Archive for August, 2005
more violence against sex offenders
Aug 29th
TalkLeft reports that two sex offenders were murdered in Bellingham, WA. A man, believed to have been posing as an FBI officer, is the main suspect.
The suspect arrived at the house Friday night wearing a black baseball cap with an FBI insignia on the front and a blue jump suit with a white stripe down the legs, the roommate told police.
The suspect is not an FBI agent, Ambrose said.
The man presented himself to the three roommates as a member of the FBI and said he wanted to talk to them about their Level III sex offender status, according to police.
The fake FBI agent told the roommates that one of them was on a “hit list†on an Internet site, according to the police. The roommate who reported the deaths left while the FBI imposter was still there, Ambrose said.
TalkLeft wonders,
Is this an isolated case of vigilante justice, or will this be the beginning of a trend?
To which I say – that’s three murders in less than two weeks. You decide.
Joining the proud ranks
Aug 25th
of the ‘hood of public defenders is Woman of the Law! Congratulations on a profession well chosen. Go over there and wish her well.
New proposals to toughen CT’s Megan’s law
Aug 23rd
State legislators yesterday unveiled a package of 10 proposals that would revamp the state’s Megan’s law provisions, toughening restrictions on sex offenders. CT is just one of many states considering tougher legislation. [More commentary here.] According to news sources,
[t]he proposed changes would go beyond simply providing information about where offenders are living, but would provide means to aggressively track an offender’s whereabouts and attempt to prevent future attacks.
Legislators and law enforcement officials said they want judges to exercise a rarely used statute for sexual offenders. Called civil commitment, a judge could order a hearing upon a suspect’s release, exploring whether he should be permanently housed in a secure forensic hospital setting.
Apart from that, legislators want to toughen the registration requirements, including pinning down offenders that change their names, have PO Box addresses and are homeless (which I’ve long maintained is a big problem with the registration requirement). Legislators also want to add CT to the national database.
Which brings us to another proposal – the GPS monitoring.
Under the GPS provision, sex offenders themselves would pay for the cost of equipment and monitoring by an outside agency, which would alert probation officials when offenders head toward forbidden destinations, including schools or the homes of previous victims.
At a cost of $8 to $15 per day, per offender, the GPS system, using radio signals from bracelets that would bounce off satellites to continuous monitors, would alert officials if dangerous sex offenders stray toward schools or previous victims.
I wonder if the provision requiring offenders to pay for their own GPS monitoring will be enforceable, or what they will do with offenders who are unemployed or have incomes below the poverty level.
Some of the other proposals include lengthening sentences, for up to life for the most violent and persistent. Interestingly, the lawmakers did exhibit a willingness to do more than just punish:
"But we can never guarantee every child’s safety until we can figure out what causes this demonic sexual behavior," [Speaker of the House James] Amann said. "So, one last recommendation is to invest in areas of treatment."
These proposals will be put before the legislature in the next session.
In other sex offender related news, CNN has this article outlining the challenges some people are bringing to these new laws being enacted all over the country. The article highlights the problem that will arise when every town starts enacting "no sex offender" zones, which is what happened to the individual focused in the story.
"We’re outgrowing our house fairly quick," said Elwell, 34. "If we have to move, we’ll have to find a map, get a plot of land and figure out where (the pedophile-free zone) doesn’t reach."
A Brick, New Jersey ordinance added bus stops to the list of locations off limits to offenders and included a 2,500-foot buffer zone. With more than 2,000 school bus stops in the town, the measure effectively bars sex offenders from living anywhere in Brick.
Hands Off Habeas
Aug 19th
WaPo has this editorial today [note: registration might be required], criticizing the Streamlined Procedures Act of 2005 [previous commentary here and here]. The editorial mentions a vote by the national Conference of Chief Justices (Chief Justices of all State courts) that overwhelmingly urged Congress to slow down on this bill. [The lone dissenting Chief Justice? - You guessed it. Texas.]
So it is particularly instructive that chief justices of the nation’s state court systems have voted overwhelmingly to urge Congress to slow down. The chief justices would be, after all, the apparent beneficiaries of the bill, which would gut federal review of the convictions they oversee. Yet in a strongly worded resolution by the Conference of Chief Justices — with only the chief justice of death-happy Texas voting no — the heads of state judicial systems said in essence, "Thanks, but no thanks." Cooler heads in Congress ought to listen.
The most drastic versions of the bill, proposed by Sen. Kyl and Rep. Lungren, would all but eliminate Federal Habeas review.
Even where they didn’t do that, they would create onerous procedural roadblocks and prevent federal courts from considering key issues. They would bar federal courts from reviewing most capital sentencing and create arbitrary timetables for federal appeals courts to handle these cases. All of which, you might think, would be music to the ears of state court justices, for whom it is a big blank check.
Unless, of course, those chief justices are interested in, well, justice. The resolution, adopted jointly with the Conference of State Court Administrators, notes that "the changes contemplated in these measures may preclude state defendants in both capital and non-capital matters from seeking habeas corpus relief" with "unknown consequences for the state courts and for the administration of justice." It recommends "delaying further action" pending additional study to evaluate whether change in current law is even necessary. If it is, the justices urge Congress "to consider appropriate targeted measures that will ameliorate the documented problems and avoid depriving the federal courts of their traditional jurisdiction without more supporting evidence."
Kudos to them. The Senate Judiciary Committee is poised to consider less drastic versions of this bill. Let’s keep our fingers crossed.
Who needs tougher sex offender laws
Aug 18th
UPDATE: Oops! Forgot to provide the link. Here it is.
when every man can take matters into their own hands! Apparently not satisfied by the surge of legislation nationwide toughening penalties for sex offenders, a few men in Utah decided to hurry the process up by killing and dismembering a convicted sex offender.
Mark Allen Carlson, arrested this week for questioning in the slaying and dismemberment of a convicted sex offender, said John Mayo was killed by another man because Mayo sexually abused children.
…
[Deputy Sherrif] Booth said Carlson claimed the other man killed Mayo because he sexually abused children. Mayo pleaded guilty in November 1991 to forcible sexual abuse. The victim was a child.
Booth said the murderer wasn’t driven by vigilantism.
"It was more, ‘I just don’t like your lifestyle. I don’t like what you’ve done in the past,’" Booth said.
Nice. Maybe now there will be a surge of legislation toughening penalties on offenders that offend against sex offenders. There should be.
Roundup of latest proposed sex offender legislation
Aug 18th
UPDATE: Prof. Berman responds to Tom’s post and provides several studies that show that sex offenders are less likely to re-offend as compared to inmates convicted of other crimes.
- A comprehensive sentencing commission report [pdf] from Virginia,
- A report from the American Psychological Association,
- A Washington State study [pdf] and
- Some data from the Texas Department of Health State Services.
Prof. Berman concludes:
Rather my goal is to push the public dialogue toward sound data-driven analysis so that we get effective policy reforms rather than hollow rhetoric and cost-ineffective proposals that only distract from doing the real, challenging work required for effective sentencing and corrections policy-making.
I will read these reports later today and post summaries, if applicable and time permitting.
Original Post: Once again, Prof. Berman points to several articles from different states where high-profile politicians have entered the "tough on sex offenders" fray. Almost all these proposals call for life-time registration and monitoring via GPS.
What is interesting is that some of the articles do mention the unwieldy cost of lifetime GPS monitoring of sex offenders. Prof. Berman thinks that the only brake on these legislative initiatives will be economics. Not so in CT, however, because part of Gov. Rell’s proposed sex offender legislation is that offenders themselves will have to pay for their lifetime monitoring.
Tom, obviously, disagrees with this assessment. The problem with Tom’s post, however, is that he goes too far.
Why is it that certain lawyers and "academicians" want to prevent the people from protecting themselves and their children? Why are they more sympathetic to convicted sex offenders than to the hard working people who just want to ensure their kids’ safety?
See, this sort of generalization and sweeping statement of the issue doesn’t help. I don’t want to prevent people from protecting themselves (and I’m sure, neither does Prof. Berman). The statement itself is ridiculous. If you think about it for a second, you’ll realize that. The second question is why are we more sympathetic to convicted sex offenders and not hard working people.
I have two answers: One, these are legal blawgs. I’m not writing about the humanitarian aspects of the legal system and life in general. I’m writing about laws, criminal laws and how they affect criminal defendants (and in a more protracted sense, people in general). So it may seem that I am more sympathetic. But in order to have constructive thought and discussion, one needs to separate oneself from the emotional heartbreak that these cases often bring. Secondly, in case you haven’t noticed, I’m a public defender. My views are (mostly) going to conflict with those of a prosecutor.
Why are some people so hell-bent on giving all criminals the death penalty? Oops, I did it again!
Revisiting indigence
Aug 17th
A post at Prawfsblawg highlights an article in the Indiana Law Journal titled "The Invisible Pillar of Gideon", arguing that there should be a Constitutional floor for Indigency.
[This] piece illustrates the discrepancy among states in determining who is indigent for purposes of Gideon’s assurance of a right to counsel. He observes that what counts as indigent in one state (e.g., Scott Peterson in CA) would not count as indigent in another (Larry McVay in South Carolina). I would add that, in light of the various states that have fuzzy guideposts for determining indigency, the discrepancy exists not only across states but within states too regarding who is entitled to appointed counsel.
As to the solution to this problem, [the author] (whom I’ve not yet met) doubts Congress and the states could do something to establish the constitutional floor that Gideon is supposed to furnish on an equal basis; he therefore proposes that the Supreme Court adopt a framework that would "equalize the right to apponted counsel across the fifty states." Specifically, the Court should adopt a rebuttable presumption that says: if you’re below 200% of the federal poverty guidelines, you should get appointed counsel. This use of flexible benchmarks is similar to the Court’s State Farm jurisprudence in punitive damages.
A few months ago, there was plenty of discussion on this matter of indigency here and on Mr. DA’s blog. The discussions centered around the meaning of indigence, who defines indigence and how. [I think Tom might've gotten involved too.]
To be honest, I didn’t read through the whole "constitutional floor" article. But Mr. DA made some of the very same points in his post:
The difference is not really all that significant. Look at that family of four with two kids under 18.The basic threshold figure is $19,157 (set aside for the moment the question whether this isbefore or after taxes) a range of 125% to 187.5% of that number is $23, 946 to $35, 919. Usingthe guidelines figure of $18, 850 the range is $23, 563 to $35,344.
Is this reasonable? And why do we have the multipliers? 125%, 187.5% — what’s that all about?Let’s look at that two adults, two kids under 18 number. $19,157. That’s not a lot of money for a family of four to live on. But consider – if both the adults are working full-time, at minimum wage jobs (currently that’s $5.15/hr) and put in a full 2080 hours a year, their gross income will be$21,242. Whoa! If we only used the threshold or guidelines numbers, these folks wouldn’t qualifyfor appointed counsel. And that’s just plain silly. But when we apply the 125% multiplier we find they do qualify. So if Dad has a couple of beers after work on Friday, and rolls through a stop sign on his way home, he’ll be eligible for appointed counsel to fight the drunk driving charge Officer Friendly dropped on him.
Which brings me back to the point I made then. Let the individual states decide what indigence is. Every state has different real estate values, standard of living costs. Let there be a basic guideline, something perhaps along on the lines of "If an individual makes $12,000 a year or less, then he/she will be declared "indigent" regardless of other economic factors. Then let the states decide if they want to up that figure for their residents.
As I argued back then (lamented is more like it), even with my salary, I probably couldn’t afford to hire private counsel, were I charged with a crime. However, I certainly would not qualify for the division’s services. So there is a gray area, but it’s impossible to lay down a fixed rule. Each state legislature knows it’s economy the best, knows the SOL best, knows median income levels the best. So if CT decides that all said and done, $18,000 a year is a good cutoff, then let it be so.
Incidentally, CT’s definition of indigency is outlined in C.G.S. 51-297. Cryptically, it states:
As used in this chapter "indigent defendant" means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation and (2) a child who has a right to counsel under the provisions of subsection (a) of section 46b-135 and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation.
From my knowlege, the cutoff is based on the Federal Poverty Guidelines. Here is the latest chart for CT. [pdf]
So what am I trying to say? Nothing, really. Just that we need to take indigent defense far more seriously. There are plenty of people in the country that fall below these guidelines and attorneys are not being properly compensated or given enough incentives to make this a career. Unfortunately, the poor masses lose out.
10,000 hits
Aug 16th
The little stat counter tells me (actually as of yesterday) that this blawg has had 10,000 visitors/page hits/me constantly reloading.
So I figure 10,000 is a big number. Let’s have a toapost! Thank you for coming to the site and I’m so glad you haven’t caught on that I really know nothing.
Btw, for those of you who read this blawg semi-regularly and want to be kept updated of new posts, try
or
the waiver
Aug 14th
Sounds like a good name for a legal television show, doesn’t it? But I’m referring to the concept embedded in criminal jurisprudence (and other areas of the law, I’m sure) of the ability, perhaps the right, of a defendant to waive his Constitutional protections. A defendant can waive a jury trial, can waive the right to present witnesses, can waive a challenge to an unconstitutional s & s. Heck, with a guilty plea, a defendant waives all non-jurisdicitional defects! (See Tollett v. Henderson) But can a defendant waive effective assistance of counsel? A few cases from the Appellate Court would lead you to believe so.
Last year, the App Ct decided a few cases in which petitioners pled guilty and then filed a Habeas petition, raising a claim of IAC. The respondent alleged cause and prejudice arising from failure to raise the constitutional claims in the trial court and on appeal.
This is where it gets interesting: Petitioners alleged that the procedural default was a result of ineffective assistance of counsel. The standard for C & P is as follows:
A petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).
Case law in CT holds that a claim of IAC is usually best raised in a Habeas petition. The App Ct points to the practice book section which says that a plea of guilty may be withdrawn on several grounds, one of which is IAC.
In essence, what the court was saying in both cases was that Petitioner should have filed a Motion to Withdraw the guily plea as per the practice book. The practice book provides (and I’m paraphrasing) that a defendant may withdraw a guilty plea until it has been accepted. After acceptance, a defendant may withdraw the plea on any one of the enumerated grounds. However, a defendant may not withdraw the plea after the conclusion of the proceeding at which the sentence was imposed. So, according to some cases, if a defendant does not attempt to withdraw in that intervening period, he has waived his right to raise a claim of ineffective assistance, since they would be precluded on appeal.
Does this not in essence mean that a defendant can waive his right to effective assistance? I could just be reading it all wrong. What do you think? Can it be waived?
Inmates take the lead on rehab
Aug 11th
In some heartening news, lifers in a PA prison are taking the lead on rehabilitation. These lifers (calling themselves "LIFERS"), made a presentation of their program to academics from around the world who were in Philly attending the "World Congress of Criminology" (???).
Their program consists of spending each Saturday night at the prison with other inmates who have the possibility of release. The idea being that young inmates who are part of gangs and immersed in "street culture" don’t want to hear about reform from lawyers, judges and COs. Getting advice from lifers, howevers, adds some cred.
Inmates who take part in the program are urged to renounce street codes such as revenge, violence and materialism and replace them with what the lifers see as more genuine traits of manhood such as honesty, restraint and responsibility.
…
"You can have any number of academic theories, but the youth isn’t going to take it from you because you don’t have credibility," said Kevin, a 33-year-old convicted of murder and imprisoned for life without parole in 1991. The state Department of Corrections does not allow inmates’ last names to be used.
Tyrone, a 55-year-old who has been in prison for murder since he was 25, said: "We know the street crime culture. We know how to address it and those currently living within it."
Hear hear! Young adults (and even teens) often turn to gangs to provide a sense of family, of belonging. There is no better place to get advice than from the people that belong to that very family.
Hat tip: CrimProf Blog.
Judge tosses award against public defender
Aug 11th
In 1999, Javier Ovando, a former gang member, was convicted of assaulting two corrupt police officers. He was sentenced to 23 years. Two years into his sentence, however, it was discovered that the two officers had shot and paralyzed him and then planted a gun on him.
So what does he do? He sues his Public Defender and the County.
After the conviction was overturned in 1999, Ovando sued Deputy Public Defender Tamar Toister and Los Angeles County, claiming Toister knew Rampart officers had a pattern of falsifying and planting evidence. In May, Ovando was awarded $6.5 million in the case.
Judge Tricia Ann Bigelow on Monday threw out the 6.5 million award and also ordered a new trial, after finding juror misconduct. Juror Jennifer Salinas had said she had no knowledge of this scandal. Perhaps, but she neglected to mention that she starred in a movie about the scandal!
Connecticut Supreme Court reverses conviction
Aug 9th
The Connecticut Supreme Court issued State v. Finan [pdf] yesterday, reversing a conviction on the grounds that the lay opinion testimony of four police officers as to identification was indeed an opinion as to the ultimate issue and should have been excluded. The prosecution arose out of a robbery of a 7-11, whose security cameras caught two men [one later identified as the defendant] entering, robbing and leaving the store over a brief period of time.
Defense filed a Motion in Limine to preclude the testimony of the police officers as regards their opinion that the individual in the videotape was indeed the defendant. In what some would call "innovative lawyering", the state argued that the police officers would not testify as to their opinion, but rather their suspicion that the defendant was the individual in the videotape. The trial court granted the MIL, but allowed the police officers to testify as to their suspicion.
On appeal, the Appellate Court found that the state had improperly characterized the police officers’ testimony as suspicion rather than opinion (really?), but held that the identification issue, standing alone, was not dispositive of his guilt and therefore the testimony was permissible.
So let’s get this straight – in a robbery case, where the actual act is caught on videotape, identification is NOT the only issue? Almost all of defense counsel’s closing argument was geared towards identification; the state put on 6 ID witnesses.
On appeal to the Supreme Court, the defendant renewed his arguments and the state countered that if the Court found that the testimony was opinion, then it should be allowed under the identity exception to the rule. In their opinion, after much discussion of what "ultimate issue" really is, the Court decides that in this case, identification was indeed an ultimate issue.
The Court also ruled that there is no exception to the rule excluding testimony on the ultimate issue in a case. A new trial was ordered.
Living the bohemian lifestyle
Aug 9th
My current favorite CD is 
"Greatest Hits of the 20th Century" [warning: music starts playing when you click on that link] by Bela Fleck and the Flecktones. I saw Bela Fleck (among others) live this weekend and I have to say, it was one of the most exhilerating live performances I’ve seen in a while. I’ve been listening to this CD non-stop for about 48 hours now and I’ve been a little disinclined to post, preferring to reminisce about the blazing sun, the water and live music.
I’ve snapped back to reality now, so I will post shortly. I just wanted to recommend this CD to anyone who likes this genre of music – or even those who don’t.
the banishment clause
Aug 4th
UPDATE: Will Baude at Crescat has a follow-up post on the issue of sex offender zoning laws. How about a glance at procedural due process to determine whether the zoning ordinances were appropriately put into effect? I am no Administrative Law scholar (nor Conn. Law for that matter), but as is evident, something doesn’t quite sit right. To that end, I return to Smith v. Doe and CT v. Doe for guidance as to how this issue should be resolved.
Prof Berman highlights the growing blogosphere debate about sex offender zoning laws, which restrict where a sex offender may live. The debate was kicked off by the 8th Circuit’s decision in Doe v. Miller [pdf] and the Iowa Supreme Court’s decision in State v. Steering [pdf]. First, a post at PrawfsBlawg analyzed whether the 8th Circuit decision was correct in rejecting, among other things, the "fundamental right to live where you want" argument.
To me, the most interesting part of the 8th Circuit’s opinion was its rejection of the plaintiffs’ claim that there is a “fundamental right to live where you want.†The
court basically quoted Washington v. Glucksberg’s two-pronged test for
new fundamental rights (is the right deeply rooted in the nation’s
history and implicit in the concept of ordered liberty?), and said the
plaintiffs failed to develop an argument for how that right satisfies
those prongs. But is it really so hard to construct such an argument? While
early American municipal ordinances sometimes confined members of
certain ethnic groups to ghettos, these laws are rightly viewed today
as embarrassments, though perhaps our revulsion has more to do with
ethnicity than ghettoization as such. Still,
setting aside banishment laws and particularized restraining orders, I
can think of little historical precedent for states preventing citizens
from living in homes they can afford to buy, let alone rendering entire
cities off limits to undesirables.
This prompted a response from Crescat, which explores the ex-post facto and equal protection challenges. I am in agreement with the sentiment that the Supreme Court decisions [CT v. Doe and Smith v. Doe] in the ex-post cases involving sex offender registries might not have been wholly correct.
For reasons that have never quite been clear to me,
the Court has held that a punishment is criminal only if it is really
really obvious that the punishment is criminal, or if the legislature
says it’s criminal. This means that as a matter of fact, if local
legislatures want to avoid the presumption of innocence, the ex post
facto ban, or any of the vast constellation of protections for those
accused of crimes, they can frequently do so.
Finally, a rebuttal from PrawfsBlawg, posing a hypothetical involving obese people. The post asks why there is this hypersensitivity toward sex offenders when no such restrictions are placed on other "criminals", such as those convicted of murder. I have frequently asked this question myself. The comments provide some insight there, but I’m still not convinced. The thrust of the argument seems to be the degrees of separation between the offender and the victim. "Statistics" seem to indicate that sex offenses are committed more frequently by someone close to the victim; either a neighbor or a family member, whereas murders, robberies and the such are usually committed as a result of gang violence, relationships gone bad, drugs and so forth. This leaves families with a vulnerable feeling with regards to sex offenses. Therefore, keeping sex offenders away from families will reduce that risk. That argument however, contradicts itself. If the fear is the degrees of separation and familiarity between the victim and the offender, then it has nothing to do with who lives in the neighborhood, but more with who you know and let into your house.
Another problem is that all sex offenders seem to be lumped into one big general category. You have those convicted of sexual assault in the first degree and those convicted of public indecency. Unfortunately, most states (barring NJ, I think), have no system of evaluating the risk posed by each individual. Almost anything, these days, will make you a violent sex offender, which is simply not true. We need a better system to evaluate the level of risk, such as with parole. Not everyone who is eligible for parole gets parole, based on their potential risk. Such a system needs to be in place for sex offenders as well, to weed out the truly harmful from those who aren’t.
Let me go back to the SCOTUS cases for one minute. I found this interesting passage in Smith v. Doe, which might have a bearing on the zoning restrictions:
The Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint. Hudson, 522 U. S., at 104. The Act’s obligations are less harsh than the sanctions of occupational debarment, which we have held to be nonpunitive. See ibid. (forbidding further participation in the banking industry); De Veau v. Braisted, 363 U. S. 144 (1960) (forbidding work as a union official), Hawker v. New York, 170 U. S. 189 (1898) (revocation of a medical license). The Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.
In CT v. Doe, they don’t reach the issue of whether posting of the information on the website without a risk assessment is a deprivation of the right to due process.
In short, even if respondent could prove that he is not likely to be
currently dangerous, Connecticut has decided that the registry
information of all sex offenders–currently dangerous or not–must be publicly disclosed. Unless respondent can show that that substantive
rule of law is defective (by conflicting with a provision of the
Constitution), any hearing on current dangerousness is a bootless
exercise. It may be that respondent’s claim is actually a substantive
challenge to Connecticut’s statute "recast in ‘procedural due process’
terms." RenoFlores, 507 U. S. 292, 308 (1993).
For more on this, see Prof. Berman’s posts here and here, and my posts here.
Brain-dead VA woman gives birth
Aug 3rd
In what is a profoundly sad story, a brain dead woman in Virginia gave birth yesterday. Apparently, she suffered a massive stroke while pregnant and was kept on life-support long enough to be able to deliver the baby without harm (about 3 months). Sad, sad…
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