how bad law happens

Virginia State Sentator Tom Garrett proposed legislation to protect the children.

Garrett recently introduced legislation to amend and re-enact Virginia’s notorious crimes-against-nature statute, which court rulings have rendered a nullity. The bill renews the prohibitions against oral or anal sex with minors or in public, while stipulating that such acts between consenting adults in private do not violate the law.

Garrett wanted to punish adults for having oral or anal sex with minors. I don't know why existing laws that prohibit sex between adults and children don't apply to oral and anal sex; perhaps legislators always do things the hard way in Virginia. 

Protecting the children is a noble objective, except when protecting the children isn't the result.

Virginia law lets 17-year-olds marry. But if those 17-year-olds then had oral sex, under Garrett’s original bill they would be committing felonies.

Legal to marry but illegal to have a kind of sex that would be legal for older married couples or for older unmarried couples. 

Garrett's legislation also doesn't show much clear thinking about penalties. 

Genital sex between an adult and a 17-year-old remains a misdemeanor, but merely to solicit oral sex with a 17-year-old would be a felony.

How does legislation like this come about?

“I tried to draft the simplest bill possible,” Garrett wrote in an email to GayRVA.com. “I would be open to amendment, and may even amend it myself, to say that any act is only a crime when one participant or solicitor is an adult, and the other a minor. Honestly, the idea of outlawing acts between minors isn’t something I had contemplated...."

Contemplated? If Mr. Garrett had taken the time to contemplate his legislation, he may have noticed the obvious flaws. Instead, his fervor to protect the children kept him from thinking clearly.

A more cynical understanding would say that Mr. Garrett doesn't care about the children so much as he wants to be able to say he passed a law. Any law.

another reason for alternatives to incarceration

Prisons are training grounds for criminals.

If prison reformed criminals, illegal earnings once people were released ought to have gone down. But if prison was a "finishing school" for criminals, illegal earnings after serving time should have increased.

"Spending time in prison leads to increased criminal earnings," Hutcherson says. "On average, a person can make roughly $11,000 more [illegally] from spending time in prison versus a person who does not spend time in prison."

This is a good argument for shorter sentences, as well as an argument for punishment other than incarceration.

If we want criminals to leave prison and lead better lives, we need to consider what they are learning while in prison.

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. 

eighteen months in fed for pediatrician

A beloved D.C. pediatrician will spend 18 months in a federal prison for possession of child pornography--a compassionate sentence, compared to most. 

I blogged about this doctor when he was arrested. I pointed out that some doctors are asked by law enforcement to look at child porn images to estimate ages of the people in the images.

The difference between the prison-bound pediatrician looking at child porn and another doctor looking at child porn to estimate ages? The assumption is that one is turned on by the images and the other is not...not that we can tell for certain who is aroused and who is not...or who goes home after seeing the images to fantasize about what was seen. 

We simply cannot know what is in the mind of the viewer, no matter how entertaining it is to imagine that we can. 

At the Washington Post link, commenter DCDiva63 said,

I can't believe there are parents out there supporting this sick pervert. There is no excuse for possessing child pornography, period. I don't care how much good work he did for the community. He was in a position of trust, and this is the worst kind of exploitation and abuse of children. He was getting his jollies from it and that makes him beneath contempt.

Looking at images is the worst kind of exploitation and abuse of children? Really? I wouldn't be so sure. Thinking that looking at pictures is worse than anything else that could happen to children, is not rational.

I am glad that the doctor will serve only 18 months and I'm sorry he has to go to prison at all. It is good that his community is standing by him, recognizing that he broke the law but remembering that he was someone who did good.

Breaking the law does not--cannot!--negate the best part of a life.

sex crime investigator commits sex crime

A detective with the San Jose Police Department will serve a minimum of six months for communicating with a minor online, requesting and receiving a nude photo from the teen.

This detective worked in the sexual investigations division. Law enforcement officers are not impervious to temptation.

If this man has a family, they, too, will suffer from the extreme humiliation and exposure that comes with arrest for a crime like this. They will be as frightened by the circumstances and the consequences as any other family would be. Perhaps more. Law enforcement often go tougher on their own.

man burned alive after being accused--and cleared!--of being a pedophile

In the UK,

A man wrongly accused of being a pedophile was beaten unconscious, set on fire, and killed by two neighborhood "vigilantes."  

Investigators say the brutal violence in the Bristol, England neighborhood appears to be the result of a vicious rumor mill and a misguided police investigation. 

According to the Daily Mail, 44-year-old Bijan Ebrahimi was arrested in July after being accused of taking "inappropriate" images of neighborhood children. 

But after an investigation, police determined that Ebrahimi was actually taking pictures of kids he suspected of vandalizing his prized garden. 

Despite being released by police with no charges, the Daily Mail reports that two neighborhood men decided to enact their own justice against the disabled Ebrahimi. 

Just two days after his release, Ebrahimi was viciously beaten by two 24-year-olds. The two suspects then dragged the unconscious Ebrahimi outside, where they set him on fire and killed him. (via http://sexoffenderissues.blogspot.com)

This is what comes of instilling a fear of sex offenders and pretending that all sex offenders are dangerous.

If you are one of those who thinks there is a need for a publicly available sex offender registry, you share responsibility for this man's death.

If you are one who thinks sex offenders are to be feared, you share responsibility for this man's death.

If you are one who doesn't question why we have a sex offender registry, you share responsibility for this man's death.

When we encourage an unreasoning fear--and that is what the registry does--vigilantism is a natural outcome. When we force hundreds of thousands of people to register, pretend they are dangerous, tell them where they can and cannot live, push them to the margins of society, it is a natural outcome that their lives will be in danger from vigilantes.

Shame on those who support the registry.