SORNA and State Law

Here is an interesting decision from the Supreme Court on the interplay between SORNA and Montana state law. The Ninth Circuit ruled that the federal juvenile registration provision were ex post facto as applied to respondent. Respondent remains on Montana's sex offender registry; the Supreme Court certified a question that could resolve whether he must continue to register under state law independent of the fact that his federal duty to register expired in 2008, and might also violate the Ex Post Facto Clause (does, according to the Ninth).

Backing Away from the Briny Cesspool of Democratic Tyranny

From Ohio, a small legal victory. Supreme Court rules change to sex offender registration laws "required" by AWA -- the big bad Bush /Gonzo conspiracy to create a federal sex offender bureaucracy -- won't stand. Here is a link to Prof Berman's blog on it. The opinion of the Ohio Supreme Court is here.

Here is how it seems to work. Courts convict under legislated criminal law which provides for consequences of the conviction. The legislature then demands that it is within its power to take that conviction and provide for additional and other consequences without limitation. It then sits back and waits for a legal challenge by the affected citizens. The courts are then and only then compelled to decide whether the legislature has indeed exceeded its powers. Meanwhile, lives are ruined, families destroyed, costs mount, vigilantes and bigots, haters, hostile elements and ignoramuses lick their chops, and public safety suffers.

Can this be the America we have chosen to defend?

How About Putting Only Dangerous Predators on the Registry, with Review?

Here is a good intro to a UK ruling that registration for life without periodic review violates Convention on Human Rights. About time some sensible thinking went into this. Most registrants are not the dangerous persons everybody thinks they are. Here is the link.

Registry for Drug Dealers? A Mandatory Life Sentence for Lewdness?

Now there's talk about a drug dealer registry in MA. I wonder why our law enforcement people can't track these dangerous criminals without putting them on a registry? But because nobody is really serious about stopping the drug trade it's all just more hot air.

Now mandatory minimum sentences have gone too far, as this post shows.

And here is a notable new paper titled

Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws by Melissa Hamilton , University of Toledo College of Law,Temple Law Review, Forthcoming.

Abstract:
This article argues that the new preventive law focus in sex offender laws is largely ineffective and too costly to personal liberty. The application of sex offender laws involving civil commitment, sex offender registration, and residency restrictions is often based on an individualized analysis of future dangerousness, i.e., the risk the defendant will sexually recidivate. In assessing future dangerousness, experts and courts place heavy emphasis on the use of actuarial tools, basically checklists that mental health experts use to derive statistical estimates of risk. This article provides substantiation that actuarial tools, while enjoying the imprimatur of science, suffer from significant empirical faults. Yet courts are largely abandoning their gatekeeping roles in accepting the experts’ testimony using actuarial tool predictions of risk without critical review as required by the Daubert and Frye evidentiary standards. The paper theorizes that this is likely a pragmatic strategy considering the current political and public thirst for retribution against sexual predators. But, use of this empirically-challenged science exacerbates the practice of applying sex offender restrictions to inappropriately labeled individuals. Finally, this article takes advantage of the interdisciplinary trend of engaging social science with the law on expert evidence. More specifically, it offers an empirical assessment of future dangerousness opinions within the Daubert/Frye scientific evidence frameworks. The significance of the conclusion reached in this article is clear: if the law continues to rely upon suspect science that results in the wrong individuals being subject to liberty-infringing sex offender laws, then the drain on criminal justice resources will leave the truly dangerous offenders without sufficient supervision at the risk of public safety.

Nice Vacation

But it's over. Here's an interesting local posting on a pervasive national problem, money driving politics, and/or the reverse, which could be the same thing. And here we thought it could never happen in an enlightened republic of citizen legislators. Manipulating the public only becomes easier the less power the public retains. We are getting there, have been there before, and so on it goes. Interesting how a two year election cycle is not enough to ensure that we don't fall further into the pit. Term limits sure would be a welcome change.

It is called "A Growing Evil" by Katherine Heerbrandt, in the Frederick, Md, News Post. Katherine, you are so right.

And let's not forget how certain influential community leaders like to rail about "socialism" while doling it out to the corporations. What did they call it in Germany? National socialism, while the arms industry appropriated the economy. We, America, are there precisely now. Free market, ha!

A fitting, and ironic (ironic because the right in theory is the free markets crowd) reminder is the Reagan years "arms for oil" deal. People, is there no choice but to follow this to its logical conclusion? Which is, ... a hundred year of war for oil.

My solution: turn Iran into a parking lot and the sooner the better, keep the museums and mosques. It's sort of like the foreclosure crisis. The sooner we get the bad and underwater loans off the market the better we will be. People, walk (but buy cars) and rent. The mortgage banks are taking you for a ride.

Link.

Principles of a lower court's discretion according to SCOTUS

The decision in Beard, comparing the per curiam (unsigned) opinion in Michigan v. Fischer, Stevens and Sotomayor dissenting (opinion here); the Court swoops in to reverse the trial judge and appellate affirmation in Fischer ruling in favor of suppression motion while in Beard narrowly holds on the basis that discretion in the lower courts ought to be preserved.

Makes sense as long as one does not take into account principle too strongly.

Postconviction Practices

Thanks to Doug, as alway, here is the ABA symposium on postconviction practices:

Prof. Berman also posts here on Second Amendment cases, Heller and McDonald, suggesting that the cause of criminal justice reform is related, discussing the politics as well.

Remarkably there is in the air a question whether SCOTUS might overrule a one hundred year old decision in the Slaughterhouse cases regarding the Privileges or Immunities clause of the Second Amendment! Doug suggests liberals should tend towards favoring the overruling. You have to go read the McDonald brief.

That would place liberals in bed with the NRA. Gives new meaning to the phrase intercourse between nations, or in this case national political parties. You gotta love how those clever libertarians love to stir the pot. Karl Rove, where are you now?

Yes, the states should and can be incubators for reform (in all vectors). But which one has the balls to move sensibly toward what we might call, fiscal responsibility, anti- tough (stupid tough) on crime? Restore judicial discretion, remove mandatory minimums, for starters.


Symposium link

Topics include

collateral consequences
clemency
claims of innocence
procedural obstacles

and a primer by Prof Taslitz at Howard University in DC.

New blog

Found a new blog, Stand Up, by Sam Caldwell.

It looks promising.

Shitake Awards, one more on topic, for a good belly laugh! The line: "giving anti-former offender politicos and celebrities what they really deserve"

Convicting Innocents

Here is a link to Sean Penn's documentary Witch Hunt (2008). The description from Emanuel Levy:

"Witch Hunt" chronicles the unraveling of a small town's justice system. The main characters in this new non-fiction film are working class parents, moms and dads, who were all wrongly convicted of child molestation in the early 1980s in the town of Bakersfield, California. Each of these falsely convicted people was recklessly pursued by the same Kern County District Attorney who remains in office today. "Witch Hunt" is a true crime drama, where the real criminals were the authorities, themselves.

PLEASE watch the film and tell me the system is not corrupt.

There is dire need for judicial reform. Although this episode happened over 20 years ago the abusive practices continue in ever more sophisticated fashion.

Check Sosen's site on the sidebar of this blog and the many comments on topic during the previous 9 months at Emanuel Levy.

There's a book I read a few years ago I thought was called cynically titled Presumed Innocent, not to be confused with Turow's of the same title. The one I read is about the Bakersfield travesty. I am having a hard time tracking it down. If anybody sees this and can help please do so.

Reforming Criminal Justice

NYRB has an interesting review of three books, by David Cole, called Can Our Shameful Prisons Be Reformed. November issue. Not much new here, but the problem is gaining in notoriety, perhaps.

Da System, Baby, Is Working, But Not so Great

Who has not heard of the case of Garrido, and Sowell?

The girls Sowell had over are not so well.

One fell out the balcony and had too much. She is not so well.

Sowell is not so well.

That's a good thing.

Sorry, so well...

See you in hell.



The proof is so often in the pudding.

Here, the proof seems to be putting in the house.

Sorry Sowell.

See you in hell.



Remember Garrido

You and matron kept her 20 years

Nobody knew any different

Not GPS, not judge, not parole officer;



OMG, the system, baby, is not so great.

Who should we hate?

All the criminal loving lawyers

is who.

Without them Garrido would be hung by the bun

Gee.

Already.

Finis

Can Sex Offenders be Banned From Church?

Most recently, Profs Berman and Dorf weigh in. If churches are anything like schools, I am surprised that the law does not provide for limited exceptions for attending church services. Perhaps the state could have thought of that, or will they add a provision to avoid going to court?

Or, with the constitutional analysis pending, will sex offenders be further separated into legal categories, such as dangerous, dangerous to children, and not dangerous, not violent, and no risk? Many, from what I understand, present absolutely no risk of reoffending whatsoever. And that's the point of these laws, correct? Let's get them off the registries! It will make it easier to track the ones requiring the attention.

What might that do to the notion of tracking, registries, and bans from residence in proximity to schools, school bus stops and such?

One Parthenogenetically Reborn Business

American prisons make the inmates they are made for: the thesis of Prof. Sharon Dolovich and many works to whom she refers in her new SSRN piece (download here) to appear in Harvard Law and Policy Review symposium.

Mass incarceration has become a virgin birth industry. It keeps laying eggs and the eggs are us. From the view of an egg who both justice and society failed, and having collected a five year degree from the Texas Dept of Criminal Justice along with an M.A. in Government from Notre Dame, and J.D. from The American University, I could not agree more. Prof. Dolovich puts it all together.

Her title,

Incarceration American Style

Here is the RUNAWAY FREIGHT TRAIN which reproduces itself at great cost to the taxpayer:

"society never has to confront the fact that the perceived need to control an out-of-control population may stem from the conditions, both inside and outside the prison, to which the incarcerated have been subjected.

The absence of any meaningful re-integrative project is thus revealed as both cause and effect of the system’s reproductive success; without such a project, prisoners’ re-entry efforts will in many cases be doomed to fail, and one can expect no real social investment to reintegrate those regarded as (non)people unfit for society.

Here is an effective recipe for simultaneous social abandonment and continued carceral control, as those who have been incarcerated and subsequently deprived of any meaningful social or psychological support are sure to become ever more marginalized from the body politic, and the more marginalized they become, the more likely they are to wind up back in prison."

That troubles me. It could be you too, innocently convicted and trying to re-make your life. Do you know anybody like that?

There is hope here:

Emphasize "the humanity and individuality of the people we put behind bars. It is embodied in Taifa and Beane’s call for an evidencebased approach to tackling the risk factors for criminal conduct; in Judge Gertner’s endorsement of evidence-based sentencing practices and guided discretion; and even in Clear and Austin’s macro-level demand that policymakers reduce the prison population by eliminating mandatory sentencing.

The self-perpetuating character of the American carceral system will not be disrupted until society as a whole begins to see that it is fellow human beings we are incarcerating. Until this fact is recognized, the wise strategies for change proposed by these authors will not be widely or seriously considered. But once it is recognized, those same strategies will be irresistible.

Actual Innocence and DNA Testing Waivers

In this post exploring DNA testing waivers, the real issue of interest to me is why innocent accused plead guilty to crimes they did not commit. Does this interest anybody else? Does it not trouble you?

A snippet: Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....

from the Post article Doc cites.

Prison Reform and Justice Go Hand in Glove

New York could be the model for prison/crim justice reform efforts nationwide. See the NYT article here, contributed by Robert Gangi, executive director of the Correctional Association of New York, a nonprofit organization that monitors prison conditions.

Stimulating the Stimulus

Here is a crazy idea: devalue the dollar which will lead to immediate demand abroad for us goods and services creating exports and an influx of cash to exporters and the overall economy. The free market at work works well! Cons: consequences of a falling dollar?

I see the Wapo leads with an article on the economy today, as Speaker Nancy Pelosi reviews the options for rapidly lifting lagging employment indicators.

On a Slow News Day ... Dominated by War, Health Care and Letterman's Sex Life

Purchasing a lawsuit by the good citizens of North Carolina is shown here (the comments on Prof Berman's blog are interesting). The law banning sex offender from church because it has a day care is being challenged, AP reports here (where experts Prof Jonathan Turley, G-town U., Sara Tofte, Human Rights Watch, and Sara Totonchi, Southern Center for Human Rights weigh in). Katherine Parker of ACLU is assisting in this case.

And thank you anonymous for your kind comment which you posted here. Actual innocence is alive and well in criminal justice reform.

Whats the Point?

Jumping into the thicket I am going to venture that award winning producer Roman Polanski has done his time. It is 30 years of self imposed exile. To jail him now is merely a gesture to the idea that justice must be strict admitting of no compassion, that to set an example Roman must be punished more than that which he has imposed on himself. I disagree with this justice. Justice should be able to bend over backwards to fit unique circumstances.

What happened was rape and illegal. The victim no longer wishes to see Roman punished. It is over and has been for a long time. The state's interest in putting Roman in jail is far from clear at this point, has no point. The exile has been long enough.

On this, Robinson at Wapo has spoken here, calling the crime "brutalization." In his opinion, I'm not sure what he really thinks. Should Roman go to jail? I guess he thinks so. What purpose would it serve?

Supreme Court takes up Sex Offender Issues

The Court, already committed to one ruling on laws involving sex offenders, on Wednesday added another: Carr v. U.S., 08-1301. That case, from Indiana, asks the Court to interpret the Sex Offender Registration and Notification Act of 2006, requiring those convicted of sex crimes to register with state and federal databases. The question before the Court is whether it was unconstitutional for the U.S. Attorney General to apply the law retroactively to an individual whose underlying crime occurred before the law was enacted by Congress — in other words, an “Ex Post Facto” clause issue. (The other sex offender case the Court has on its decision docket, but not yet scheduled for argument, is United States v. Comstock, 08-1224, testing the constitutionality of continued imprisonment of a sex offender considered to be dangerous, after that individual has completed serving a prison sentence for the crimes.)

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

• Opinion below (7^th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Off the Wall

Show me what a man reads and I will tell you what kind of man he is.
Who said this?

Show me the books he loves and I shall know
The man far better than through mortal friends.
— S. Weir Mitchell

According to Book Browse, S. Weir Mitchell.

The phrase came to mind as I was reading John Keane's, The Life and Death of Democracy, (2009). Bio here. Here is a precious line from this work:

The struggle against blind arrogance and stupidity caused by concentrated power is never ultimately winnable, yet it is among the struggles that human beings abandon at our own peril. Democracy is a powerful remedy for insolence. Its purpose is to stop people getting screwed. Democracy is a good weapon for publicly exposing corruption and arrogance, false beliefs and blind spots, bad decisions and hurtful acts. It helpfully injects critical thinking and matter-of-factness into the design and operation of complex organisations and networked systems; above all it is an indispensable means of tackling problems (like climate change) for which there are currently no agreed definitions, let alone viable solutions. Democracy champions not the Rule of the People -- that definition of democracy belongs in more ways than one to the Age of Monarchy and Era of Dictatorship and Total Power -- but the rule that nobody should rule.

That's a mouthful.