Sex Crimes

Porn for Convicts

The rule seems to be no porn for prisoners, but yes porn for freed sex offenders. First, the Florida Supreme Court held that, applying the rule of lenity, a sex offender could not be convicted of violating probation conditions related to porn (HT: How Appealing):

We review a statute that requires judges to impose conditions of probation on sexual offenders. At issue is whether the statute prohibits sexual offenders serving probation or community control from possessing any pornographic material at all or only such material relevant to the offender’s deviant behavior. In the decision below, Kasischke v. State, 946 So. 2d 1155, 1159 (Fla. 3d DCA 2006), the Third District Court of Appeal held that offenders cannot possess any such material. Its decision expressly and directly conflicts with the Second District Court of Appeal’s decision in Taylor v. State, 821 So. 2d 404, 405-06 (Fla. 2d DCA 2002), which held that a condition prohibiting the defendant from “viewing, owning, or possessing obscene, pornographic, or sexually explicit material,” must relate to the defendant’s “particular deviant behavior pattern.” We have jurisdiction to resolve the conflict. See art. V, § 3(b)(3), Fla. Const. Because, as the Third District acknowledged, the statute “is undeniably susceptible to multiple and irreconcilable interpretations,” 946 So. 2d at 1157-58, we apply the rule of lenity. We therefore quash the decision below and approve the Second District’s decision in Taylor.

However, a Supermax inmate was not so lucky (HT: How Appealing):

Plaintiff has failed to established that the Ensign Amendment, or its implementing regulation, 28 C.F.R. § 540.72, violate his First Amendment rights either facially or applied to him, and therefore the declaratory relief sought in his First and Third Claims for Relief is DENIED. The Clerk will forthwith enter judgment in favor of Defendants and against Plaintiff on the First and Third Claims for Relief, dismissing those claims with prejudice. Plaintiff has failed to established that the defendants’ determination that the publications rejected as alleged in his Fourth, Fifth, Sixth and Eighth Claims for Relief were improperly excluded under the Ensign Amendment, or its implementing regulation, and therefore the declaratory relief sought in his Fourth, Fifth, Sixth and Eighth Claims for Relief is DENIED. The Clerk will forthwith enter judgment in favor of Defendants and against Plaintiff on the Fourth, Fifth, Sixth and Eighth Claims for Relief, dismissing those claims with prejudice.

Seventh Circuit Issues Child Pornography Decision

The decision hinged on a Commerce Clause challenge. The Court, citing Raich and past precedent related to child pornography, held that possession of child pornography wholly for intrastate use is still subject to federal jurisdiction. From the opinion in US v. Blum:

As was the case in Raich, the high demand for child pornography in the interstate market presented the real danger that purely-intrastate child pornography would find its way to that market. Similarly, the same difficulty in distinguishing between locally-produced marijuana and interstate marijuana for enforcement purposes is problematic with respect to child pornography as well. Given those substantial concerns, and additionally considering the Congressional determination that the manufacture and possession of any child pornography itself feeds the market and increases demand for it, we hold that Congress rationally could conclude that Blum’s actions, taken in aggregation with others engaged in similar activities, substantially affects interstate commerce. We therefore join our sister circuits in rejecting the Commerce Clause challenge to the application of the statute to intrastate child pornography.

HT: How Appealing

New Jersey Appellate Court Strikes Down Local Residency Restrictions

It's been a while since a couple trial courts in New Jersey held that local residency restrictions were inconsistent with the state's Megan's Law. An appellate court has finally issued an opinion for the appeals of those decisions and reached the same conclusion as did the trial courts. From the court opinion:

In these appeals, we consider challenges to municipal ordinances prohibiting convicted sex offenders from living within a designated distance of schools, parks, playgrounds and daycare centers. The trial courts in both cases invalidated the ordinances, finding them preempted by state law and violative of the due process, ex post facto and double jeopardy clauses of the New Jersey Constitution. We affirm. We hold that the ordinances are preempted by state law and therefore invalid. Because we decide the appeals on preemption grounds, we do not address the constitutional issues.

I think it is clearly true that the local residency restrictions are inconsistent with the state's Megan's Law. However, if the state was so inclined, it could simply amend the registry statute to allow local residency restrictions. I was a bit more surprised that the appellate court found due process, ex post facto, and double jeopardy grounds to strike down the local law. The court based its decision on state constitutional grounds (which can be more extensive than similar federal rights). I'm no expert on New Jersey constitutional law so I'm not sure if those constitutional rights are afforded greater protection in that state. However, this decision really makes the New Jersey court an outlier among appellate courts who have ruled in residency restriction cases. (edit: as David Giacalone correctly notes in the comments, the appellate court didn't affirm the constitutional reasoning of the trial court. I guess that posting during the never-ending, exciting All-Star game distracted me because I have no idea why I thought the constitutional issues were decided - sorry about that). It will be interesting case to watch as the appeal moves forward.

Thanks for the many readers who sent me the link. f/k/a is also covering the case here.

An "idiot[] ... drunk on pomo feminist legal theory"

That is what the Weekly Standard called me in the most recent edition of the Scrapbook. The link on the magazine's website requires a subscription, but this is a free version on Lexis that has some screwed up formatting. This is the whole segment (with what I believe is the correct formatting) about the citation of my article in Kennedy v. Louisiana:

Kennedy's Footnote

Buried in Justice Anthony Kennedy's majority opinion in Kennedy v. Louisiana is a remarkable citation. Making the inarguable point that a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim, Kennedy mysteriously feels the need to point curious readers to a St. John's Law Review article by Corey Rayburn Yung, a former clerk on the Eighth U.S. Circuit Court of Appeals. You can get the gist of the article from the state-of-the art academic wordplay in its title: "Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes."

Proponents of applying the death penalty to child rapists, per Yung, are driven by a new, but very old, rhetoric. Yung doesn't explain how something can be both "new" and "very old"; but he does argue that "as long as populations and politicians can make the appeal that rape is an evil worse than death, they can push these laws with a load of Victorian, patriarchal baggage attached." Writes Yung,

When womyn's lives are leveraged into a utilitarian calculus that values chastity over survival, the Victorian shackles that feminism has sought to break reassert themselves in insidious fashion. Womyn's choices to live or die are then judged by cultural norms derived from patriarchy.

This is academic mumbo-jumbo. Also, as you can see in the above passage, it's riddled with spelling errors. Yung writes in one of his many footnotes, "I choose to adopt the gender-neutral term 'womyn' to refer to the people more commonly called 'women.'?" Whatever you say, Corey.

From now on, THE SCRAPBOOK chooses to adopt the term "idiotz" to refer to the people more commonly called former law clerks drunk on pomo feminist legal theory.

I guess I should be flattered that the Weekly Standard took notice of my little article. However, I can't see how this is "journalism" using even the loosest sense of the word. The Weekly Standard makes no substantive attacks against my article and doesn't even criticize Justice Kennedy for citing the article. Instead, it engages in personal attacks and snide remarks directed at me. The Weekly Standard article also contains several errors and oddities.

The cite in question wasn't even a "footnote" - it was in the text of the opinion. And the point cited is certainly not "inarguable" - just read the posts at Sentencing Law & Policy, Crime & Consequences, and here to see different perspectives on the issue.

The Weekly Standard then takes just three sentences out of my 25,000+ word law review article (none of which were relevant to the Supreme Court cite) and makes fun of them. The Weekly Standard writes that I did not "explain how something can be both 'new' and 'very old.'" In fact, that is the major theme in the article and is explained throughout. The point of the article is that the "old" Victorian rhetoric that it is "better to be dead than raped" (hence the title) is being revived and has become "new" again in support of capital child rape statutes.

While I certainly did use the word "womyn" in the article (something I no longer do), in no way can that usage seriously be considered a "spelling mistake." As the Weekly Standard noted, I explained my word choice in a footnote. What the Weekly Standard did not mention was that in that footnote, I cited the spelling as proper according to such crazy off-the-wall sources as The New Oxford American Dictionary and Random House Webster's College Dictionary. You may disagree with my choice (and as I mentioned, I've stopped fighting that etymology battle), but it just isn't honest reporting to leave out the authorities cited for the sake of an inaccurate joke.

The Weekly Standard made no attempt to contact me before they ran the article. I have always tried to read a wide range of periodicals including the Weekly Standard, but I am truly disappointed at how low it has sunk.

Another Crazy Long Sex Offender Sentence

Via Volokh Conspiracy, this one is for 4,060 years because the judge mandated that the sentences be served consecutively. At least he can look forward to being eligible for parole in 3209 AD:

A Springtown man was sentenced to 4,060 years in prison Wednesday for sexually assaulting three teenage girls.

James Kevin Pope, 43, will be eligible for parole in the year 3209, according to the Parker County District Attorney’s office.

“Nobody out here could recall a sentence of a longer duration,” said Jeff Swain, a Parker County assistant district attorney.

Jurors convicted Pope of 40 counts of sexual assault of a child and three counts of sexual performance of a child, authorities said. They sentenced him to life in prison for each sex assault conviction and 20 years for each sex performance conviction.

At the request of prosecutors, District Judge Graham Quisenberry ordered Pope to serve the sentences consecutively, Swain said.

Pope abused the girls during a 20-month period that began in May 2006, prosecutors said. The abuse came to the attention of authorities in February 2008 after Pope made several "inappropriate comments" to a friend who notified Child Protective Service.

Can Prosecutors Still Seek the Death Penalty for Child Rape

Doug Berman raises the interesting question after the decision in Kennedy v. Louisiana:

Unless the Supreme Court reconsiders its Kennedy ruling (which seems doubtful, despite good cause), it is now unconstitutional (and thus surely unjust) for a state to seek to execute a defendant for the crime of child rape.  But here is a (silly?) technical question in the wake of Kennedy: is it clearly unconstitutional and/or unjust for a state prosecutor to pursue a capital charge against a terrible child rapist?

Of course, this question only arises in the handful of states that statutorily authorize capital child rape.  But the question may not be merely an academic's fanciful concern for a few reasons:

1.  As the Kennedy opinion indicates, there may be 100 pending capital rape cases in Louisiana (and perhaps a few in some other states).  Does the Kennedy opinion require re-indictments in all these cases, or might a prosecutor opt to continue with these cases under existing state capital law?  One justification for continuing with capital prosecutions could be a genuine hope that an evolving national consensus (or a constitutional amendment) might eventually make execution of terrible child rapists permissible.

2.  Even if a state prosecutor believes a rapist can and never will be executed for a terrible child rape, he or she might still want to seek a death sentence for symbolic or emotional reasons.  Perhaps the victim is eager for the rapist to be condemned to death even if everyone knows the sentence will never be carried out.  Or perhaps a prosecutor believes that securing a death sentence for child rape might facilitate later securing a death sentence against the same defendant for some other capital crime scheduled to be prosecuted at a later time or in another jurisdiction.

3.  And what is a prosecutor concludes that still pursuing capital charges for a terrible child rape makes it easier under state law to secure an life sentence (or to secure a plea agreement to avoid the costs and harms of a trial)?  Indeed, one could even imagine a defense-oriented spin to these issues: perhaps a capital indictment enables a child rape defendant to get extra resources for his defense and/or a death sentence might enable a child rape defendant to be housed under special prison conditions that are preferable to being in the general prison population.

I think Berman makes clear that this is entirely a hypothetical and unlikely scenario. However, I think it attests to how the USSC often disposes of a singular case and leaves it to lower courts to figure out the implications. There is no clear instruction in the Kennedy opinion concerning the disposition of those capital cases which are currently pending. To me, Berman's point illustrates that the USSC could clean up its messes a little better (and here, thankfully, there probably won't be much of a mess).

9th Circuit Issues Opinion Regarding AWA Registration Provisions

I had no idea this case was even on appeal (probably because it was from the District of Guam), but thanks to a helpful reader, I see that the 9th Circuit has issued an opinion concerning the AWA registration requirements (SORNA). The case is US v. Byun and these are some key portions of the opinion:

After Mi Kyung Byun pleaded guilty to a violation of 8 U.S.C. § 1328, “importation into the United States of any alien for the purpose of prostitution,” the district court determined that she had committed a “sex offense” within the meaning of Section 111 of Title I of the Adam Walsh Child Protection and Safety Act of 2006 (“Act” or “Walsh Act”), Pub. L. No. 109-248, 120 Stat. 587, 591 (codified at 42 U.S.C. § 16911), and is therefore subject to the Act’s registration requirements. Byun appeals that determination, maintaining that her offense is not covered by the Act. We conclude that Byun’s offense is a “specified offense against a minor” and therefore a “sex offense” within the meaning of the Act....

Byun was indicted on May 31, 2000 on four counts of alien smuggling, including one count of importing aliens into the United States for purposes of prostitution, in violation of 8 U.S.C. § 1328, and one count of transporting a minor in foreign commerce with the intent that the minor engage in prostitution, in violation of 18 U.S.C. § 2423(a). She ultimately pleaded guilty to three counts of alien smuggling in violation of 8 U.S.C. §§ 1324 and 1328, but did not plead guilty to transporting a minor for purposes of prostitution in violation of 18 U.S.C. § 2423(a)....

In response to the Walsh Act, Byun’s probation officer determined that Byun was a tier II sex offender subject to SORNA’s registration requirements and provided her an “offender notice and acknowledgment of duty to register as a sex offender....”

We assume for purposes of our initial analysis, in Part III.A, that we may consider the fact that Byun’s crime was committed against a minor, even though the age of the victim was not an element of her crime of conviction. Having determined that, assuming the age of Byun’s victim is taken into account, her crime was a sex offense, we then consider in Part III.B whether the statute might instead require a categorical approach to the age of the victim of the crime, and conclude that it does not.

The opinion is very interesting because it mirrors the debate that occurred with the Armed Career Criminal Act (ACCA). In the case of the ACCA, courts initially split on the question of whether the words "violent felony" should be defined using a categorical approach for the underlying crime. That meant courts had to determine if crimes such as drunk driving, escape, and attempted burglary were actually "violent felon[ies]" either on a case-by-case basis or by assuming all crimes within those categories were by their nature "violent felon[ies]."

In the case of the SORNA provisions of the AWA, the 9th Circuit has rejected a categorical approach. This has a couple of important effects. First, a district court must examine the underlying facts of a crime to determine sex offender status instead of merely looking at a list of designated crimes. Second, the non-categorical approach prevents some defendants from pleaing guilty to non-sex-related offenses to avoid "sex offender" designation. It will be interesting to see if other circuits follow the lead of the 9th.

The Death Penalty and Sex Offender Registries

Scott Henson at Grits for Breakfast offers a provocative post connecting a recent exoneration in a death penalty case with sex offender registries:

Sen. Shapiro sounds a little defensive, and perhaps she should. She's correct that Blair's exoneration indeed does not "diminish the fact that Ashley Estell was molested and murdered." What it does do, however, is demonstrate how easily the harsh laws Sen. Shapiro spearheaded can be applied to the wrong person. (The man DNA identified as Estell's actual killer died ten years ago without being prosecuted for the crime.)

Three factors contributed to Michael Blair's wrongful conviction: Inaccurate eyewitness testimony, shoddy forensic science, and assumptions of guilt by police based on Blair's past conviction for sex crimes. The sex offender laws Shapiro spearheaded institutionalized such assumptions - encouraging instead of preventing them - making it more likely in such cases the wrong person gets convicted and the guilty man goes free.

Frankly, IMO the whole sex offender registry idea was always more a public relations stunt than a public safety strategy. The registries includes too many petty offenders, they tend to be filled with errors and perhaps most importantly from a public safety perspective, research shows that "community notification deters first-time sex offenses, but increases recidivism by registered offenders." (emphasis added)

I think this is an interesting and essentially correct observation. This is not to say that the existence of registries made it more likely that someone would be falsely convicted. However, the assumption of the registry that all sex offenders are equally dangerous for life is also embodied in short-cut police work that sometimes causes tunnel-vision focus on particular suspects with prior convictions.

Perhaps Henson's observation is why Doug Berman thinks the decision in Kennedy calls into question the constitutionality of sex offender registries. In discussing the ridiculous penalties in Georgia that were posted about here, Berman had this to say:

I am not sure what I find more remarkable: the fact that Georgia punishes this regulatory offense with a mandatory life term, or the fact that in the wake of the Supreme Court's Kennedy ruling the defendant here could have sexually molested and beaten a dozen children without facing a harsher sentence.

As regular readers know, I have long been troubled that the U.S. Supreme Court's eagerness to hyper-regulate the reach of the death penalty through the Eighth Amendment has not extended to regulating extreme prison terms for relatively minor crimes.  The Georgia high court has previously shown the courage and wisdom to do something about a seemingly crazy prison sentence, and this would seem to be another case calling out for some remedy.

Further, as my post heading suggests, I think the recent Kennedy ruling from the Supreme Court provides some significant support for Bradshaw's constitutional challenge.  If life in prison is the harshest permissible sentence for the worst child rape, can the proportionality principle in the Eighth Amendment permit a regulatory offense to be subject to the same punishment?

I'm not sure I agree. I think you can distill an essential portion of the Kennedy majority to the proposition that death is different. For whatever reason, the USSC has always been reluctant to apply the 8th Amendment as regulating proportionality in non-death cases. I agree with Berman that the idea that the 8th Amendment should excessively focus on the death penalty is nonsense. Maybe the Georgia Supreme Court will be more inclined to explore the undertheorized area of non-death-case proportionality, but I'm pessimistic.

Greenhouse on Kennedy v. Louisiana

In today's NYT, Linda Greenhouse offered this tidbit about Kennedy v. Louisiana:

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.

I, too, was unaware of the modification to the UCMJ. However, it should be noted that the UCMJ has never removed the section making rape of an adult a capital crime (even after the decision in Coker). The military has always received special status in regards to certain constitutional questions. And I'm pretty sure the Court wouldn't have changed its opinion in the slightest had it incorporate the UCMJ rule. Still, the story is notable based upon the work of one blogger.

A few more Kennedy v. Louisiana Posts Around the Web

Here are a few other quality posts about the case that you might be interested in checking out:

Kennedy v. Louisiana

A “National Consensus” in Favor of the Death Penalty for Child Rapists

Death penalty in Texas' 'Jessica's Law' not viable after SCOTUS' Kennedy decision