Author’s Note: With this, I begin a series of posts that will review the Supreme Court’s criminal cases from the now-concluding term.
The Court’s docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.
Burrage nicely illustrates the tension. Continue reading “SCOTUS End-of-Term Roundup: Causation Cases”
Earlier this month, the Bureau of Justice Statistics released new data on unreported crime from the National Crime Victimization Survey. Among other things, the data demonstrate the limitations of the FBI’s uniform crime reporting system, which even in theory only captures crimes that come to the attention of police.
There is a great deal from the BJS report that merits highlighting, but I’ll focus here just on the under-reporting of sexual assaults. This was the second-least reported type of crime covered in the report. The non-report rate for theft, the least reported crime, was only slightly higher, 67% to 65%. By contrast, the non-report rate for car theft was only 17% and robbery 41%.
It is not surprising that theft leads the way in non-reporting, because theft is often a quite minor crime. Indeed, 31% of the theft victims who did not report the crime to police identified as the main reason that the crime was not important enough to them. Another 35% said that they thought the police could not or would not help; presumably, this perception, too, is largely a function of the minor nature of the crime.
What drives the non-reporting of sexual assault seems to be a quite different set of dynamics. Continue reading “Nearly Two-Thirds of Sex Assaults Go Unreported, New Data Show”
As child molesters go, Cory Reibel seems a relatively low-risk proposition. He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism. Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.
The judge’s sentence seems to fly in the face of the science of risk assessment. Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions. Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk. However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.
These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence. Continue reading “Sentencing and the Limits of Actuarial Risk Assessment”
As William Dinkins, a Wisconsin sex offender, approached the date of his release from prison, he was obliged by state law to provide an address at which he would be residing upon his release. The problem is that he did not have a home, and there was no one willing to take him in. Despite his efforts and those of a social worker to line up a place for him to live, when he missed the deadline to report a post-prison residence, the state prosecuted him under Wisconsin’s sex-offender registration law, which makes it a felony for a sex offender to “knowingly fail to comply with any requirement to provide information.”
The trial court found Dinkins guilty as charged and gave him 90 days in jail.
Although framed as a “failure to provide information,” Dinkins was, for all intents and purposes, convicted and punished for being homeless. Or more precisely, I suppose, he was punished for being a homeless sex offender. Either way, this seems functionally a status crime, and status crimes are unconstitutional under Robinson v. California, 370 U.S. 660 (1962).
Continue reading “It’s Not a Felony to Be Homeless, Wisconsin Supreme Court Holds”
Last week, in United States v. Klug (No. 11-1339), the Seventh Circuit upheld a whopping sentence of 384 months for producing and possessing child pornography. This sentence was actually below the guidelines’ recommendation of life. Notably, for a case involving such an extraordinarily long sentence, there is no allegation that Klug coerced the child subjects of the pornographic videos he created, or that they were sexually molested. Rather, the videos were made covertly, mostly involving showering, changing clothes, using the bathroom, and the like. Moreover, Klug disguised the faces of the subjects before circulating their images.
Of course, what Klug did was very wrong, and if the kids ever find out that these sorts of images of them were circulated on the Internet, they would be well justified in feeling violated. Still, in challenging the substantive reasonableness of his sentence, Klug may make a fair point that the district judge’s decision leaves little meaningful difference in the punishment for what he did and what the producers of violent, hard-core child pornography do.
Although not using the term, Klug apparently framed this argument as one of marginal deterrence: if we give 30-year sentences to producers who don’t molest their subjects, there’s no reason not to molest.
Continue reading “Seventh Circuit Approves 30+ Years for Possession and Covert Production of Kiddie Porn”
Add one more to an interesting line of Seventh Circuit cases that overturn sentences because of a district judge’s apparent reliance on facts that are not in the record, and that seem instead to be based on stereotypes about certain types of offenders. (For earlier cases, see here and here.) In the new case, United States v. Halliday (No. 10-2337), the district judge imposed a 240-month sentence for child pornography possession and receipt — 30 months longer than the government requested — because “this Court has seen no remorse, no acceptance; belief that this is just ordinary conduct, victimless crimes.”
The trouble is that nothing in the record supported the judge’s perception of a “belief that this is just ordinary conduct, victimless crime.” No doubt, there are many child pornography defendants who have this view, or who say things at sentencing suggesting such a view. But, as far as one can tell, Halliday was not one of them, and it is indeed troubling that the district judge seemed to be sentencing him on the basis of generic perceptions about his class of offenders.
But did this really rise to the level of plain error, as the Seventh Circuit held?
Continue reading “Sentencing, Stereotypes, Porn, and Plain Error”
Through the Sex Offender Registration and Notification Act, Congress made it a federal crime for sex offenders who travel in interstate commerce to fail to comply with state laws for sex offender registration. Congress provided for retroactive application of the new law to those who were convicted of sex crimes before the law took effect in 2006, but did so through some ambiguous language whose meaning has sparked much debate and litigation. Earlier this week, the Supreme Court resolved at least one of the retroactivity disputes in Reynolds v. United States (No. 10-6549).
As the Supreme Court described it, here was Reynolds’ situation:
Continue reading “The Retroactive Reach of SORNA”
In criminal cases, the rules of evidence generally prohibit the government from introducing evidence of other bad acts so as to prove that the defendant had a propensity to commit the crime charged. However, Rule 414 makes an exception for evidence used to prove a propensity to commit “child molestation” (a defined term that includes the possession, distribution, and advertising of child pornography). Does Rule 414 mean that in a kiddie porn prosecution the government always has the right to introduce evidence of the defendant’s possession of additional, uncharged child pornography? No, answered the Seventh Circuit earlier this week in United States v. Loughry (No. 10-2967).
Continue reading “Seventh Circuit Overturns Kiddie Porn Conviction Based on Government’s Use of Unrelated Hard-Core Porn”
One of the more controversial aspects of the 2006 Adam Walsh Act was the requirement that certain juvenile offenders be added to sex offender registries. The basic premise of these registries is that sex offenders are likely to recidivate, so the public should know who they are and where they live so that protective measures can be taken. The image of the hardcore predator lurking in the shadows obviously drives the politics. But, whatever the merits of registration for adult offenders, juvenile registration seems especially ill-suited to protecting us from predators. Because juveniles are not yet fully developed with respect to such capacities as impulse control, and because sexual experimentation seems a normal aspect of adolescence, sexual offending by juveniles seems on its face a poor basis for predicting future predatory behavior. A handful of empirical studies bear out the view that juvenile sex offenses do not generally warrant registration.
Add to this empirical work a new study: Ashley Batastini et al., “Federal Standards for Community Registration of Juvenile Sex Offenders: An Evaluation of Risk Prediction and Future Implications,” 17 Psych., Pub. Pol’y, & L. 451 (2011).
Continue reading “New Evidence That Registration for Juvenile Sex Offenders Is a Bad Idea”
I don’t know Judge J. Phil Gilbert of the Southern District of Illinois personally, but I’m pretty sure he dislikes sex offenders. A lot. So much so that his remarks at sentencing in at least two recent sex cases have earned rebukes from the Seventh Circuit. In one, United States v. Snodgrass (No. 10-2343), Judge Gilbert imposed a thirty-year sentence — a full ten years above the advisory Guidelines range. Here’s how he explained the sentence:
Mr. Snodgrass, there’s not a whole lot I’m going to say. I listened to the trial, have seen the evidence at the sentencing hearing. You are definitely a scourge on society. You are a sick-o. You’re a sexually dangerous person who, in the opinion of this Court, should never be allowed the freedom to abuse children again. You may be beyond redemp- tion, but that’s not for me to decide. There’s good and evil in this world, and you fit the bill of being evil.
There’s not a [§] 3553(a) factor that doesn’t cry out for a sentence that will result in your incarceration the better part of the rest of your life.
Meanwhile, in United States v. Bradley (No. 10-1080), Judge Gilbert imposed a twenty-year sentence — more than fourteen years above the Guidelines range and more than twelve years above what prosecutors requested. Here’s what the Seventh Circuit quoted from his explanation of the sentence:
Continue reading “Sticks and Stones”