Court Describes Federal Sentencing Disparities as “A Picture of Injustice” Robert Paisola Reports

In 1984 the United States Congress enacted the Sentencing Reform Act (“SRA”), and as part of the Act, Congress created the United States Sentencing Commission (“Commission”) to “establish sentencing policies and practices for the Federal criminal justice system.” 1/ The Commission was charged with the responsibility of creating U.S. Sentencing Guidelines (“Guidelines”) that would assist Federal judges in the sentencing process to fulfill Congress’ five purposes for imposing criminal sentences. 2/

Title 18, United States Code, Section 3553(a)(2) lists the five congressionally-mandated purposes for sentencing:

•To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
•To afford adequate deterrence to criminal conduct;
•To protect the public from further crimes of the defendant; and
•To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
While the Guidelines and the § 3553(a) factors were intended to eliminate the gross disparities in federal sentencing practices before the SRA, they have failed miserably in many significant respects, particularly in child pornography cases. Since the enactment of the SRA, Congress has repeatedly created new offenses, increased penalties, and issued directives to the Commission concerning child pornography offenses. 3/ The following is a list of many of the laws enacted by Congress over the last three decades regarding child pornography-related offenses:

•Protection of Children Against Exploitation Act of 1978;
•Child Protection Act of 1984;
•Child Sexual Abuse and Pornography Act of 1986;
•Child Abuse Victims’ Rights Act of 1986;
•Child Protection Restoration and Penalties Enhancement Act of 1990;
•Sex Crimes Against Children Prevention Act of 1995;
•Protection of Children from Sexual Predators Act of 1998;
•Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
•PROTECT Our Children Act of 2008;
•Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
•Keep the Internet Devoid of Sexual Predators Act of 2008; and
•Effective Child Pornography Prosecution Act of 2008.

This endless stream of legislation has contributed to an increasing, and more open, judicial chaos in the specific area of child pornography sentencing. This chaos was highlighted in the case of Jeremy Goldberg who pled guilty in March 2006 in the United States District Court for the Northern District of Illinois to a single count of possession of child pornography. U.S. District Court Judge Joan B. Gottschal sentenced Goldberg to one day in prison, credit for time served, and ten years of supervised release. 4/ The Government appealed the sentence as unreasonably lenient, and in June 2007 the Seventh Circuit Court of Appeals agreed, remanding Goldberg’s case back to Judge Gottschal for resentencing. 5/ On remand, Judge Gottschal sentenced Goldberg to 48 months of imprisonment, recommended that he be placed in a Sex Offender Treatment Program operated by the Federal Bureau of Prisons, and imposed ten years of post-release supervision. 6/

But Judge Gottschal did not shy away from the Seventh Circuit’s remand order. She pointed out in her sentencing memorandum on remand that she had explained the original sentence as best she could, and added that a fair reading of her explanation was not “consistent with the Seventh Circuit’s assessment of it.” She noted that the appeals court not only quarreled with the way she had justified Goldberg’s original sentence but quarreled with the sentence itself. 7/ The judge cited the following portion of the Seventh Circuit’s ruling to support her position:

“A prison sentence of one day for a crime that Congress and the American public consider grave, in circumstances that enhance the gravity (we refer to the character of some of the images), committed by a convicted drug offender does not give due weight to the ‘nature and circumstances of the offense,’ ‘promote respect for the law,’ or ‘provide just punishment for the offense.’ It does not ‘afford adequate deterrence to criminal conduct.’ And it creates an unwarranted sentence disparity, since similarly situated defendants are punished with substantial prison sentences.” 8/

Perhaps it was the Seventh Circuit’s reference to “sentence disparity” that prompted Judge Gottschal to call out the appeals court. Over an 18-month period Jeremy Goldberg downloaded from the Internet hundreds of images of children—some as young as 2 or 3—engaged in sex acts with adults. He offered these images to other subscribers of a web site in an effort to procure similar images from these subscribers. And he would masturbate while viewing the child pornography. 9/ Judge Gottschal in some detail examined sentences imposes in what she called “comparable cases in its sister courts.” 10/ As noted by Judge Cottschal, the following cases illustrate the disparity in the way similar child pornography cases are charged and sentence:

•Kirkham v. United States, 2008 U.S. Dist. LEXIS 31046 (D. Utah 2008): child pornography case involving 5,129 images given a 120-month sentence where Guidelines recommended sentence range of 135-168 months.
•United States v. Sudyka, 2008 U.S. Dist. LEXIS 42569 (D. Neb. 2008): child pornography case involving 3000 images given a 24-month sentence where Guidelines recommended sentence range of 63-78 months.
•United States v. Baird, 2008 U.S. Dist. LEXIS 2338 (D. Neb. 2008): child pornography case involving 800 images given a 24-month sentence where Guidelines recommended sentence range of 46-57 months.
•United States v. McElheney, 524 F.Supp.2d 983 (E.D.Tenn. 2007): child pornography case involving 200 images given 135-month sentence where Guidelines recommended sentence range of 135-168 months.
•United States v. Thomas, 2008 U.S. Dist. LEXIS 15937 (N.D. Ill. 2008): child pornography case involving 200 images given 84-month sentence where Guidelines recommended sentence range of 168-210 months.
Judge Gottschall then pointed to the sentence disparities found among the federal circuits:

•United States v. Perez, 484 F.3d 735 (5th Cir. 2007): sentence of 57-months upheld in child pornography case involving thousands of images stored on 4000 compact discs.
•United States v. Kirchhof, 505 F.3d 409 (6th Cir. 2007): sentence of 180 months upheld in child pornography case involving 992 images where Guidelines recommended sentence range of 210-262 months.
•United States v. Grinbergs, 470 F.3d 758 (8th Cir. 2006): sentence of 12 months and a day reversed in child pornography case involving 348 images where Guidelines recommended sentence range of 46-47 months.
•United States v. Kerr, 472 F.3d 517 (8th Cir. 2006): sentence of 151 months upheld in child pornography case involving 45-50 images (some sadomasochistic).
•United States v. Meiners, 485 F.3d 1211 (9th Cir. 2007): sentence of 180 months (statutory mandatory minimum) upheld in child pornography case involving 10,000-12,000 images (some sadomasochistic).
•United States v. McBride, 511 F.3d 1293 (11th Cir. 2007): sentence of 84 months upheld in child pornography case involving 981 images where Guidelines recommended sentence range of 151-188 months.
Judge Gottschal did not stop with the sentencing disparities found in other federal circuits in child pornography cases. She pointed to blatant disparities in such cases found in the Seventh Circuit itself:

•United States v. Lowe, 516 F.3d 580 (7th Cir. 2008): sentence of 144 months upheld in child pornography case involving 6500 images.
•United States v. Shrake, 515 F.3d 743 (7th Cir. 2008): sentence of 330 months in child pornography case involving 600 images where Guidelines recommended a sentence range of 292-365 months.
•United States v. Baker, 445 F.3d 987 (7th Cir. 2006): sentence of 87 months upheld in child pornography case involving 300 images where Guidelines recommended sentence range of 108-135 months.
•United States v. Barevich, 445 F.3d 956 (7th Cir. 2006): sentence of 76 months upheld in child pornography case involving 8178 images where Guidelines recommended sentence range of 87 to 108 months.
•United States v. Wachowiak, 496 F.3d 744 (7th Cir. 2007): sentence of 70 months upheld in child pornography case involving more than 600 images (some sadomasochistic) where Guidelines recommended sentence range of 121-151 months.
These cases reflect there is no real rhyme or reason to the actual sentences imposed in child pornography cases or in the Guidelines that govern such sentences. This point was made clear by Judge Kathleen M. O’Malley in the case of Evan M. Stern who pled guilty to possession of child pornography in the United States District Court for the Northern District of Ohio. The Guidelines recommended a sentence range of 46 to 57 months. Judge O’Malley, who rarely ever deviates from the recommended Guidelines sentence range and who has a history of imposing harsh sentences in child pornography cases, imposed a sentence of 12 months and 1 day of incarceration on Stern. 11/ Citing the Jeremy Goldberg decision, Judge O’Malley made these observations about sentencing disparity in child pornography cases:

“This Court has carefully considered an extremely wide variety of opinions from across the country as well as the National Guidelines Statistics … The Court is deeply troubled by its findings: ‘anyone seriously concerned about federal sentencing disparities [must begin by] taking a very close look at federal child porn cases.’ Professor Douglas A. Berman, Is there an Ivy-Leaguer Exception to Federal Child Porn Charges? (October 22, 2008) … Based on the Court’s review of the case law, it is clear that ‘one would be hard pressed to find a consistent set of principles to explain exactly why some federal porn defendants face decades in federal prison, some face many years in federal prison, while others only end up facing months.’ Id. This Court is ‘struck by the inconsistency in the way apparently similar cases are charged and sentenced.’

“In short, the national sentencing landscape presents a picture of injustice. In the absence of coherent and defensible Guidelines, district courts are left without a meaningful baseline from which they can apply sentencing principles. The resulting vacuum has created a sentencing procedure that sometimes can appear to reflect the policy views of a given court rather than the application of a coherent set of principles to an individual situation. Individual criminal sentences are not the proper forum for an expansive dialogue about the principles of criminal justice. Such conversation, though vital, should not take place here—lives are altered each and every time a district court issues a sentence: this is not a theoretical exercise. Yet, this Court is mindful of the appropriate scope of its authority—it must take the law as it finds it.” 12/

Congress has created the law the way Judge O’Malley finds it—a “picture of injustice.” While we agree with Judge Gottschal that “no two cases are identical and reported cases may not describe all [the] salient facts,” the cases cited by Judge Gottschal and those which influenced Judge O’Malley’s “picture of injustice” conclusion clearly demonstrate there are serious problems in the federal sentencing process, especially in child pornography cases. It is fundamentally unjust to punish criminal defendants differently for committing essentially the same offense. Unexplainable and significant sentencing disparities are repugnant to our notions of justice.

We strongly suggest that Congress quit pandering to the “law and order” agenda and enact legislation that will bring about a more uniform federal sentence process which was in the original intent of the SRA.

SOURCES:

1/ “The History of Child Pornography Guidelines,” The United States Sentencing Commission, (October 2009). Full report at: http://www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.pdf
2/ Id., at p. 1
3/ Id.
4/ United States v. Goldberg, 2008 U.S. Dist. LEXIS 35723 (N.D. Ill. April 30, 2008)
5/ United States v. Goldberg, 491 F.3d 668 (7th Cir. 2007)
6/ United States v. Goldberg, supra, Lexis at 1
7/ Id., Lexis at 2
8/ United States v. Goldberg, supra, 491 F.3d at 671-72
9/ Id., at 670
10/ United States v. Goldberg, supra, Lexis at 5
11/ United States v. Stern, 590 F.Supp.2d 940 (N.D. Ohio 2008)
12/ Id., 590 F.Supp. at 961

Judge frees out-of-state sex offenders, posted by Robert Paisola

FL- Judge frees out-of-state sex offenders

Posted: 20 Apr 2008 02:14 PM CDT

Interesting here is, this judge ruled that the "Commerce Clause" has nothing to do with sex offender registration. This I said when the Madera case was first brought up. Also see the discussions at SexCrimes and Sentencing Law and Policy The news report is not clear on what the judges grounds were so click on the link to the decision below.

He rules that making them register if they move to another state is unconstitutional.

4-20-2008 Florida:

An Orlando federal judge has ordered the release of two jailed, out-of-state sex offenders who moved to Florida, ruling that part of the Adam Walsh Act requiring their registration is unconstitutional.

U.S. District Judge Gregory Presnell on Friday ruled (U.S. -v- Powers) that the 2006 federal law requiring state sex offenders to register with law-enforcement officials when they move across state lines was largely a local issue.

The ruling, made in two unrelated sex-offender cases pending in Orlando, led to the dismissal of charges against Robert D. Powers, 43, and Tommy William Buckius, 60, both of Orlando. Powers was released Friday from the Seminole County Jail, but Buckius remained in the Orange County Jail.

Powers was convicted in 1995 in South Carolina of sexual assault, freed in 1997 and later arrested for failing to register as a state sex offender. In 2002, he registered in North Carolina but absconded in 2005 and did not register with Florida authorities when he repeatedly visited Orlando in the late 1990s and lived with his mother in 2007.

This comment implies that RSOs are supposed to register any
time they cross state lines and that is not in any law nor has the issue been raised before.


Buckius, who pleaded guilty to the attempted rape of a 13-year-old Ohio girl in 1986, was freed from prison there in 2000 and later registered as a sex offender. He previously was convicted of assault with intent to commit rape in Texas in 1973, court records show. But in November 2006, Buckius moved from Liverpool, Ohio, and did not notify local authorities of his new address. He was documented living in Orlando as early as March 2007 and arrested in February 2008.

Assistant Federal Public Defenders Michelle Smith and Stephen Langs argued that Congress lacked the authority to force state sex offenders solely convicted of local offenses to register. Powers had an IQ of 68, a second-grade reading level and did not understand state sex-offender forms he had signed, Smith argued.

They also contended both men were convicted of crimes before the new law was passed and should not be subjected to them. But federal prosecutors argued that an Attorney General's rule applied to sex offenders before the new took effect in 2007.

Known as the Sex Offender Registration and Notification Act, it was passed in honor of Adam Walsh, a South Florida boy killed in 1981. It was designed to help identify up to 200,000 unaccounted-for sex offenders nationwide.

Failing to register carries a prison term of up to 10 years. The law requires states to notify all sex offenders in or out of prison about the federal provision, but Florida has yet to comply with the new federal rules deadline of July 2009.

"The Adam Walsh Act was enacted with a commendable goal -- to protect the public from sex offenders," Presnell wrote. "However, a worthy cause is not enough to transform a state concern [sex-offender registration] into a federal crime."

Ironically, three other Central Florida federal judges have upheld the law's constitutionality in other cases, though one last year said he wished he could have dropped the case the next day if the suspect had registered. He sentenced the suspect to probation.

Presnell's problem with the federal law centered on the "mere unrelated travel in interstate commerce" to link it with local criminal conduct. Such reasoning would subject virtually all criminal activity to federal scrutiny, he wrote.

"Surely, our founding fathers did not contemplate such a broad view of federalism," Presnell wrote. ..more.. by Jim Leusner can be reached at jleusner@orlandosentinel.com or 407-420-5411.
Sex Offender Research, Recidivism and the Truth


Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?

Abstract:

In recent decades, sex offenders have been the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information on sex offenders be made public. Using detailed information on the timing and scope of changes in state law, we study how registration and notification affect the frequency of sex offenses and the incidence of offenses across victims, and check for any change in police response to reported crimes. We find evidence that registration reduces the frequency of sex offenses by providing law enforcement with information on local sex offenders. As we predict from a simple model of criminal behavior, this decrease in crime is concentrated among local victims (e.g., friends, acquaintances, neighbors), while there is little evidence of a decrease in crimes against strangers. We also find evidence that community notification deters crime, but in a way unanticipated by legislators. Our results correspond with a model in which community notification deters first-time sex offenses, but increases recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior. This finding is consistent with work by criminologists suggesting that notification may increase recidivism by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive. We regard this latter finding as potentially important, given that the purpose of community notification is to reduce recidivism. ..more.. by J.J. PRESCOTT, University of Michigan Law School -and- JONAH E. ROCKOFF, Columbia University - Columbia Business School; National Bureau of Economic Research (NBER)

Sex Offender Research, Recidivism and the Truth

NH- Innocent shouldn't have to submit DNA



To cries of "war on terrorism" and "protect women and children from sex offenders," society has begun marching into a Brave New World where privacy and civil liberties go to the end of the line in hopes of achieving safety. Another corner was turned in that march last week when the U.S. government announced that it is about to begin collecting DNA samples, not just from people convicted of a federal crime, but of illegal immigrants, whose offenses are typically civil, not criminal, and anyone, citizen or not, arrested on suspicion of having committed a federal crime. The rule applies to all federal agents with law enforcement authority, including the IRS and the National Park Service.

Out with old notions like "right to privacy" and "innocent until proven guilty" and into a federal database that some people hope will eventually contain the genetic code of every person in the nation. This is a clock that must be turned back, or liberty will be lost. As Benjamin Franklin said two centuries ago in a quotation that appears in many variations, "They who give up an essential liberty for temporary security will deserve neither and lose both."

Most states already collect a DNA sample from people convicted of serious crimes, and 13 are busily building their databases by collecting samples from arrestees. In a few states, Florida, for example, police take cheek swabs of suspicious persons and people stopped for traffic violations, even if they aren't subsequently arrested, an act that seems like a clear violation of the Fourth Amendment prohibition against unreasonable search and seizure.

Until now, New Hampshire has not routinely collected the DNA of people convicted of a crime, but that will change if the Senate approves a bill that's already passed the House. The bill requires the collection of DNA sample from felons.

While it may make sense to collect and store the DNA of some classes of criminals, repeat juvenile sex offenders, for example, or those who have committed truly serious crimes, it should not be done routinely for all felons including teenagers convicted of drug felonies who would be put in the database for life. The bill, as written, would also apply to juvenile sex offenders, though they are tried in a process that doesn't accord them all the constitutional protections afforded an adult. Once again, the bill goes too far.

There are innumerable problems with the government's expansion of its DNA database to include people who are arrested but never convicted. The government should not have the right to possess the fundamental genetic identifiers of innocent people. The DNA of people who are found innocent will supposedly be destroyed. But even if government could be trusted to destroy it, the information will appear in too many places and be too deeply embedded to be removed permanently or affordably.

The desire to expand the database also provides a big incentive for law enforcement to arrest people they don't plan to try, in order to have their DNA "just in case." Nor should any database be considered absolutely secure - as the government's ample history of lost laptop computers bearing classified information and the hijacking of the credit card numbers of people who shop at supermarkets and other stores proves. The DNA information, after all, would be accessible by myriad law enforcement officers, and the genetic data it contains will be valuable.

The DNA information is said to be in a form that wouldn't allow an insurance company to screen customers for predilection to serious disease, but that claim is in dispute and the technology to extract information is improving rapidly.

The public has two weeks to comment on the DNA policy, which is scheduled to appear soon as a proposed rule in the Federal Register. It should resoundingly tell Congress that it doesn't want government to collect and keep on file the genetic codes of innocent people. ..more.. by Monitor staff
Sex Offender Research, Recidivism and the Truth

KY- Website Entices Chatters To Solicit Sex From Minors, Then Posts Their Personal Info Online

The FBI says a civilian website dedicated to exposing potential pedophiles goes too far. But the website's creator says they're just trying to protect your children. Now the mother of a Louisville man targeted by the group talks about how the experience changed her life. WAVE 3 Investigator Eric Flack has the story.

There's no question that pedophiles online are a problem. It's a problem Xavier Vonerck, director of a website called Perverted-Justice wants to eradicate. "These people are everywhere."

The question is how far is too far to catch a predator? That's what one woman wants to know after her son's name and other personal information was posted on the site. The woman, who asked that she not be identified, says "My son's not a pedophile."

The website serves as a home base for a network of civilians who lurk in chatrooms and pose as underage kids, baiting adults into asking them for sex, often bringing up the idea before their targets do. They keep a record of the conversation, often asking for the target's phone number to set up a future meeting. That information is then verified and posted on the site, along with the target's picture and a copy of the chat session.

Her son, who used the online chat handle "KY Fire Guy," had his picture and phone number posted on the website, next to an archived chat session with a girl he thought was 13. His mother says she thinks "they trapped him into saying things he did say."

"Have you ever had sex before," he asks. The response: "yes."

"Want to when I come see you?" the firefighter says. "Sure, if you do."

Then later, it's the website staffer who says: "You're going to sex me up?"

"KY Fire Guy" writes back: "Yeah, if you can handle it baby," asking his new friend for "wild sex."

Vonerck spoke with us by phone, defending the website's tactics. "I should be able to send in a person to any one of these rooms and they should be able to say whatever they want as a 13-year-old and get no reaction."

Vonerck says "a reasonable man would not respond positively to any form of sex talk with a 13-year-old."

But FBI spokesman David Beyer told us the tactics used by the staffers at www.perverted-justice.com are over the line. "Anytime the public gets involved in something of this nature, they run the risk of civil liability, perhaps criminal liability. They have the potential of identifying the wrong person."

After the website posted the phone number for "KY Fire Guy," his mother says "in a period of about two to three days there were over 600 phone calls."

"KY Fire Guy" lived with his mom when he was targeted, so it was her phone number that ended up on the website, which led to people being able to find her home address. "We were told they found our address and we needed to watch our backs when we left the house."

"KY Fire Guy" has left the state. "His picture was on the Internet. It said, 'this is a pedohpile.' Wouldn't that ruin your life?"

At one point, "Ky Fire Guy" posted a response to Perverted-Justice, writing that he hated himself for what he had tried to do, and thanking the website for forcing him to seek help.

But on the night the story aired on WAVE 3, he said the website made everything up, and that he has had to change his appearance and phone number because of all the harassment. ..more.. by Eric Flack

We normally think of a trial by jury as one of the individual rights afforded to persons accused of a crime. It is also, as we have seen, a right that is institutional as well — one that belongs to the people as a whole as well as to the individual. But jury trials, as has been all too evident in dictatorships, can be meaningless unless that trial is governed by rules that ensure fairness to the individual. A trial in which the judge allows illegally seized evidence to be used, or in which the defendant has no access to an attorney, is forced to testify against himself, or is denied the ability to bring witnesses favorable to his cause, is not a trial that meets the standard of due process of law. The men who drafted the Bill of Rights knew this, not only from their experience during the Colonial era, but also from the history of Great Britain, which ever since the signing of the Magna Carta in 1215 had been committed to expanding the rule of law. ..much much much more.

So, does Perverted Justice live up to it's name, I'll leave the answer to my readers?
Sex Offender Research, Recidivism and the Truth