Seventh Circuit Overturns Kiddie Porn Conviction Based on Government’s Use of Unrelated Hard-Core Porn

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).

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New Evidence That Registration for Juvenile Sex Offenders Is a Bad Idea

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).

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Sticks and Stones

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:

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So When Will We Have a Sex Czar?

I’ve just read a provocative new article by Corey Rayburn Yung entitled “The Emerging Criminal War on Sex Offenders.”  The article, available here, appears at 45 Harv. C.R.-C.L. L. Rev. 435 (2010).  Comparing the present political and legal landscape with the time period when President Nixon launched the War on Drugs, Yung argues that we appear close today to a “War on Sex Offenders.”  He identifies three defining characteristics of a “criminal war”: a marshalling of resources against the targeted offenders, particularly at the federal level (e.g., the creation of the office of the “drug czar”); the propagation of myths about the dangers of the targeted group; and the recognition of exceptions to the normal rules of law enforcement, particularly constitutional limitations, in order to stop the targeted group.

So, how does Yung see this playing out with sex offenders?

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Research on Wrongful Convictions: Half-Full or Half-Empty?

Jon Gould and Richard Leo have an interesting new paper entitled “One Hundred Years Later: Wrongful Convictions After a Century of Research.”  They are responding to a recent claim by Samuel Gross and Barbara O’Brien that researchers “do not know much about false convictions.”  Gould and Leo essentially take the “glass is half-full” position – although our knowledge may be less precise than we might like, we have nonetheless come a long way since American researchers first began to study wrongful convictions a century ago, especially as a result of studies of DNA-based exonerations over the past twenty years.  In advancing the claim, Gould and Leo provide a helpful overview of the burgeoning empirical literature on the frequency, consequences, and causes of wrongful convictions.

Here are a few tidbits I found especially intriguing:

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Mississippi Lifers Exonerated in Rape-Murder Case

Phillip Bivens was released yesterday after serving thirty years of a life sentence for a rape-murder in 1979.  As reported by the New York Times, Bivens and a codefendant pled guilty in the case, while a third defendant was convicted by a jury.  New DNA analysis of the rape kit exonerated all three men earlier this year, although only Bivens was still serving time — one codefendant died in prison, and the other had already been released for medical reasons.  Little evidence connected the men to the crime aside from their own incriminating statements, which had apparently been coerced from them. 

DNA exonerations in recent years have done a great deal to highlight the reliability problems with confessions that are uncorroborated by physical evidence.  I wonder, though, to what extent these problems have really sunk in with the lay public.  On their face, confessions seem such extraordinarily compelling evidence — what could be more reliable than a statement so directly and profoundly against personal interest?

The Mississippi case is also interesting as an illustration of reliability problems with guilty pleas, particularly when the death penalty is available.  Bivens entered his false guilty plea in order to avoid facing the death penalty.  My own views about the death penalty are neither strongly for nor strongly against, but I have long thought that the biggest problems with the death penalty are not in the very small number of cases in which it is actually imposed, but in the possibly much larger number of cases in which fear of the death penalty leads to a guilty plea and an undeserved life sentence.