I report, you decide:
Sex offender hysteria is well documented. Apparently, the Federal Government is also not immune from its mind altering effects. Consider the case of John Doe in Ohio. John Doe, convicted in 1993 of sexual battery in state court, is currently on Federal probation for unrelated drug offenses.
A zealous probation officer must’ve looked at Doe’s criminal record and noticed the sex offense conviction. So, the probation officer required Doe to register as a sex offender in Ohio. Only one problem: Ohio state law exempts Doe from registering.
And thus, the tug-of-war between the Federal Government and the State of Ohio begins. Whose requirements prevail? Or will it all be disregarded because the object of this “war” is to get a heinous, evil, dangerous, disgusting, despicable sex offender to register his whereabouts? Some counties in Ohio have had the testicular fortitude to tell the Feds to stick it, but unfortunately not the county in which Doe resides.
The Ohio Justice & Policy Center sued on the offender’s behalf after his probation officer ordered him to place his name on Ohio’s registry of sex offenders, even though the state exempts him from the database because he served his sentence before the registry law took effect in the late 1990s. The lawsuit says the registration requirement violates the offender’s rights and also is unconstitutional because it allows the federal government to trump a state law.
“There is no question he does not have to register under state law,” said Margie Slagle, an attorney with the Ohio Justice & Policy Center. “The feds think they can ignore Ohio’s wishes and make him register. It’s just bizarre.”
But a lawyer for Hamilton County Sheriff Simon Leis, who maintains the county’s registry, confirmed the county has been registering offenders at the request of federal probation officers.
“The bottom line is we have had guys showing up with an order from a probation officer saying, ‘I’m required to register,'” said Dave Stevenson, an assistant county prosecutor. “So we register them.”
And therein lies the Catch-22. If the State registers Doe, it is an illegal act in violation of the laws of the State of Ohio. If the State doesn’t register Doe, he’s in violation of his Federal probation. So who wins? The State or the Feds? Either way, there’s only one loser: the sex offender.
Update: An alert reader asks if Ohio is the only state that is facing this problem. Do any of you know whether other states have faced this issue? Any lawsuits pending? Any AWA expert? CRY, you out there?
H/T: 2L reader
I haven’t done this in a few months, so on this Friday the 13th let’s take a look at what brought you psychotic internet readers to my blog. As always, act your age.
- Of all the searches, the top non law related search was for “naked pictures”. Unfortunately, all they got was this lousy post.
- “me naked” was also popular. Presumably, these people have no mirrors.
- “is law school for me” is also a surprisingly common phrase used in search engines, just behind “what is my name”.
- “shame on you”. yes, shame on me indeed.
- “stachatory rape laws”
- quite a few visitors admonished me to “learn law” or, in the case of the more articulate ones “learn the law”.
- I like the simplicity of this one: “beer”. Yes, please.
- “Eye of the beholder porn”. That’s a new fetish.
- my personal favorite: “gravity defender”. Now if only they meant gravitas defender.
- “let me see you naked”, to which I say “buy me a drink first”.
- “humorous porn”. Porn is serious business.
- “Is it ethical for a public defender to refuse to represent a person believed to be guilty?” I get this one a lot, so let me say this once and for all: No.
- “halp”. bai, thx.
- “purple heart trees”. And they say you have to earn one.
- “asleep”. Okay, I get the hint.
I have long complained about the failure of governments to engage in any sort of meaningful re-entry for inmates. For a vast majority of released felons, prison is a revolving door. Without any training, education or skills, job prospects are dismal. With no job, there is no money and where there is no money, there is the lure of crime to make some quickly.
Which is why I was pleasantly surprised this morning, while listening to Where We Live on NPR. The guest was John DeStefano, mayor of New Haven, and he was discussing the policy he seeks to implement in the city: ban the box. No, this is not some traffic related policy, as I first thought, but a clever scheme aimed at integrating ex-felons back into the community.
Ban the box refers to banning employment applications from listing a “box” that asks applicants whether they are ex-felons. This allows ex-felons to be on the same footing as any other applicant, by preventing would-be employers from discarding them at the get-go. I’m embarrassed that this story has escaped my attention for three months now, but the wonderful New Haven Independent is all over it:
The proposal directs the city not just to remove the box, but to refrain from asking applicants about their criminal history during job interviews. If the city decides to offer an applicant a job, then the human resources office will do a criminal background check. If a conviction shows up, then the applicant will return for a subsequent interview to determine whether or not that background renders him or her unfit for the job.
What this does is gives ex-felons a fighting chance at reintegration. And this also gives the city of New Haven some hope. DeStefano has long been complaining about the dumping of released inmates into his city, without any support or supervision from the State. He’s stepped up and taken a route that might lead to a reduction in crime. On the show this morning, he explained his reasoning thusly (and I am paraphrasing):
People say that everybody deserves a second chance – and yes they do – but that’s not why I’m doing this. If the ex-felons are positively engaged in the community and have the hope of a job, then there’s a greater chance that they won’t return to a life of crime and won’t be running around our streets shooting other people.
The numbers are telling. An estimated 70 percent of non-fatal shooting victims and 50 percent of murder suspects have criminal records. Studies have shown that ex-cons who have jobs are less likely to commit new crimes. And banning the box is the first step toward reducing crime and re-integrating felons back into society. It gives them hope and when they have hope, we have hope.
One person after another testified that having to confront the box creates a sense of hopelessness for ex-offenders. “I can’t even tell you how I feel just to even look at that box on an application,” said Derike Anderson. “It’s almost like all hope is lost, because I gotta answer that question … I feel if that question wasn’t there, I’d have half a chance, just to get myself in the door and into an interview, I think I can sell myself very well.”
Kudos, New Haven, you’ve done it again.
In this line of work, I don’t think there’s anything more heart wrenching that sitting across from a likely innocent client and having to tell him that there’s no way to prove that innocence and then watching him hold back tears and decide between two morbid choices: accepting the plea offer and spend the next 15 years locked up or go to trial and risk 60 years.
Sometimes I feel overwhelmed.
The Plea Jury is the title and subject of a new (draft) paper by Laura Appleman, a professor of law at Willamette and blogger at The Faculty Lounge, which goes into some length about the failure of the plea bargaining system and how it should be replaced by this innovation.
The plea jury, essentially, would be a jury of lay persons who would “preside” over the plea bargaining process. It would make the determination of the voluntariness of the plea, decide whether to accept the plea and listen to the defendant’s allocution, ultimately settling on the punishment to be imposed, if the recommended sentence is unsatisfactory.
This, according to Appleman, while not being a pancea, would substantially reduce the problems with the plea bargaining process as they currently stand.
I spot some problems with this right at the outset, but I’m not willing to completely dismiss it out of hand. The problems, of course, are the greater participation of the “public” into a mechanism where their encroachment is already great. The plea bargain is essentially a contract between the State and the defendant. Her proposal of the plea jury would inject a section of the public into that contract, as an ultimate arbiter. The rights of the defendant would yet again take second place to this retributive theory and the primacy of the public.
She also makes much of the jury’s ability to discern whether the defendant is showing honest remorse, does accept responsibility and so on.
On the whole, the idea isn’t terrible. There is some appeal to the community aspect of it: the general public would get a better sense of the criminal justice system, they would have a greater idea of the types of sentences imposed and perhaps be exposed to some of the coercive aspects of the system. But as with all things, this would be a double-edged sword. The “public” has the potential to be reactionary, is most likely to be untrained in the law and is apt to place emphasis on things that have no role in the criminal justice system. And all of those potential negatives would further hurt the defendant in this process.
The paper does “acknowledge” that defendants would take a hit in this plea jury system, but doesn’t explore it at all, dismissing it in two short paragraphs:
Incorporating a plea jury makes sense as a means to protect public interest, since it protects the collective jury right from obsolescence, provides the guilty plea with a theoretical framework, and removes the screen from the behind-the-scene machinations of plea agreements. But enforcing the public interest can potentially infringe upon the rights of the defendant, or result in competing definitions of rights. Moreover, using a plea jury may result in more extreme charges and/or higher sentences for the offender in question, depending on how much behind-the-scenes bargaining occurred before the plea was presented to the plea jury.
Again, however, introducing sunshine to the guilty plea process, even if it does produce less desirable results for some defendants, is on the whole a good thing. In the long run, involving the public in the criminal justice process, as it used to be, demystifies both courts and the ways criminal offenders are judged and sentenced. Hopefully, a greater understanding of the criminal justice system would ultimately lead to fewer demands for.
In the criminal justice system, the rights of the defendant should be paramount.
You can read the paper for yourself and determine how you feel about it. If you’re like me, then you will notice that much of the paper is devoted to fixing problems that arise not by the defendant’s doing. Many of the ills this aims to cure – lack of involvement, coercive atmosphere, lack of reintroduction into the community, lack of confidence in the fairness and impartiality – are indictments not of the defendant, but rather the players involved in the justice system.
The complaint is with the prosecutors who strong-arm defendants into taking absurd plea offers; with the defense attorneys who are complicit; with judges who permit such an atmosphere to persist, who are willing to give the police the benefit of the doubt at the expense of the Fourth Amendment; with appellate judges who permit the existence of the “trial tax”; the legislators who act “tough on crime” without any understanding of the implications of it; the media who look only for a soundbite and do no actual reporting.
So forgive me if I’m a little skeptical of a proposed system where the only player who has to sacrifice further to correct it is the only one who is not a cog in the machinery. If the system is broken, fix the parts that make up the system, not the product that goes through it.