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Lots and lots of interesting decisions this week, both from SCOTUS and the CT Supreme Court. For Kennedy coverage, the best place to go is Sex Crimes. Giles is the potentially more interesting decision for the criminal defense practitioner. I should have something up on Giles later today.

Then, of course, there’s the gun ban case, which will be announced today. SCOTUSblog will have up to the minute coverage.

Of even more interest to the CT practitioner should be yesterday’s decisions by the CT Supreme Court in Salamon (majority, concurrence, concurrence and dissent) and Sanseverino (majority and dissent).

Not only do these decisions make me look foolish, but they also overrule very recent precedent. In doing so, CT now comes in line with a majority of states (and common sense) by differentiating between kidnapping and unlawful restraint.

Until yesterday, any slight restraint on a victim during the commission of another felony could be charged as kidnapping - a B felony carrying a 20 year penalty. Now, the court has backtracked and said that in order to prove kidnapping there must be something more than just the restraint required to carry out the underlying felony.

Where this will affect practice is that prosecutors will no longer be able to charge every defendant with kidnapping, no matter how slight the restraint. Those defendants will have to be charged with unlawful restraint - a B misdemeanor.

The decisions are dense and very interesting, so I will have full posts on them as soon as I’ve had a chance to digest them.

Alternate title: It’s better to keep your mouth shut and let people think you’re stupid…

From CrimProf and Appellate Law, this story about a growing “trend” where judges are preventing witnesses from using words that are legal conclusions. Sound familiar? The springboard for this story is the Tory Bowen case (what I call the “banned word” trial), where a State judge precluded her use of the word “rape”, among others, to describe her ordeal and she sued in Federal court.

The story cites some sort of national trend - and that voice of prosecutorial reason Joshua Marquis - in making its point.

Sex offenders are the modern witches. There are so many things that rankle when it comes to society’s increased crackdown on sex offenders and their subsequent treatment, but one that never fails to get to me is their ridiculously unfair treatment on probation.

True, there are some that need the intense supervision, that should not be permitted to intermingle with society, but those with the highest risk are the fewest in number.

Nuance in treatment, however, doesn’t seem to exist. So the heavy chains of probationary conditions apply to all “sex offenders” across the board: be it the 19 year old who had sex with his 15 year old girlfriend or the sex offender convicted of inappropriate touching as opposed to the serial rapist.

To begin with, when a pre-sentence investigation report is prepared prior to sentencing, the probation officer is free to replace the results of any evaluation with his/her own “judgment”. I often see reports in which they state that the defendant was evaluated as having a very low risk of re-offending, yet, because in the probation officer’s judgment there were multiple victims, the defendant is actually a medium-to-high risk of re-offending. I’ve seen that recommendation even in cases where the defendant was convicted of assaulting one victim and acquitted of the others. So now we have somenoe with no appropriate training making these judgments and thereby controlling the destiny of a defendant.

When a defendant then starts probation, he is expected to undergo sex offender treatment. It doesn’t matter if he maintains his innocence or if he pled under the Alford doctrine¹ [pdf]. If he fails to admit² [pdf], then he has violated his probation.

So, probations now offers an attractive alternative to defendants: take a polygraph. If they pass, they will not have to admit. If they fail, they must admit.

Polygraph testing is an inexact science and the results are unreliable. The results are open to interpretation and subject to the view of the examiner and are generally inadmissible in CT courts (See State v. Porter, 241 Conn. 57). So while the polygraph examiner on the State’s payroll might say that the defendant failed the polygraph, an independent examiner might well say he passed. However, the State routinely uses the failed polygraph to institute violation of probation proceedings, notwithstanding an otherwise unblemished record on probation.

There is also a split among prosecutors in their reliance on polygraphs (at least that I have seen). Some leave it up to probation to determine whether a defendant is in compliance while others view defendants passing a polygraph and not having to admit as violating probation (because they didn’t actually admit to their crimes).

It doesn’t end there, however. These polygraphers don’t limit their questions to the crime for which the defendant has been convicted. They start asking more general questions: “Have you ever molested someone else?”, “Have you committed another crime for which you haven’t been caught?” There is no Fifth Amendment protection. These questions have been deemed legitimate and the responses can often lead to a violation of probation. Even if the answers to questions about the crime for which the defendant is on probation are deemed “honest”, if the answers to other questions, about other supposed crimes are “deceitful”, then the defendant is written up for failing to pass the polygraph and a warrant issues.

Defendants then come to us to seek advice. There really is nothing we can tell them. “Yes, I know you maintain your innocence. Yes you did not do this. However, they can force you to admit”.

The only option available is to indirectly advise the client to “tell probation what they want to hear”, which, in my opinion, is an untenable option.

While polygraph results may or may not be admissible in a VOP hearing, they certainly can be used by a judge in determining what sentence to impose after a violation is found.  The outcome is generally not good.

So the sex offender on probation is essentially screwed. Whether it is registration, residency restrictions or the onerous “treatment” conditions.

I wonder what this does for treatment of sex offenders. I’m sure some of them lie and admit, just to get it over with. Is that what we really want? Is admission of the crime such a necessary part of this “treatment” and why are prosecutors, probation officers and judges so hung up on this admission. If the probationer shows a pattern of non-compliance, then I understand issuing a warrant. If, however, this is the only blemish on an otherwise satisfactory record of compliance, then is it really worth it? Don’t we have enough people in prisons already?

1. State v. Faraday, 268 Conn. 174 (2004). 2. State v. Bruce T., 98 Conn. App. 579 (2006).

Alternative title: “Our standards are so low”.

Remember David Pollitt? [Previous posts here, here, here and here] Yeah, he’s the guy whose release from prison after maxing out from his sentence had his rich neighbors in an uproar. They didn’t want him living in their cul-de-sac, so they staged protests and feverishly dialed into “Idol Governor”, simultaneously pressing 0 for the operator (I guess 1 for complete abrogation of the rule of law and 2 for abandonment of common sense weren’t enough. They went straight for the operator Governor).

So the Governor, as any good Governor would do, stepped in and asked the chief prosecutor attorney general to intervene to see “if we could have this here guy locked up longer than his sentence”, because well, “I’m the Guv’nor dammit and I should be able to”^.

Thankfully, the only person who could actually make Mr. Pollitt go back to jail remembered that there’s something called the law, which is written in these things called books, to which we do something called follow.

Judge Susan Handy was rather skeptical of the legal basis for this “request” from the Governor and reached back into obscure legalese to pull out a rarely heard term called “Illegal”. Never heard of it.

Anyway, whatever this “illegal” action was, it was coupled with some other bizarre phrase known as “standing”. I guess if you aren’t standing, you can’t do something illegal. My head is spinning.

[insert deafening silence, followed by sound of crickets chirping]

So. The point of this nonsense post is that this past Thursday was the 50th Anniversary of Law Day. Judge Handy received an award from the New London County Bar Association. In keeping with the tradition that lawyers are the most uncreative people on Earth, who have an affinity for campy, cheesy names, the award was called the Liberty Bell Award. Because, I guess, someone rang Liberty’s bell.

“I am both humbled and, I have to say, completely overwhelmed, to receive an award for simply doing the job you entrusted me to do,” said Handy, who was appointed to the bench 15 years ago and serves as presiding judge for criminal matters in the New London judicial district.

Let’s be clear: this post is not about Judge Handy at all. She obviously did the right thing. What disturbs me is that doing the right thing now leads to awards and needs to be recognized. How skewed has our notion of justice become that a judge who follows the law and does the most obvious thing has be to feted.

“Let’s imagine if Judge Handy had not ruled as she did,” [Chief Court Administrator Judge Barbara] Quinn said. “A man who had completed his prison sentence would have been unjustly held. The neighbors and some politicians would have rejoiced, along with many members of the public. I would submit to you, however, that the damage to the constitutional rights of every member of the public would have been shaken to the core.”

Why must we imagine? It should be unthinkable that she would rule any other way. This should have passed silently in the night - yet now we have to beat it over people’s heads that she did the right thing.

Congratulations, Judge Handy and I hope this keeps giving you the courage to do the right thing. What worries is me is now I don’t know how many judges would have done the opposite.

^Obviously she did not say that. I don’t know what she said. That was an attempt at humor.

It’s that time again! The docket has been released, so it’s time to preview the upcoming cases at the Connecticut Supreme Court. It’s no wonder that they sent me a notice saying: “Attorney Trumpet [yes, that's my last name], we regret to inform you that yours was one of the many qualified petitions for certification we received and we have only so many openings, so we will be unable to extend you an invitation to speak before us.”

Anyway, on to the good stuff - and believe you me, there is LOTS of that! There are Constitutional challenges to the validity of statutes and the big Courchesne death penalty appeal.

March 12 @ 10:00am - State v. Fernando A: The certified issue is whether the defendant was entitled to an evidentiary hearing on a protective order. Section 54-63c, as amended, provides that such a protective order will remain in effect until the arrested person is presented to the Superior Court for arraignment and that, at the arraignment, “the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order.” On day one, the defendant requested this hearing. The court said it was too busy, so the hearing would be held four days later and issued a protective order. Four days later, another judge said that he had been heard for the purposes of this section and no evidentiary hearing would be held. The defendant also claims that the protective order deprived him of fundamental rights, including the right to occupy his home and the right to the custody and companionship of his children, constitutional guarantees of due process demand that he be afforded an evidentiary hearing concerning the protective order.

March 13 @ 11:00am - State v. Carrasquillo: This is an Eight Amendment challenge to the application of the murder statute to juveniles. The defendant argues that § 46b-127 (a) and General Statutes § 53a-35a (2) violate the cruel and unusual punishment clause because they automatically subject all fourteen and fifteen year old children charged with murder to the mandatory minimum sentence of twenty-five years of incarceration without any consideration of mitigating factors regarding their juvenile status. Relying on Roper v. Simmons, 543 U.S. 551 (2005), he argues that even juveniles who commit serious crimes cannot with reliability be classified among the worst offenders because (1) a lack of maturity and an underdeveloped sense of responsibility are found in juveniles more often than in adults; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures than adults; and (3) the character of a juvenile is not as well formed as that of an adult. Further, the prosecutor referenced during closing argument, over objection, “evidence” of the defendant’s motive that was not adduced at trial.

March 18 @ all day - State v. Courchesne: Oh boy. Lots and lots of stuff. Whether an unborn child is a “person”. Whether the defendant intended to murder the unborn child. During the trial stage, the trial court ruled that the aggravating factor - killing in an especially depraved, heinous, cruel manner - had to be proven as to both victims. State took an interlocutory appeal. Supreme Court held that it had to prove that as to only one. It also discussed its approach to statutory construction and stated that it would ordinarily consider all relevant sources of meaning of a statute without first having to determine whether the language at issue is ambiguous. As a direct result of that decision, the legislature passed Section 1-2z, stating that you have to look at the plain meaning of the language first.

The dp claims are: (1) Should the trial court have dismissed the counts alleging murder of an unborn child because an unborn fetus is not legally a “person” and, even if the unborn fetus was a person, the defendant lacked the requisite intent to kill her? (2) If the trial court correctly ruled that someone who injures an unborn fetus can be prosecuted for murder if the fetus is subsequently born alive and then dies, was there sufficient evidence presented to show that the child was alive when the cesarean section was performed? (3) Should the trial court have granted the defendant’s motion to impose a life sentence without release where the defendant argues that Connecticut’s capital punishment scheme gives prosecutors unfettered and standardless discretion to seek a sentence of death, that such discretion is unconstitutional under both the federal and state constitutions, and that such discretion violates General Statutes § 53a-46b (b) (1), which states that a death sentence shall be affirmed unless it was “the product of passion, prejudice or any other arbitrary factor”? and (4) Should the trial court have instructed the jury that for the death penalty to be imposed for the capital felony of murder of two or more persons in the course of a single transaction and where the state has alleged the aggravating factor of the offense’s being “especially heinous, cruel or depraved” under General Statutes § 53a-46a (i) (4), the state must prove that factor as to both victims?

That should be a fun hearing.

There are two standby cases:

Bryant v. Commissioner: IAC claim on the grounds that trial counsel did not call 4 credible witnesses who would testify that the victim died not of a beating, which was the theory at trial, but of a gunshot wound. Habeas corpus court granted the petition and ordered a new trial. Appellate Court reversed, holding that trial counsel’s decision not to call the witnesses was a tactical decision. Supreme Court will review.

State v. Boyle: An issue that is becoming prevalent nationwide. Defendant was convicted of a DUI and sentenced to probation. Probation moved to modify conditions and wanted to include sex offender evaluation and treatment. This request was based on the probation officer’s discovery that the defendant was convicted of sexual assault in 1997, that he was on the sex offender registry and that a parole board evaluation indicated that his risk of recidivism for sexual assault was high and his level of dangerousness was severe. At the hearing on the motion to modify, the probation officer testified that it is the policy of the office of adult probation to request that a probationer abide by sex offender conditions of probation when the probationer has a prior sexual offense conviction and is still on the sex offender registry. The probation officer further testified that he believed that the added condition of probation was necessary because the use of alcohol was a factor in the sexual assault case. The trial court granted the motion. The Appellate Court reversed, holding that sex offender treatment was not rationally related to the purpose of rehabilitation for a DUI conviction. Supreme Court will reverse review.

Remember David Pollitt? (Previous posts here, here, here and here.) After trying to block his move into their neighborhood, and failing, residents are now trying to get their money back. Literally. They’ve asked the town to reduce the property tax assessment of their homes by as much as 17%.

Carolyn Nadeau, president of the Connecticut Association of Assessing Officers, said the request may be the first of its kind in the state.

“I’ve never had an instance like this,” she said. “Any number of times there are distractions that people feel negatively impact their property values, such as unsightly blight, but we haven’t seen this.”

The company that revalued all properties in Southbury last fall rejected the residents’ plea for help. The new values took effect Oct. 1 and Pollitt didn’t move to the neighborhood until Oct. 12.

It’s tough. My initial reaction is to roll my eyes, but only because I was quite disgusted with the nonsense that went on the first time around. I can understand that their property values probably have taken a bit of a hit, and they’re trying to do something, anything about it. But they’re not the only ones. Residents throughout the state have to deal with this as sex offenders (and other offenders) move into their neighborhoods. What about your friendly neighborhood DUI repeat offender? I’d be worried about that kind of offender weaving around my street, drunk, knocking pedestrians off.

What will happen when other registries go online? Will it just suppress the housing market as a whole? While prices go down across the board? Or will people remember that ex-convicts have always lived amongst us and move on? What else can be done?

I’m sorry, I have to say it. She’s freakin’ scary now. I think she’s lost it and I can almost picture her sitting in a darkened room, illuminated by frequent lightning, hair standing up, rubbing her hands together, eyes pointing in separate directions, cackling, laughing maniacally as she imagines these proposals.

The Governor, as part of her budget and state of the state speech yesterday, proposed these changes to the criminal justice system. Are you ready?

I will be submitting legislation to require a mandatory minimum sentence for Burglary in the Second Degree and to change Burglary in the First Degree to include burglary of an occupied dwelling, day or night.

I wonder if she reads the current statutes before making these proposals: “By Jove! I’ve got a brilliant idea! Let’s outlaw one man killing another!”

I would also like to put in place a three-strikes law for those convicted of three violent felony offenses.

And to satisfy those who thought mistakenly there was an “out” in the original proposal, I am removing the possibility of a case review after 30 years. Now it’s three strikes for violent felony convictions and you’re truly out.

There you go. “Original” three-strikes. Completely ineffective and counter productive. I’m also particularly tickled by the “to satisfy those…” comment. American Idol Governor, indeed.

I am also proposing legislation to significantly toughen our laws dealing with sex offenders.

All too often we hear or read about a predator attempting to entice a child online or about a sex offender failing to register as required.

One simple fix I am proposing is to bar offenders from legally changing their names to escape police attention or to avoid registration.

Again with this recidivism nonsense and this shows real ignorance on the topic. Yeah, we hear about MySpace predators because every single time it happens, there’s a media frenzy. Yet, 90-ish % of “predators” will be within the family. They don’t need myspace.

This name changing this is also odd. Why can’t they be allowed to change their name, as long as they register? To change your name, you have to get an order from Court, no? So if you’re on the sex offender registry, it should be pretty easy for someone to figure that out and make the change in the registry.

But I want to go further. I want to require offenders to report in person to police and to provide the name and address of their employers and the license plate number and description of their cars.

And they will also have a special imprint on their driver’s licenses.

Further than need be… This is scarlet letter territory we’re entering into here. Why should the sex offender have to provide the name of his employer? Do we want to further outcast these people? Look at my post from the other day, about the sex offender who can’t be located because he’s been kicked around like a football, or the sex offenders living under the bridge in Miami, one of whom has decided to disappear. Yeah, that’s public safety.

And in the name of public protection, I am calling for another significant change: I want all persons arrested for an A or B felony the most serious of criminal charges to provide DNA samples immediately upon arraignment.Those convicted of lesser felonies and certain misdemeanors must provide a DNA sample at conviction.

These samples will be processed to see if there are any matches related to unsolved crimes.

Incredibly, the law on the books only requires DNA samples to be taken at the end of the inmate’s sentence.

This is where one eye starts spinning uncontrollably, some cats enter the picture and fade to black.

This is just frightening. Absolutely frightening. Presumption of innocence? Them’s just fancy terms. Don’t mean nothing. You’re arrested so you’re guilty. Give up your damn DNA. Heck, I got a better idea. Why wait for people to be arrested. Let’s just have the police go to everyone’s homes. We can all stand in our yards in a line and the police can walk by, taking our DNA. You know, because innocent people don’t exist. Diogenes was right. There isn’t an honest man.

By the way, the statute calls for DNA to be collected after conviction. DOC can choose to collect that sample upon initial entry and they don’t always collect it prior to release.

She’s absolutely lost it and has no idea what to do and what not to do. Pandering is scary enough. This delusional law-making is scarier.

More from CTLP, CT News Junkie.

Disclaimer: This is my opinion. I don’t really think she looks like that in her home. That was my poor attempt at satire. Also, I don’t know what the public defender’s office’s official position would be. This is just mine.

A few days ago, I noticed a story in the Boston Globe about residents in a New Hampshire town who rejoiced after successfully getting a sex offender to leave their community. It was of particular interest to me because that sex offender was from Connecticut and the story said he would be returning here.

So it came as no surprise when I saw this report today. It says that he is on the move - perhaps with a one-way ticket to prison.

This is really stupid and I think the “biggest waste of law enforcement funds this week” nominee. The offender, Douglas Simmons, was in compliance with registration requirements while he lived in CT. Then he decided to move to NH. So what does he do? He notifies the police in New Hampshire when he gets there. Not good enough, say the police. He has to inform police in Connecticut as well, that he is moving out of state.

This seems pointless to me. Either he is living in the state and in compliance or not living in the state and therefore shouldn’t have to comply. Some law enforcement agency knew of his whereabouts at the mandated interval. What difference does it make that it was New Hampshire law enforcement?  The NH police contacted CT to say “hey, one of your guys moved here”. Apparently, they’re not to be trusted.

The statute has has violated is C.G.S 54-252, which provides in relevant part:

If any person who is subject to registration under this section changes such person’s address, such person shall, without undue delay, notify the Commissioner of Public Safety in writing of the new address and, if the new address is in another state, such person shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders.

I want to know what undue delay means and what the delay was in this case. Either way, the prosecutor handling this case should really look at this and see whether this needs to be prosecuted. I don’t think it does.

Now, his current whereabouts are unknown, because, you know, he was kicked out of his last town. Do you blame him? This is a guy who committed a pretty ugly offense. He served 22 years in jail for it (day for day, it seems). Then he gets out and has to register for life. Which he does dutifully. Then he decides to move. So thinking logically, he notifies the town he moves into. They freak out and kick him out. He leaves and moves back to his home state. Now he’s wanted by the police and will have to go back to jail for some bs violation. I’d be tempted to give the State the finger at that point. Wouldn’t you?

Jami Floyd over at Court TV calls the media and politicians out on why female sex offenders are not made into monsters: because they’re hot, because they’re women and because women like them were the objects of the fantasies of the men that now control our legislatures and media. She’s got a point.

Debra Lafave, the FL teacher who was spared prison time after having sex with a teen, is back in court facing a probation violation because she spoke to a 17 year old female co-worker. The first time around, her lawyer seemingly argued that she shouldn’t go to jail because she was too attractive. Something about meat and lions. WTF.

USA Today has two pieces covering the growing problem of sex offender homelessness due to strict residency restrictions and the real dangers posed by it.

Thousands of convicted sex offenders are reporting to police that they are homeless, raising concerns that their lack of a permanent address could make them difficult to track, a USA TODAY analysis shows.

Sex offenders, who are required to register with police and often barred by law from living near places where children gather, list addresses such as a tent, “near a bike path,” “behind a cemetery” or “woods behind Wal-Mart.”

Two-thirds of the states allow convicted sex offenders, including violent predators, to register as homeless or list a shelter or inexact location as long as they stay in touch with police.

At least a dozen states list hundreds of sex offenders without specific addresses. California registered 2,716 as “transient.” Washington state listed 564 as homeless, but the number is probably much higher, says Carolyn Sanchez of the Washington State Patrol.

Arkansas, Connecticut, Florida, Illinois, Maine and other states say the number of homeless sex offenders is rising. Landlords often won’t rent to them, and laws in dozens of states and hundreds of cities bar them from living near areas where kids play.

The primary cause of this homelessness is their inability to secure any sort of housing in cities and towns due to excessively strict residency restrictions. This creates public safety problems on two fronts: It makes it difficult for law enforcement to keep track of them and it increases the sense of isolation, frustration and loneliness felt by the homeless.

Residency restrictions in their current form have no visible impact on the reduction of crime and in fact, may well end up being counterproductive.

Sex Crimes also has this covered.

That some sex offenders in this State have no facility or residential program to go to after release is not news (especially since David Pollitt’s saga), but now we are seeing more examples of this problem (or maybe it is just being covered more by the MSM).

Ransome Lee Moody is a three-time convicted rapist who has finished his prison sentence but is still so dangerous and calculating, officials testified Thursday, that he defies all conventional sex-offender treatment and no facility — in this state or beyond — will take him.

Finding a permanent place for the 50-year-old Moody, who has served a total of 30 years in prison, is proving to be “an impossibility” even though a slew of state agencies are working on the problem, Superior Court Judge Robert L. Holzberg said Thursday at a hearing on the conditions of Moody’s probation.

Moody is not alone. At any given time, there are 50 to 75 sex offenders who have nowhere to go. They are staying in the shelters, Chief Probation Officer Dorian Santoemma explained, because they may be too risky for inpatient sex-offender treatment, or there’s no room in the programs, or there’s no living arrangement with relatives that would be appropriate.

There are only three shelters in the State that will accept them: one each in Hartford, New Haven and New Britain.

Holzberg rescinded a requirement that Moody be placed in an inpatient program because none could be found. The judge said that without “the good graces” of Warren Kimbro, the studious 73-year-old ex-Black Panther who runs Project More in New Haven, there would not even be a temporary solution to Moody’s placement problem.

“If we won’t take him, who will?” said Kimbro, whose programs help ex-convicts return to society. “Regardless of their offense, once they’re released, if we don’t assist them with re-integration, then we can expect them to re-offend.”

He can’t stay there forever. This will need to be addressed soon. I just hope we don’t go the civil commitment way.

Finally some good news on the criminal justice reform front. Mike Lawlor, co-chair of the Judiciary Committee, is also on the State Risk Assessment Board, which is charged with - you guessed it - assessing the risk of the state’s registered sex offenders. Lawlor wants to streamline the registry so as to provide more relevant information on those who have the highest risk of re-offending.

Lawlor sees room for improvement. He wants the Connecticut registry to attach “risk levels” to each offender to help people understand who poses a danger and who, likely, does not. It’s an idea modeled on states like Minnesota, Missouri and Colorado, where “actuarial” risk assessment—a social science-based prediction method—is used to analyze a sex offender’s likelihood of re-offending, and where only those determined to have a high risk are placed on the internet. Based on the experience of the states that have done this, high risk offenders typically make up only 10 to 20 percent of the sex offender population.

In 2006, Lawlor pushed for the formation of the Risk Assessment Board, charged by the legislature with analyzing the state’s more than 4,600 registered sex offenders and stamping each as high, medium or low risk. The board is made up of high-level public officials—the commissioner of Correction, the commissioner of Mental Health and Addiction Services, the commissioner of Public Safety, the chief state’s attorney, the chief public defender, the chairperson of the Board of Pardons and Paroles—as well as a governor-appointed victim’s advocate, forensic psychiatrist, a risk assessment expert and members of the relevant legislative committees, including Lawlor.

The article actually does a good job of explaining the risk assessment methods and compares it to the traditional subjective approach employed by therapists.

Further, people may finally be catching on to the real problems of registries and the dangers it poses:

It’s counterintuitive, acknowledges the study’s author, David D’Amora, a licensed therapist who heads the Center for the Treatment of Problem Sexual Behavior and sits on the Risk Assessment Board. But the reason for the possible increase [in recidivism], he says, is fairly straightforward: Registered sex offenders have a harder time getting jobs and finding housing, and people without jobs or housing are more likely to abuse drugs and alcohol and to re-offend. When your life’s a mess, the theory goes, it’s harder to keep your behavior in check. “When you over-respond to the lowest risk people,” says D’Amora, “you end up making them more dangerous.

“With the best of intentions we are putting in place things that are decreasing the ability for people to have appropriate jobs and appropriate living,” says D’Amora, “and those are two of the things that are most important to decrease recidivism. The unintended consequence is making things more dangerous.”

Of course, there’s a long way to go and with the current political climate, who knows if this will ever come to fruition. I hope it does. If not, can they at least legislate that condoms be made available in jails?

In the end, the Georgia Supreme Court achieved the correct result. In a 4-3 opinion [pdf - make sure you read both the majority and the dissent] issued today, it found Genarlow Wilson’s 10 year sentence to be “cruel and unusual punishment” for the crime of which he was convicted. However, I’m not sure this majority opinion is that sound or has any precedential value whatsoever.

Specifically, I’m not sure that its distinguishment of Widner [pdf] is appropriate. The Court says that the main reason Widner is distinguishable (in Widner, the defendant was 18 and the “victim” was a few days shy of 14) is because the legislative change that altered the punishment for Genarlow did not do so for Widner.

What troubles me about this is that the Court seems to take its cues on the “evolving standard of decency” from legislative acts. While it expressly disavows that contention, nothing else in the opinion seems to support that notion. The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that.

The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?

The Court also dismisses that dissent’s contention that this opinion would have implications for several other defendants. It emphasizes that this is a very limited factual scenario they are dealing with.

It seems to me to be a very result oriented decision (and they got the result right), but whether it would stand up to SCOTUS scrutiny is beyond me. Thankfully, the AG seems willing to accept the Court’s decision and doesn’t seem like he will appeal.

Other blog coverage: from SL & P (here and here) and MUCH more here (and in the comments), Volokh, ConcurringOpinions and OfCounsel. My prior coverage :

• Genarlow Wilson turns down ambiguous plea offer
• Genarlow Wilson wins habeas and state appeals

Connecticut was fast becoming a scary place to live. As yesterday’s post shows, residents of a small section of Southbury, a suburban town in Connecticut, were becoming increasingly concerned and paranoid with the news that one of their own was about to take in her brother - a convicted sexual offender - upon his release from prison. Mr. David Pollitt is scheduled to be released tomorrow after serving the full length of his sentence and will embark on a torturous journey of five years’ probation.

Residents of that nook of Southbury, rightly concerned and wrongly outraged, embarked on a full-press lobbying of the Governor to keep this from happening. Scarily, she bit. This morning, she wrote a letter to Attorney General Blumenthal asking him if Mr. Pollitt could be confined beyond his legal discharge date.

While recognizing that Mr. Pollitt has served his sentence and that his release and probation are statutorily governed, we also have a duty to ensure that we have left no stone unturned in safeguarding the safety and welfare of the Southbury residents. Numerous children and elderly residents reside in the Fox Run Drive neighborhood. I am asking that you explore immediately the possibility of filing a motion in Superior Court seeking the delay of Mr. Pollitt’s release. This additional time will allow all interested parties to carefully review all possible safety measures that may be implemented to protect the Southbury residents.

There are several, several problems with this request that I intended to outline in full detail, but in light of recent happenings, will only mention briefly:

First, this exhibits a blatant disregard for law in the State of Connecticut and flouts the Constitutions of both the Constitution State and the United States of America. I cannot imagine that Gov. Rell is not adequately advised as to the illegality of her request.

Second, assuming that she is advised as to the illegality of her request, this can be nothing but blatant political pandering. Which is abhorrable abhorrent. You do not play with people’s liberty to further your political goal.

Third, she makes this request of Attorney General Blumenthal, who has zero standing to request changes in the conditions of probation. An appropriate request would have been one made to Chief State’s Attorney Kevin Kane, who I suspect might not have indulged her to the extent the AG did by filing this motion.

Fourth, her request indicates that the State agencies have not had time to evaluate the impact of his release into the community and make adequate preparations to safeguard the community. What, 24 years wasn’t enough to get their act together? [By all accounts, let it be noted, probation has done an excellent job of going out to the community and spending a significant amount of time attempting to assuage the fears of the residents. Paranoia, however, cannot be easily reassured.]

Finally, a half-way house or an in-patient facility is not an alternative form of probation, but an alternative form of incarceration. Mr. Pollitt has fully satisfied his period of incarceration and any such admission to a half-way house or in-patient facility would be the equivalent of keeping him in a correctional facility.

So, as you might know by now, AG Blumenthal did file a motion in New London Superior Court this afternoon, which was, by all accounts, summarily dismissed by Judge Susan Handy. She may not realize it (she probably does), but she has single-handedly saved the rule of law in the “Constitution” state.

Judge Susan Handy told Attorney General Richard Blumenthal that he has no standing to intervene in the case. Blumenthal said he was acting on behalf of Gov. M. Jodi Rell.

[She] said 54-year-old David Pollitt has served his sentence and is entitled to his freedom.

If this motion were granted (or if it is granted on appeal - if they appeal), it will mark the end of the rule of law in Connecticut. What it will signal is that the State has the power to confine individuals beyond their legal sentences for specious reasons.

Gov. Rell has just issued a statement in light of Judge Handy’s ruling:

“I am very disappointed that this reasonable and prudent request was rejected,” she said. “Public safety is our top priority — I empathize completely with the residents of the Fox Run Drive community [in Southbury], and despite this decision I want them to know that everything possible is being done to safeguard their homes and families.

Forgive me if I scoff. I’m sure every community in the State has received such assurances when sex offenders are released to them on a weekly basis.

Update: aTypical Joe nicely ties this story in with William Saletan’s piece in Slate last week about “the age of consent” and emotional development of teenagers in which he offered some concrete proposals to revamp sex laws. Read ‘em both. Saletan concludes with:

I’d draw the object line at 12, the cognitive line at 16, and the self-regulatory line at 25. I’d lock up anyone who went after a 5-year-old. I’d come down hard on a 38-year-old who married a 15-year-old. And if I ran a college, I’d discipline professors for sleeping with freshmen. When you’re 35, “she’s legal” isn’t good enough.

What I wouldn’t do is slap a mandatory sentence on a 17-year-old, even if his nominal girlfriend were 12. I know the idea of sex at that age is hard to stomach. I wish our sexual, cognitive, and emotional maturation converged in a magic moment we could call the age of consent. But they don’t.

Original: It’s because of stories like this. There are several things about this that really piss me off. First, the accused is the 18-year old boyfriend of a 15-year old girl. However, the story refers to him as a “man” and the “victim” as a girl. Second, the sex was consensual. Third, the people with whom the 18-year old boy was living make it seem like he stabbed them in the back.

Police Chief James Strillacci says he’s upset that a young man he and his wife tried to help allegedly took advantage of their generosity.

The Strillaccis had taken Keith Armstrong into their home this past summer to give him temporary shelter from a broken home, according to the chief.

Taken advantage of their generosity? By having sex with his girlfriend? Huh? He’s an 18-year old boy with a girlfriend. What did you expect?

To those of you who might remember that Connecticut recently changed its “Romeo and Juliet” law to exempt from prosecution those teens who were within three years of each other, the story is quick to point out that the boy is 3 years and fifteen days older than the girl. Clearly those fifteen days make the difference between a predator and just kids having sex.

Perhaps the prosecutor will be sensible enough to nolle the charges; otherwise this kid is looking at jail time and lifetime registration as a sex offender.

How did the cops find out? The girl’s step-father. Parenting by prosecution.

These laws are just plain stupid. I’m pretty sure this is exactly what the legislature intend to preclude from prosecution and yet here we are.