thinking about Dennis Hastert and his curious sentence

Dennis Hastert, former Speaker of the House, was sentenced today to 15 months in federal prison for structuring bank withdrawals so as to sidestep reporting requirements. It isn't illegal to withdraw cash in amounts less than $10,000 but it is illegal to do that in order to keep from being noticed by the feds.

Hastert was making the withdrawals so he could pay a man $3.5 million. He paid $1.7 million before the federal investigation into his withdrawals put a stop to the payments.

Why did he owe $3.5 million? When he was a high school wrestling coach, Hastert molested a boy and, several years ago, Hastert agreed to pay him that amount.

Jacob Sullum, at Reason.com, questions why the government does not see the $3.5 million as blackmail.

...Hastert was paying Individual A, who ultimately received $1.7 million of the promised $3.5 million, to keep their encounter a secret, fearing that other victims would come forward once Individual A made the incident public. Individual A's receipt of hush money certainly seems to meet the terms of the federal blackmail statute. Although it is understandable that federal investigators decided not to pursue that charge once they became convinced that Individual A's claim of abuse was true, it is disingenuous to pretend Hastert was not blackmailed.

In a weird twist, the victim is suing Hastert for the remaining $1.8 million.

The financial investigation uncovered the abuse but the statute of limitations prevents bringing sexual abuse charges against him. Sexually abusing students--sexually abusing anyone--is despicable, of course, but it is worth remembering that the judge was sentencing him for financial wrongdoing, not for sex crimes.

Federal District Court Judge Thomas M. Durkin sentenced him to fifteen months instead of the probation suggested by the defense or the five years requested by the prosecution.

Mr. Hastert... was ordered to pay $250,000 in fines, never to contact his victims and to receive sex-offender treatment.

Why sex offender treatment? Ostensibly, sex offender treatment is to help the offender avoid offending again. When there is no evidence that he has reoffended for decades, why sex offender treatment?

Is it possible the judge sees sex offender treatment as a punishment?

“If there’s a public shaming of the defendant because of the conduct he’s engaged in, so be it,” Judge Durkin said.

With that attitude, it seems the judge does see it that way. Many of those registered citizens who are paying for individual therapy and group therapy at the behest of courts, probation and parole officers--and, for some, at the risk of being sent back to prison if they cannot pay--would agree.

If I seem sympathetic to Hastert, I am not, even though I think his crime does not merit prison time or a $250,000 fine or sex offender treatment. From an article in the National Law Journal:

Hastert’s work on the Adam Walsh Act was “hypocritical and self-serving,” wrote Gail Colletta, the president of the Florida Action Committee, an organization seeking sex registry reform, in a letter filed by the court Tuesday. She asked the judge to impose a sentence longer than the six-month maximum advised by federal guidelines. 

“Hundreds of thousands of individuals and their millions of family members and friends have to live with the draconian punishments he fostered,” Colletta wrote. “These individuals are also the victims of Mr. Hastert’s actions.”

It is not unusual that someone caught up in the criminal justice system receives an unjust sentence. It seems that Hastert may be one of those cases.

I am not happy to see anyone go to prison, especially not a 74-year-old with health issues.

I do hope that Hastert's public humiliation has made him see how wrong he was when he worked to impose that fate on hundreds of thousands of his fellow citizens.

in the interests of justice, a 5-day child porn sentence

In Brooklyn, a man plead guilty to possession of child porn. Federal guidelines recommended a 6.5 to 8 year prison sentence. The judge sentenced him to five days.

Five days.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.

 Ninety-eight pages! This judge wants to be understood.

"Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. 

Not the interests of retribution or the interests of disgust and fear, but the interests of justice.

"It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

The judge recognizes something important: the defendant's five children would be at risk if their father went to prison, he would not get needed treatment in prison, and the man is not a danger to society.

The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

Protecting juveniles includes the defendant's kids as well as kids who sext. Kids who sext, as foolish as they might be, should not be considered producers of child pornography nor do they deserve the long sentences called for in the guidelines.

...Weinstein thought [6.5 to 8 years] was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough.

Seven years of court supervision may not be prison but it is not a light sentence by any means.

The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

More and more people seek out pornography because it is so easily--and so privately!--available on the Internet. Mandatory reporting laws make certain that those who want help to stop looking at child porn have no sure way to get help without being turned in to law enforcement.

Those who favor tougher sentences point out that while many consumers of child pornography may not never [sic] lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children.

Yes, some do. Why not punish them for what they did instead of punishing all child porn downloaders as if they did?

"The viewing has a market-creation effect," Cassel said. "It ends up leading inexorably to the rape of children."

Again, those who rape anyone, adult or child, ought to be punished for rape. Someone who commissions a sexual assault against anyone, adult or child, should be punished.

Those who look at a video of a crime should not be punished for a crime already committed by someone else or for a crime yet to be committed by someone else.

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure.

The entire sentencing structure is built around the idea that every child porn case is the same and every child porn viewer is the same. The particulars of each case ought to matter.

Because those who create vile child porn are so difficult to find and prosecute, the criminal justice system comes down hardest on those who are easiest to find.

Punishment by proxy.

Judge Weinstein has long opposed the lengthy sentences recommended for child porn offenses.

judge tries to mitigate collateral consequences

A New York Times editorial tells the story of a courageous judge who is trying to make up for the failings of the justice system.

In May, a federal judge in Brooklyn took the extraordinary step of expunging the conviction of a woman he had sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme that netted her $2,500. 

Calling her “a minor participant in a nonviolent crime,” a Federal District Court judge, John Gleeson, decried the “dramatic adverse impact” the woman’s conviction has had on her ability to get a job to support her four children. “There is no justification for continuing to impose this disability on her,” Judge Gleeson wrote. “I sentenced her to five years of probation supervision, not to a lifetime of unemployment.” [My emphasis.]

The move was significant because there is no federal law that allows for expungement — the permanent sealing of a criminal record to the general public. In fact it appears to be the first time that a federal judge has expunged a conviction for this reason. It should not be the last.

Judges must certainly get wind of what happens after being convicted of crimes in their courts. This one did. Surely they can recognize that their pronouncements cause pain far out of proportion to the crimes.

The editorial tells the awful truth:

Some 70 million to 100 million people in the United States — more than a quarter of all adults — have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges — from voting, employment and housing to business licensing and parental rights.

 A quarter of the U.S. population is prohibited from access to the most basic rights and privileges. 

The editorial makes clear that expungement won't solve the whole problem. For too many, sex offenders in particular, their records have been loosed on the Internet, with no way to control what happens to the information.

This judge may not be the only brave judge out there but we need more who are willing to do the right thing even when their positions are on the line.

"kids for cash" judge sentenced to 28 years

Four thousand convictions in Pennsylvania have been overturned because of a couple of corrupt judges.

An American judge known for his harsh and autocratic courtroom manner was jailed for 28 years for conspiring with private prisons to hand young offenders maximum sentences in return for kickbacks amounting to millions of dollars.

Kickbacks in the millions but his restitution is only $1.2 million.

The Pennsylvania Supreme Court has overturned some 4,000 convictions issued by the former Luzerne County judge between 2003 and 2008, claiming he violated the constitutional rights of the juveniles – including the right to legal counsel and the right to intelligently enter a plea.

He would have been just as wrong if he had been violating the rights of adults.

Federal prosecutors accused Ciavarella Jnr and a second judge, Michael Conahan, of taking more than $2m in bribes from the builder of the PA Child Care and Western PA Child Care detention centres and extorting hundreds of thousands of dollars from the facilities’ co-owner. Ciavarella Jnr filled the beds of the private prisons with children as young as 10, many of them first-time offenders convicted minor crimes. 

...as young as 10. 

When society ignores what happens in the courts, guys like this take advantage.

When society ignores what happens in the prisons, the prisons take advantage.

Ignoring what goes on gives them power. Power corrupts.

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.

ninety days plus life

Julie Bosman, in today's New York Times, tells the story of a 19-year-old who meets another teen online; the teens meet and have sex. Not the recommended way to conduct relationships but common behavior now. It turns out that the partner who said she was older than the age of consent was not. 

[The 19-year-old] was arrested and charged and, after pleading guilty to fourth-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.

Ninety days. That slap on the wrist, however, is accompanied with lifetime on the sex offender registry.

Lifetime punishment for a single sexual encounter. How did we ever come to this?

...his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries. 

“The whole registry is a horrible mistake,” said William Buhl, a former judge in Michigan who has publicly argued that laws governing registries ought to be relaxed. “I think it’s utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile.”

That's the opinion of one retired judge, of course. The judge in this case thought differently.

“You went online, to use a fisherman’s expression, trolling for women, to meet and have sex with,” he said. “That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this whatsoever.”

Harumph. Totally inappropriate behavior.

Totally appropriate, though, to make sure young people are punished with life sentences for hooking up with a willing partner.

For some reason, [the prosecutor] told the judge in court, this generation seems to think it is “O.K. to go online to find somebody and then to quickly hook up for sexual gratification.” 

“That’s not a good message to send into the community,” he said.

 Tsk tsk. Not a good message to send into the community.

So much better to send the message that if you have consensual sex even once, you can pay for it for the rest of your life.

Times change and, wouldn't you know it, young people still like to have sex. The online hookup might very well be a bad way to use the Internet, though there is a worse way to use the Internet: The sex offender registry.

Using the Internet to prevent people from moving on with their lives after they have learned hard lessons about bad judgments is totally inappropriate behavior, a milktoast description of the unbelievable cruelty imposed on those who have paid their debt to society.

Ninety days in jail? Done.

Punishment and public shaming? Never ending.

Abolish the registry.

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

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

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

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

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

Think what that means.

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

This blogger begs to differ.

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

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

sentencing for violent offenders is key to easing prison overcrowding

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

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

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

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

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

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

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

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

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

An honest examination of prison overcrowding will acknowledge this.

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.

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.

Pennsylvania juvenile sex offenders no longer on registry

Good news for juvenile sex offenders in Pennsylania: 

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

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

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

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

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

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

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

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

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

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

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

a defense of John Grisham

Radley Balko steps in to remind us that John Grisham is not a lunatic who cares nothing for justice even though Grisham himself has apologized for his earlier statements about child pornography sentences.

Grisham's apology:

"Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography -- online or otherwise -- should be punished to the fullest extent of the law," the author said in a statement. "My comments made two days ago during an interview with the British newspaper The Telegraph were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable. I regret having made these comments, and apologize to all."

Balko's defense of Grisham, which is a longer and much more thoughtful piece than my blog post: 

Grisham certainly could have chosen his words better. But he isn’t wrong, and the invective he’s receiving right now is both misinformed and wildly over the top. There are Twitter users calling him a pervert, or for his hometo be raided by the FBI. It isn’t all that different than suggesting that people who criticize the drug laws must be doing or selling drugs. [My emphasis.]

Take this quote out of context, and one could make Grisham look like he thinks the biggest problem with the criminal justice system is that old white guys are getting locked up for looking at child porn. But context is important. Grisham has spent a great deal of time, money, and influence advocating for criminal justice reform. He helped found the Mississippi Innocence Project, and sits on the board of directors for the Innocence Project in New York. He wrote a nonfiction book about a wrongful conviction, and helped another get published. He testified before Congress about the need for reforming the forensics system, addressing the problems he’s seen firsthand in Mississippi.

Balko's piece is heavy on the links because the information he presents about Grisham is important. Grisham has a history of being on the side of justice. 

The reality is that John Grisham has done far, far more to actually address racial bias in the criminal justice system than the self-righteous pundits mocking him have done or will likely ever do. But because he had the temerity to stick up for a friend — and a middle-aged white male friend at that — the rush is on to disregard all of Grisham’s prior work, exaggerate the indignation, and reduce the man to a caricature....

This dressing down of Grisham by Jessica Goldstein at ThinkProgress pieceis pretty typical. There’s no mention of Grisham’s criminal justice activism. Just a lot of scolding, belittling, and berating. Worse, much of it is factually inaccurate.

Balko goes on to point out several inaccuaracies and then takes issue with the usual arguments about child porn.

I don’t disagree that children depicted in child porn videos continue to experience harm as those videos are distributed. I’m also certain that viewing the ISIS beheadings causes trauma to the families of the victims. Yet I’m not ready to start putting people in prison who, for whatever reason, decided to watch those videos. I’m skeptical of the supply and demand argument, particularly when the suspect hasn’t bought or traded any porn. But even if it’s true that merely viewing child porn provides a market for more child porn, it’s also far from clear that harsh sentencing laws are the answer. We’ve been tossing people in prison for viewing child porn for decades now, yet both the United Nations and the Justice Department say that the online supply of child pornography is only growing. [My emphasis.]

Read all of the Balko piece; I covered only part of it. It will be worth your time. 

If only John Grisham had been better-prepared to argue what his good sense--and his sense of justice--knows to be true: Sentences for child porn offenses are too harsh.

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.

deserving a chance for a pardon

A 25-year-old registered sex offender has been granted a hearing before the Nebraska Board of Pardons. This is excellent news for this young man because if he is pardoned, he will regain his civil rights and he will no longer be on the sex offender registry. 

According to the Omaha World-Herald article, it is unusual for a sex offender to be granted a hearing because

[t]he Pardons Board rarely considers the applications of sex offenders. But board members said they are willing to listen to this one because Weich has lived an exemplary life except for one crime committed as a 14-year-old.

An exemplary life should be rewarded. 

He didn't rape, fondle or even touch anyone. In 2003 he and two other teenage boys made a secret video of two or three female classmates using a shower at his mother's house in Pierce, Neb. The incident involved a game of truth-or-dare and the camera also caught one of the girls using the toilet, according to documents in his Pardons Board application.

A non-contact crime committed as a 14-year-old, not repeated. He was charged as an adult because the crime was not discovered until he was 18.

This man has gained some powerful allies. A state trooper for one and Nebraska's Attorney General, Jon Bruning, for another.

Other factors in [this man's] favor include pre-sentence psychological evaluations that found he is not a sexual predator and showed he was a minimal risk to reoffend. He completed all of his probation requirements, which included more than 20 sessions with Dr. Kevin Piske, a Norfolk psychologist who specialized in treating sex offenders.

Not a sexual predator, unlikely to reoffend, got through probation with no trouble. Saw a psychologist for awhile. This man is a success story.

The psychologist was one of 93 people who submitted letters in support of [the man], which likely represents a record number, said Sonya Fauver, the board's administrator.

Ninety-three letters of support! Many friends in his corner. 

[His] status forced him to give up on his dream of playing football for a major college program. He had been invited to walk on at Kansas State University, but he was told the school couldn't take a chance on a sex offender. He also had to leave the dorms. 

Although it was difficult, he found off-campus housing and finished his second semester at Kansas State.

Later, he was offered a football scholarship and began playing at Wayne State College in Nebraska. Again, he wasn't allowed to live on campus. He got his degree in business management in 2012.

The registry still haunts [him], especially when it comes to finding employment and housing. He said he has held some temporary jobs but hasn't been able to get an offer related to his major when employers learn he is a registered sex offender.

Recently, he had the opportunity to show the National Football League his punting skills. One of his college coaches called him "the best punter he has seen in his 30 years as a coach" so it seems this young man may have a chance at a position in the NFL.

“How many people do you know in the world who would even have a chance to make it in the NFL?” [one of his supporters] asked. “But he can't because of this. It just doesn't seem fair.”

No, it doesn't seem fair to have lived an exemplary life and yet be held back because he is a registered sex offender. 

Among the 93 letters is a letter from 

...retired District Judge Patrick Rogers, who presided over [the man's] trial. 

“I commend him for all of his accomplishments since 2007, even while carrying the burden of his offense,” Rogers wrote. “He could have easily given up, as I believe so many others do.”

But do so many others give up? 

Statistics show that, like this man, very few registered sex offenders commit another sex crime. 

Like this man, most registered sex offender are first-time offenders.

Like this man, most are deemed at low risk to reoffend.

Like this man, most are not considered sexual predators.

Those are not signs of people who gave up. Those are signs of people who are very much like this Nebraska man.

Like him, they have trouble finding employment. Like him, they have trouble finding a place to live. 

Like him, they have hopes and dreams for the future that have been stymied by their status as a sex offender.

This young man who lives an exemplary life deserves every chance at his hopes and dreams, just as other law abiding citizens do. 

Just as every other law abiding sex offender does.

This young man is not the exception. He is the rule.

UPDATE: Good news.

questioning child pornography laws

It isn't enough to sit back and assume that those making the decisions about law and punishment are doing it effectively. Thinking citizens must question and they do. Arguments about effective laws and proper consequences are a permanent fixture in our national discourse.

There is a robust debate about the laws governing copyrights. The death penalty continues to generate controversy because people have such strong opinions about it. Immigration law inflames opinions on both sides of the issue. Nearly everyone has a firm idea about whether abortion should be legal or not. People feel strongly about whether red light cameras are a good way to stop people from running red lights.

Examine the state of the justice system to see if it does more harm than good. Should X be against the law? Should Y be the punishment for breaking the law? These are fair questions.

These are the questions I ask about child pornography laws. Questioning child pornography laws does not say child porn is acceptable any more than questioning drug laws says it is acceptable for someone to use cocaine.

When Congress questioned the disparity between sentences for powder cocaine offenses and crack cocaine offenses and then took action to lessen the disparity, they were not approving the use of cocaine in any form.

It makes sense to look at drug laws and consider carefully whether those laws and those consequences are doing anything to diminish the use of illegal drugs. Our prisons are full of people convicted of drug charges and each inmate costs us around $26,000 a year to house. Families and whole neighborhoods are torn apart because so many people are doing time or have done time because of drug charges. Gang violence flourishes because gangs rule the underworld where the drug industry operates. After spending $51 billion annually to combat illegal drug use, illegal drugs remain readily available.

The United States is headed toward the same wild spending to prevent something equally impossible to control with laws: availability of child pornography.

Why is child porn illegal? If it is illegal because we think the laws will stop people from looking at child porn, we would see decreasing numbers of child porn convicts instead of increasing.

If it is illegal because the person looking at a photo harms the person in the photo, photos of other crimes would cause distress worthy of prison, too.

If it is illegal because the idea of someone using child porn is so appalling that we want to punish that person for doing something abhorrent, we are formulating laws based on emotion instead of reason.

It is hard not to react emotionally to the thought of images that involve very small children or images of violent crimes. Images that a 17-year-old might send to a 19-year-old boyfriend or girlfriend, however, rarely enrage people. People generally think the teen was foolish and would agree a prison sentence is not warranted and yet those images are considered child pornography, too.

In the movie Crazy, Stupid Love, a high school girl takes naked pictures of herself to send to a an older man. The photos are intercepted by the the girl's mother and much hilarity ensues. The audience finds it funny to think of the girl doing such a foolish thing and they find the parents' horrified reactions funny.

In real life, the parents could go to prison for possessing those photos of their daughter. In real life, the daughter could end up on the sex offender registry for producing child pornography.

Is that really what we want the laws to do? This is a question worth discussing.

If someone goes to a counselor and asks for help to stay away from child porn, the counselor is mandated to report that person to law enforcement. Is this what we want the laws to do? Wouldn't it be better to encourage child porn users to avoid using child porn and let them get help to do that? It would certainly save taxpayer money to keep them out of prison.

If the goal is to diminish the availability of child pornography, laws prohibiting child porn don't work. That much is clear. No matter how many people are incarcerated for possessing, receiving, or distributing child porn images, the images are still there. Again: Why are the images illegal? What good does the prohibition do?

Prohibiting the images does not prevent child sexual abuse.

Some say that punishment is reason enough to prohibit the images but many--including federal judges who are bound by the mandatory minimum sentences--think the sentences are too long.

On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child. In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high. Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes. [My emphasis.]

If we incarcerate people for doing something society abhors--looking at child porn--are we making it easier or harder for those people to rejoin society and its norms? Incarceration isolates. The sex offender registry isolates. Homeless, unemployed offenders are not safer than offenders who have homes and jobs. Do we want offenders to accept societal norms or do we want to encourage them to reject those norms?

Child pornography laws do not diminish the supply of child pornography, do not reduce the incidence of child sexual abuse, do not reduce the number of viewers but only satisfy an emotional need to convey strong disapproval...that approach to lawmaking will not be limited only to child pornography.

What will be the next activity that needs strong disapproval? Will those laws do any good or will they simply fill our prisons as the child porn laws do?

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.

arousal is not the crime

A filthy secret about child pornography cases: plethysmography. In this test, sensors are attached to a man's penis to detect arousal while he is shown child pornography images. Though the word is spelled with enough letters to make it sound all science-y, this is a barbaric practice similar to phrenology.

A person prosecuted for owning child porn images is shown child porn images by someone paid to maintain a collection of child porn images. That's twisted.

The good news is that not all jurisdictions use this test and now we have even more good news:

Yesterday, the Second Circuit Court of Appeals, which oversees New York, Vermont, and Connecticut, determined that using an erection-measuring device as part of probation for one sex offender was an “extraordinarily invasive” and a violation of due process. ...

The Second Circuit Court of Appeals saw some problems with the claims of plethysmography's effectiveness. The judges wrote, “We find it odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction.”

Commenter tarran at the Reason link sums it up well:

The idea was you show people stuff, and if they start to get hard, you know they really like it. 

So, if you show a guy a picture of an eight year old girl and the blood starts flowing to his nethers you know that eight year olds arouse him. 

It doesn't tell you how likely he is going to *act* on the arousal. But if he is aroused by eight year olds, then he is a devil incarnate and can be locked up safely forever. 

I work with some very pretty 25 year-old women... if you ran me through the machine while showing pictures of them cavorting in swimwear, you *would* get a response. Somehow I've managed to avoid raping any of them... as has every other male in my company. That tells you everything you need to know about the usefulness of the machine. 

This case is another tug in the effort to drag accepted thinking about sex crimes into the twenty-first century. Or the twentieth. 

high incarceration rate leads to poor hiring decisions

During a routine divorce hearing in a Las Vegas courtroom, a woman was sexually assaulted in a back room by a federal marshal.

[The] woman ...complains that a marshal sexually assaulted her in a back room. The woman becomes increasingly agitated as the marshal, who is in the courtroom, then arrests her for “making false allegations about a police officer,” all while the magistrate plays with the woman’s child, at least until the child begs the arresting officer to not take her momma away.

The woman filed a complaint and the marshal was fired, though not because the judge took any interest in what was happening right in front of her.

How could this happen? How could such a man hold the position of federal marshall?

The United States has the highest incarceration rate of any country in the world, with 2.2 million people in jails or prisons. So many people are incarcerated that Sesame Street has produced an education kit designed to help children who have family members in prison. 

Necessarily, the number of corrections officers has increased. Over 434,000 corrections officers are employed in the U.S. I imagine, though I couldn't find a source, the number of federal marshals has also increased. When more and more guards and marshals are needed, the chance of hiring the wrong person increases.

Not only is the incarceration rate playing a large role in bankrupting our country financially, putting more and more people in positions of power over others will play a large role in bankrupting our country morally.