have since backed down and now say that they won’t execute the warrant. Of course, there remains the problem of why the warrant was issued in the first place. No one in the Manassas Police Department, the office of Commonwealth’s Attorney Paul Ebert or the judge who signed off on the warrant was able to see what the rest of the country saw, here: an outrageous abuse of power and an unfathomable violation of this kid’s privacy. The Commonwealth of Virginia was prepared to create child porn in order to prosecute a 17-year-old kid for sending videos of himself to his then-girlfriend, who was 15 years old.

Seems clear: an outrageous abuse of power and an unfathomable violation of this kid's privacy.

Also clear: in the prosecution of a child pornography case, they were going to produce child pornography. 

As usual, it is a good idea to read all of Balko's piece. He talks about several other crazy cases in which teens landed in huge trouble for playing doctor while texting.

The trend is toward dragging more minors into the justice system.  

In an effort to register their contempt for child exploitation and sex crimes, lawmakers have defined sex offenses so broadly that a teen sending an explicit photo to a boyfriend or girlfriend can qualify. Typically, when critics point out that a new law could be used in ways lawmakers never intended, supporters point to prosecutorial discretion. They argue that it’s ridiculous, even insulting, to suggest that a prosecutor would twist a law to bring charges against someone in ways the law clearly never intended — or that a judge would allow it. That police, a prosecutor’s office and a judge all saw nothing wrong with forcibly inducing an erection in order to pursue charges against a 17-year-old kid puts the lie to that argument.

Sex isn’t the only context in which we’re ruining kids under the pretense of saving them. We’re protecting kids from drugs by arresting and jailing them for marijuana possession. We’re protecting them from the (mostly nonexistent) problem of school violence by assigning law enforcement to patrol middle and high school campuses. The presence of law enforcement means that kids who were once reprimanded, assigned detention or possibly suspended for infractions such as fighting, throwing food or truancy are now fed into the criminal justice system.

I have written about how casually cruelty is directed at the children of sex offenders, here, here, and here. As demonstrated in the cases Balko discusses and in a 2010 prosecution of sexting minors, the cruelty can be even more astounding when minors are the offenders.

More on the Virginia case from Robby Soave at Reason, from Shelly Stowe at Justice For All, and from Lenore Skenazy at Free Range Kids here and here.

the effect of violence on children and the need to do something about it

In an opinion piece in the Omaha World-Herald, Nebraska US Attorney Deborah Gilg talks about the need to recognize how violence affects children. She writes:

More than half of America’s children and teens are in some way exposed to violence in their homes, schools and neighborhoods every year, according to a 2009 U.S. Department of Justice study. Many are victims of violence themselves, but many more will witness violent crimes or share the trauma when their families, school friends or neighborhoods are targets of violence and abuse. Unfortunately, many of these young people will experience violence from multiple sources, compounding the trauma and its effects. 

The consequences of this kind of exposure can be difficult to measure, but the harm is real.

We know that children and teens exposed to violence are more likely to experience anxiety, depression and post-traumatic stress. They are more likely to abuse drugs and alcohol. They are also more likely to fail at school, be absent from school and experience learning difficulties. These children are also more likely to enter into, and stay in, abusive relationships. They are also at higher risk of going on to commit crimes themselves.

It comes as a surprise to find that I agree so strongly with a US Attorney. Witnessing violence or being in the middle of it can have long-lasting effects on children. We should do more to protect children from violence.

A good place to start for all of us is by listening to young people and being engaged in their lives. 

Well, now...that seems a tepid approach to the problem she describes. Wait, though. She has more:

If you’re interested in learning more about the effects of violence on children, the U.S. Department of Justice has produced a video series Through Our Eyes: Children, Violence, and Trauma, available at www.ovc.gov/pubs/ThroughOurEyes/index.html. The DOJ also has launched the Defending Childhood initiative to address the exposure of America’s children to violence as victims and as witnesses.

A video? I would have preferred a more robust response but she is a busy woman. Maybe she doesn't have time to think of more effective ways to lessen the violence that surrounds children. If it isn't too presumptuous of me to think that I can help, I came up with a few ideas. Maybe she can use her powerful voice as US Attorney to promote ideas that would have a more immediate impact on reducing violence than, say, a video.

Stop shooting the family dog. When I was small, I witnessed a neighbor drive over and kill one of our dogs. It was an unfortunate accident but it was a terrible thing for a small child to see. Imagine how terrifying it must be for children to see a law enforcement officer--someone who is supposed to protect and serve--shoot their family dog. 

Stop sending SWAT teams into homes where children are present when that level of force is not necessary. People, including the children, have been hurt and killed in those raids. Watch this video of a SWAT raid in Columbia MO and try to imagine being a child in that home. Radley Balko estimates law enforcement agencies carry out over 100 SWAT raids every day across the country. How many children are affected by violence in their homes perpetrated by law enforcement?

Stop putting so many people in prison. The United States has 2.2 million prison inmates. According to Families Against Mandatory Minimums (famm.org), one in 28 children have a parent in prison. This doesn't count the kids who have a sibling or other family member in prison. How does that affect children? 

Stop relying on mandatory minimum sentences to push a defendant into taking a plea agreement and start proving your cases in court. Introducing mandatory minimum sentences has increased sentence length even for crimes that do not carry a mandatory minimum. Tearing families apart is traumatic for all family members. Tearing them apart for longer than necessary is cruel. 

Children in homes with a drastically reduced income, children with a parent struggling to be everything to everyone--prison spouse, mother and father--in the midst of his or her own grief, children grieving for the family member in prison, children unable to visit the prison because distance and expense are too great...these children suffer a violence that the US Attorney does not address. 

Jacob Sullum on misguided child porn laws

In the Washington Post, Jacob Sullum talks about child porn laws.

The legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. In a 2009 analysis, federal public defender Troy Stabenow shows that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years.

True. One need not look far or long to find cases in which actual molesters are given much less prison time than those convicted of child porn offenses.

Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years — the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. In practice, since the Internet nowadays is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking.

Hmm. People in prison for receiving images downloaded without their knowledge through peer-to-peer file sharing may want to quibble with Sullum when he implies that the download must be deliberate in order to qualify for the charge of receiving. I would also be willing to bet that many, many inmates doing time for possession or receipt had no idea that Web browsers automatically make copies of visited sites. Most people do not understand the caching of temporary internet files.

Sullum discusses the probable reason for increasingly severe sentences for child porn offenses.

While the original justification for criminalizing possession of child pornography was that demand creates supply (an argument that has been weakened by the shift to free online distribution), the escalation of penalties seems to be driven largely by the assumption that people who look at these images are all undiscovered or would-be child molesters. ...

Even allowing for the fact that many cases of sexual abuse go unreported (as indicated by victim surveys), it seems clear that some consumers of child pornography never abuse children. “There does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending,” says Karl Hanson, a senior research officer at Public Safety Canada who has co-authored several recidivism studies.

It is clear that those convicted of child porn offenses are doing time for what the courts and legislators fear. Courts fear the defendants molested children but were never caught and courts fear the defendants want to molest children if they haven't already.

Here's the thing: All the research about whether child porn consumers did or didn't molest children--as interesting and reassuring as it can be--should have nothing to do with the sentences handed down for non-production child porn offenses. If the defendant molested children, the prosecution should find the evidence to prove that. Until then, his offense is downloading or possessing illegal images and nothing more.

In fact, it is not clear why mere possession of child pornography should ever be grounds for locking people in cages. The Supreme Court’s main rationale for upholding the ban on possession was that demand for this material encourages its production, which necessarily involves the abuse of children. But this argument has little relevance now that people who look at child pornography typically get it online for free. Furthermore, people who possess “sexually obscene images of children” — production of which need not entail abuse of any actual children — face the same heavy penalties. “They are not protecting a single child,” Boland says. “They are throwing people in prison for having dirty thoughts and looking at dirty pictures.”

Our prisons are already overcrowded; now is a good time to reconsider child porn sentences because the number of people doing time in prison for thoughts and pictures is growing.  We do not put people in prison for imagining violent robberies or for owning a photo of a violent robbery. The parallel is obvious.

So is the insanity of punishing people for crimes for which they have not been charged.

audit reveals errors in national DNA database

The FBI maintains a database of DNA samples, taken from convicts, suspects, and crime scenes. A recent audit showed errors in nearly 170 profiles. In a database that holds 13 million profiles, 170 seems a small number though the importance is crystal clear to those whose cases may have been affected.

To those who have been exonerated or convicted because of DNA evidence, the realization that DNA evidence isn't infallible must be mind-blowing. How does it feel to sit in prison wondering if a typo or bad handwriting were part of the reason for your conviction? 

The discoveries, submitted by the New York City medical examiner’s office to a state oversight panel, show that the capacity for human error is ever-present, even when it comes to the analysis of DNA evidence, which can take on an aura of infallibility in court, defense lawyers and scientists said.

In a world where the majority of defendants accept a plea agreement, the prosecution doesn't need to prove anything to a jury. When the prosecutor can pin a defendant between a mandatory minimum sentence and a plea agreement--and going to trial can add years to one's sentence--the prosecution can be confident that anything they say about DNA evidence will not be challenged.

A prosecutor's best tool is supposed to be evidence that the defendant committed this particular crime. Instead, his best tool is the mandatory minimum sentence.

This is not a reliable path to justice.

why I admire defense attorneys

Radley Balko interviewed longtime Louisiana defense attorney Sam Dalton for an August 2013 article on prosecutorial misconduct. As his final Huffington Post piece (before moving to the Washington Post), Balko published the whole Dalton interview.

Dalton is something of a legend in Louisiana courtrooms. He has just entered his seventh decade of practicing law. In that time, he has defended more than 300 death penalty cases. Of those, he spared 16 defendants from execution -- this in a state that's rather fond of executing people. He has also been a voice for civil rights, he chartered a model public defender system, and he's currently leading a charge to impose some accountability on Louisiana's more egregiously misbehaving prosecutors. My favorite thing about him: Outside his office door there's a "welcome" mat that reads: Come back with a warrant.

Talking about why prosecutors still try to avoid handing exculpatory evidence over to the defense, even though it has been the law for 50 years, Dalton said:

[Y]ou have to look at what the system rewards. The best way to get attention for yourself as a prosecutor is to put a lot of people in jail. There's no votes to be won for deciding not to prosecute someone in the interests of justice. No prosecutor runs for higher office by touting the charges he didn't bring, or the fairness he showed to those accused of terrible crimes. You put those two problems together, and you get a culture that encourages deliberate indifference, especially once they're publicly invested in a particular suspect. 

Anyone who has watched someone go through the meat grinder of our justice system knows this already. It is a sad time when prosecutors fear being accused of being fair. We also know the Department of Justice is publicly invested in a particular type of suspect--drug offenders for one, sex offenders for another. These offenses are easy to detect, easy to prosecute, easy to convict. I would note, too, it is easy for law enforcement to entrap someone for these offenses.

Now that Colorado and Washington have legalized marijuana for recreational use, it seems clear that public opinion will support further legalization. Perhaps that is why federal law enforcement has increased its investment in catching those who download child pornography--easy pickings will make it possible for a prosecutor to continue to boast the number of convictions on his watch.

I think it's a mistake for a defense attorney to define success by how many acquittals he wins. I define it by whether I've forced the state to do its job, and to do it fairly and in compliance with the Constitution. 

But let me say something about convictions. Convictions are important. And it's important for attorneys to represent even clearly guilty people. There's the obvious reason -- that everyone deserves a fair trial. 

But here's a less obvious reason: Ask yourself, what contribution do convictions make to criminal case law? The answer is that they're responsible for almost all of it. When you're acquitted, you don't appeal. Only convictions are appealed. And it's on appeal that you argue that your client's rights were violated. Appeals are where the appellate courts enforce the Constitution. At least where they're supposed to. It's only because someone was convicted that we have the rules in place today that protect the accused. There's a kind of beautiful symmetry to that. It's because of convictions that we have the rules that protect the innocent.

I had not thought before about the role convictions play in the important battle to change laws. Dalton makes me see them differently, though I have to wonder if Dalton overlooks the fact that when prosecutors have been given the power to pin a defendant between a plea agreement and a mandatory minimum sentence, convictions lose that importance. 

Plea agreements often require the defendant to waive his right to appeal. No appeal means no way to argue that rights were violated, even when it is clear that a plea is less about admitting guilt than about avoiding the mandatory minimum.

Dalton talks about punishment:

We focus too much on retribution, and too little on protecting society from harm. 

Let me give you an example. Two men commit an armed robbery on the same night. The first man is a father of four. His family is about to be evicted. Or if you want to make him less sympathetic, let's say he's a drug addict who needs money to buy his next fix. He's nervous, he's sweaty. He's desperate, and he's panicky. He approaches his victim and roughly accosts him. He puts his gun to the victim's head. He's screaming profanities. He screams out for his victim's wallet, then screams louder and threatens the victim for moving too slowly. He takes his money and runs off. His victim is terribly frightened. 

In the second scenario, our mugger is calm, cool, and methodical. He approaches his victim from the front, puts a light hand on the victim's back, and slowly and unemotionally explains that he has a gun in his coat pocket. He tells his victim that if he hands over his wallet, no one will get hurt, and they can both be on their way. The victim hands it over. The mugger walks off. The victim is angry at just having been robbed, but he isn't terrified. And he was never in real fear for his life. 

Which of the two armed robbers is likely to get the longer sentence? Almost certainly the first one. Which of the two is the bigger threat to society? Unquestionably the second one. In fact, the second one is not only a likely career criminal, he's more likely to actually kill someone. The first one is scared because he knows he's doing something wrong. He feels some empathy for his victim. He's committing a crime of necessity. That isn't to say it excuses him. But his aggression comes from fear. The second mugger is incapable of empathy, or has learned to turn it off. He's cold-blooded. 

So you see we impose punishment based on fear and a desire for retribution, not based on rational evaluations of what crimes and criminals are most dangerous. [My emphasis.]

Sex offenders and their families know this well. The majority of those convicted of sex offenses are unlikely to commit another sex offense and yet they are sentenced according to the fear engendered by the term sex offense instead of any rational evaluation of danger.

Punishment should include alternatives to incarceration because incarceration is often a training ground for criminals and because the United States prisons are overcrowded. Another reason to avoid incarceration when possible is to avoid giving more people power over others.

Though Dalton is talking about judges and prosecutors, his warning also applies to correctional officers:

Power is insidious. It will creep up on even the most decent people. Always be aware of that, and be vigilant against it.

Read the whole interview. Defense attorneys take a lot of heat for their part in letting criminals go free but they stand between us and unjust convictions. I have great admiration for attorneys who defend the obviously guilty and especially those obviously guilty of terrible crimes.

Obvious guilt should be defended just as fiercely as innocence is.

speak up; speak out

My Christmas gift to you: a call for common sense. 

In 2006, Congressman Robert Scott of Virginia begged Congress to think carefully before the vote on the Adam Walsh Act.

[T]he crimes committed against the children named in the bill, those not named, and the suffering of their families is a tragedy for all of us, yet this does not release us from the responsibility to legislate on a sound and reasoned basis. I believe the situation is serious and grave enough to warrant a bill that is based on approaches that have been proven to reduce this scourge in our society, not on sound bites that will merely pander to our emotions.

You already know that pandering to our emotions carried the vote. Nevertheless, it is refreshing to hear his words even years later.

Now, with no more basis than we had before, just the name of the crime and the continuing political appeal of appearing tough on sex offenders, we are again greatly increasing penalties with more death penalties and increased mandatory minimums, including more mandatory minimums for teenagers having consensual sex. ...

 Rather than taking such cases [teenagers having consensual sex] out of the bill, we are told that we should simply trust the prosecutor.

He mocks the idea that mandatory minimums are a good idea because mandatory minimums require blindly trusting the prosecutor.

Don't trust the Sentencing Commission's discretion to set guidelines designed to reflect what sentence should be based on the facts and circumstances of the case or the background and role of the offender, rather than simply the name of the case, the name of the provision. And don't trust judges to look at the facts and circumstances of the case, the offender's role and background and guidelines to arrive at an appropriate sentence after hearing all of the evidence at trial. Take the discretion away from these officials and trust prosecutors to decide when to ignore law requiring a 10-year mandatory minimum sentence. And trust there are no prosecutors who can be affected by issues such as local political influences.

He points out the obvious:

The problem with mandatory minimum sentences is that they defy common sense. If you deserve the mandatory minimum, you can get it. If it violates common sense, you have to get it anyway. 

Congressman Scott made sense. Stopping to consider how the Adam Walsh Act, once enacted, would play out could have prevented a lot of heartache in the years since. Instead, Congress stuck its collective fingers in its collective ears and passed the Adam Walsh Act.

The good news is that Congressman Scott spoke out. One of these days, another Congressman or Senator will have the courage to speak out on behalf of common sense. Perhaps more than one and perhaps more than one at a time. 

Senators Rand Paul and Patrick Leahy have proposed legislation that would reduce the impact of mandatory minimum sentencing, an important step in the right direction.

In England, something even more spectacular happened. 

Helen Reece, a reader in law at the London School of Economics, called on Theresa May, the Home Secretary, to relax rules which automatically ban sex offenders from caring for children, saying that this could breach their human rights.

We must continue to speak out. You never know when something we say will prove to be the impetus for real change. 

Former offenders who speak up at city council meetings to protest residency restrictions, who speak to state legislators about sex offender laws, who explain to neighbors the effects of the sex offender registry--those former offenders set great examples of courage for the rest of us.

They are to be admired and emulated. Speak out and be heard. 

broadening the definition of "child rape"

A Canadian cop wants to change the way we talk about child pornography:

Cops who hunt child predators say the term "child pornography" needs to be retired and be given a more apt term, such as "child rape." 

"It's not a child lying on a beach naked, it's a child that is being actively sexually assaulted. It is the rape of a child captured on image or video. It's a crime scene," said Detective Chris Purchas, a lead investigator with the Toronto Police told a news conference in Dartmouth this week.

This is all kinds of silly. 

If we prosecuted only those people who looked at images of child rape, my husband would be home with me now. If this detective means that a photo of a naked child is the same as child rape, he doesn't understand what rape is. 

It is hard to believe someone thought he would be a good spokesman.

He is almost onto something when he says, It's a crime scene. Child pornography sometimes is a photo of a crime scene. Don't get carried away, though. Remember it is a photo of a crime scene. It is not the crime itself. And remember that not all child pornography includes images of small children and not all child pornography images are of crime scenes.

Do not cheapen the horrifying abuse endured by some of these children by equating the photo with the horrifying abuse.

Hunting "child predators" happens in a crazy world.

another judge gets it

A federal judge in Ohio shows mercy by refusing to sentence a defendant according to the sentencing guidelines. Twice.

Appalled at the harsh sentencing guidelines for child pornography offenses, a federal judge sentenced an ailing, 67-year-old defendant to only one night in jail — and when an appeals court ordered the defendant resentenced, the judge imposed the same punishment. 

“If I have got to send somebody like [this man] to prison, I’m sorry, someone else will have to do it,” said U.S. District Judge James L. Graham of Columbus, Ohio. “I’m not going to do it.” ...

The unusual act of judicial disobedience by Graham — who was appointed to the bench 27 years ago by President Ronald Reagan — is the latest protest of sentencing rules for pornography possession, which other federal judges have described in opinions as “irrational” and “bordering on witch hunts.” 

...Graham declared the guidelines were seriously flawed because, among other things, they require an enhanced sentence if a computer is used — even though, as Graham pointed out, a computer is nearly always used.

As far as I can tell, the defendant is pleading guilty to possession, a charge that does not carry a mandatory minimum. Sentencing guidelines are advisory, not mandatory.

The defendant has already had two strokes and his wife is in poor health. The judge said he worried that the defendant wouldn't get sufficient health care in prison. In another article, the prosecutors blithely brush aside those concerns:

The 6th Circuit pointed out that prisons have doctors and that [the defendant] has four adult children living near him who could help take care of his wife.

The prison where my husband is incarcerated has no doctor on staff. I do not know if that is usual.

“We’re not of a belief that someone should get a senior discount because of their age,” said Fred Alverson, a spokesman with the U.S. Attorney’s Office.

Well, that's certainly true. Federal prosecutors have been busy putting elderly people in prison and keeping others there until they are elderly--the majority of them for non-violent crimes.

The population of aging and elderly prisoners in U.S. prisons exploded over the past three decades, with nearly 125,000 inmates aged 55 or older now behind bars, according to a report published Wednesday by the American Civil Liberties Union. This represents an increase of over 1,300 percent since the early 1980s. 

More than $16 billion is spent annually by states and the federal government to incarcerate elderly prisoners, despite ample evidence that most prisoners over age 50 pose little or no threat to public safety, the report said. Due largely to higher health care costs, prisoners aged 50 and older cost around $68,000 a year to incarcerate, compared to $34,000 per year for the average prisoner. 

The feds want to put this man in prison, putting his health and that of his wife at risk, and they want taxpayers to pay the increased cost of incarcerating an elderly man in poor health. Why?

In the article linked above, the prosecutors explain that

...he was participating in a global market with millions of members that “constantly demands that more children be abused in order to create new images.” 

“Child pornography images themselves are their own currency,” prosecutors wrote. “Possessors are the engine of demand that fuels the molestation of children to create more supply.”

Note that prosecutors do not have to prove these assertions. They don't have to prove that this man's online activities demanded new images or that he wanted more children to be molested. They are allowed to make broad accusations about a general practice of looking at child pornography as if it naturally applies to everyone charged with possession. No one challenges them.

Welcome, Judge Graham, to the ranks of those who recognize that sentences for child porn users are not proportionate to the crime. There is probably a large number of judges in that group. If only more of them would stand up and publicly acknowledge the wrongs done to those who look at pictures.

Bordering on witch hunts, indeed.