Sex Crimes

La. Gov. Scraps Civil Commitment Program

Louisiana Gov. Bobby Jindal, the man who in March proposed chemical castration for sex offenders, has now scrapped a proposed post-prison civil commitment program as too expensive. From the Daily Reveille:

Lauren Mendes, a spokeswoman for the Department of Health and Hospitals, said the proposal was dead for the current legislative session.

"It is a concept that DHH and the governor's office do support and will revisit when it's more financially viable for Louisiana," she said.

Rep. Fred Mills' bill would have provided treatment for certain sex offenders after their release from prison. Mills said the program would require about $12 million over five years — for surveillance equipment, medication and psychiatric evaluations — an expensive price tag in a year of budget cuts.

Jindal is backing several bills this year to crack down on sex offenders, but Mills' was the most ambitious. The others are changes to existing law, such as lengthening certain prison terms for sex crimes.

"We know that Rep. Mills has worked hard on this bill and we support his work to find a more cost-effective way to pursue this legislation, especially as we face multiple-year budget challenges," said Kyle Plotkin, a spokesman for the governor's office.

Mills said initial estimates for the civil commitment program — $26,000 annually per sex offender — turned out to be low compared to a similar program in Texas. Most sex offenders in the program would also require the treatments for life, Mills said, compounding the future costs.

Mills told the House Appropriations Committee that he agreed with the governor's office and DHH that the bill is too costly.

As the California experience with lifetime real-time GPS monitoring has illustrated, the economic woes of the country might slow the rate at which different governments adopt more restrictions on sex offenders.

H/T: Sentencing Law & Policy.

Castration Makes a Come Back

With Gov. Jindal putting sex offender policy front-and-center in Louisiana politics, the issue of castration has reemerged. The Daily Beast has more:

Should we “chemically castrate” sex offenders? Victims’ rights groups, Governor Bobby Jindal—and even some sex offenders themselves—say yes....

Frank Zimring, a law professor at University of California at Berkeley and an expert on sex crimes, also has qualms. He says the idea that all sex offenders repeat their crimes is a “folk belief,” and that recidivist rates are much lower than widely believed. He cites a Department of Justice study that tracked nearly 10,000 sex offenders—more than 4,000 of them convicted of child molesting—for three years after their 1994 release; the re-arrest rate for another sex crime was only 5.3 percent....

Also, experts say, both types of castration will only work for sex offenders motivated by sexual desire rather than anger and aggression. "If you have people who aren't primarily motivated by sexual arousal, you have to layer interventions to maintain safety," says Maia Christopher, executive director of the Association for the Treatment of Sexual Abusers....

And guess who else doesn't have much patience with chemical castration as an alternative to lock-up? Certain victims' rights groups. "If they want to castrate them, that's fine," says Debbie Savoie, vice president of the Massachusetts group Community Voices. "The main issue," she says, "is they're not locking them up long enough."

The article covers a lot of the arguments for castration and I've selectively excerpted the portions that I think are most powerful against castration as punishment. With sex offenders, every punishment that was old is new again. Civil commitment for reasons of "moral hygiene" was relegated to the dustbin of history, but reemerged in the 1990's as a means of incapacitating offenders. Registries for criminals failed as a result of the Court's decision in Lambert v. California. Banishment and scarlet letters disappeared for centuries. However, as with castration, old punishment techniques are making a come back.

Federal Sentencing Reporter Sex Offender Issue is Out

As Doug Berman notes, the Federal Sentencing Reporter issue dedicated to sex offender issues is out. You can find the details here. I was honored to be one of the contributors and as I noted I have also made my piece available on SSRN. Here is the entire list of articles in the issue:

• Michael O’Hear, Perpetual Panic
• Mary Ann Farkas & Gale Miller, Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals
• Ian N. Friedman & Kristina W. Supler, Child Pornography Sentencing: The Road Here and the Road Ahead
• Eric S. Janus & Robert A. Prentky, Sexual Predator Laws: A Two-Decade Retrospective
• Mary Graw Leary, Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court’s Book on the Death Penalty
• Joseph L. Lester, Brandishing the Mark of Cain: Defects in the Adam Walsh Act
• Michael Petrunik, Lisa Murphy, & J. Paul Fedoroff, American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness
• Richard G. Wright, From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy
• Corey Rayburn Yung, The Sex Offender Registration and Notification Act and the Commerce Clause

Michael O'Hear, who blogs at the Marquette University Law School Faculty Blog and was the editor for the issue, has also put his editor's observations on SSRN. Here is a taste from the article: 

Legislators who wish to respond to strong public sentiment but who are troubled by the track record of statutes adopted in times of panic should consider a legislative device that reverses the forces of legislative inertia: the sunset provision. When adopted, new criminal penalties can be set to expire within a given period of time. The history of the crack panic, as well as the earlier sex crime panics, suggests that ten years may be an ideal period of time to permit public passions to subside. A decade should also be a good amount of time to permit rigorous evaluation of the effectiveness of new laws. For instance, as Janus and Prentky point out in this issue, the spread of civil commitment laws was rapid in the 1990s but slowed dramatically this decade as the fiscal burdens of commitment became clearer.84 In the current budgetary climate, one wonders how many state legislatures would now be happy to see civil commitments die out quietly under the terms of a judicious sunset provision. To be sure, in the panic atmosphere, a sunset provision may be criticized as watering down the legislature’s condemnation of whatever class of offense or offenders is being targeted. On the other hand, the adoption of a sunset does not necessarily mean there will be a weakening of the legal response to the subject of current public outrage. Indeed, if public concern remains high over an extended period of time and analysis shows that tough penal responses are helpful, then the imminent expiration of one set of penalties may actually facilitate the enactment of even higher penalties. But, if public concern wanes or penal responses are shown to be ineffective, it should be made as easy as possible to redirect scarce criminal justice resources in more fruitful directions.

I wanted to thank Berman and O'Hear for inviting me to take part in the issue. I think all of the articles look really interesting and I look forward to reading them.

Alabama Legislator Wants Death Penalty for Child Rapists

Although the Supreme Court held in Kennedy v. Louisiana that the Eighth Amendment prohibits the death penalty for commiting the crime of raping a child, one Alabama legislator apparently wants to press the issue (or is oblivious to the Court's holding). State Rep. Steve Hurst has proposed a new law allowing judges to sentence persons older than 21 to death for the rape of a child 6 years old or younger. Sentencing Law & Policy has more. From NBC13.com:

Pedophiles who rape young children could face the death penalty in Alabama…if one state lawmaker gets his way.

State Representative Steve Hurst of Munford in Talladega County is proposing a new law that would allow a judge to use capital punishment if someone older than 21 is convicted of raping a child 6 years old or younger.

The death penalty is a punishment that -  so far - has been reserved only for murderers. 

Should child molesters now be included?

With the growing number of child sex predators, Hurst says capital punishment is an appropriate sentence for adult rapists older than 21 who violate children 6 years old or younger.

“You take a child who’s completely helpless. They have no way to defend themselves. And someone does something of this nature to them, you have literally destroyed that child for the rest of their life,“ says Hurst.

But sex psychologist Dr. Keith Abrams warns he doesn’t think the strategy will work.

“We’ve had capital punishment for decades, and we still have murder,“ says Abrams.

Abrams says instead of focusing on deterrents, we should focus on prevention, for both potential victims and abusers.

In Abrams opinion, any adult who could rape a young child is past the point of being concerned about the repercussions.

“When people commit those kinds of crimes, they get to a place mentally where they’re not thinking about deterrents,“ explains Abrams.

The Jefferson County Sheriff’s Department says there are now more than 1000 registered sex offenders living in the county…and at least one third will re-offend.

Introducing capital punishment for some might not be a fix all, but Hurst says, it’s at least a start.

“You’ve got to keep knocking at the door, or you can’t never get in.“

Hurst is still waiting to schedule this bill’s first hearing before the Alabama Legislature.

I think the legislators of Alabama just enjoy being outliers when it comes to sex crimes legislation. This is the only state with a ban on sex toy distribution. And it's rape statute is the oddest in the U.S. 

Gov. Jindal Getting Tougher on Sex Offenders

In what Doug Berman refers to as "yet another example of the one-way ratchet of criminal laws and the potential harm of legislative reactions to one awful crime," Louisiana Gov. Bobby Jindal has announced a series of new sex offender legislation including a proposal to criminally charge day care owners who knowingly allow registered sex offenders to enter the property.  The American Constitution Society Blog has more. From the Shreveport Times:

If a day care owner knowingly allows a registered sex offender to come onto the facility's property, that owner could be charged with a crime and face prison time, according to a proposed law by Gov. Bobby Jindal.

The proposal was among several pieces of suggested sex crime legislation Jindal announced Thursday at the Caddo Parish Correctional Center.

"This will resonate with the people here," Jindal said.

His words came about a month after a local day care owner's son, a registered sex offender, was arrested after being accused of sex crimes with children at the facility.

Rodney Chism, son of Katherine Robbins, owner of the Smart Start Learning Center Express in Caddo Parish, was arrested in December on two counts of juvenile molestation. Robbins, who allegedly knew her son was a sex offender, could only be charged with perjury because there are no existing laws criminalizing such scenarios. The day care center was closed after authorities with the state Department of Social Services said Robbins had not performed adequate background checks on her employees.

Other proposals listed by the governor would strengthen many existing sex offender laws, such as making some of the most violent sex offenders submit to psychiatric evaluation after their prison and parole terms end. If a psychiatric evaluator determined the offender was likely to commit a crime again, the change would mean a district attorney could request indefinite, forced evaluation of that person until he or she was deemed to be no longer a threat.

"If you are a monster who preys on children you better not be in Louisiana," Jindal said.

The day care provision is interesting because it is another attempt to punish third parties for allowing sex offenders to be at particular locations. The last statement pretty much is a call for banishment. As for the rest, would you expect anything different from the governor who signed into law provisions for chemical castration of sex offenders?

Ohio State Journal of Criminal Law

The new issue is out with a wonderful sex-crimes-focused lineup of articles. Wayne Logan, who does excellent work in this area put together a symposium of three very important articles.

The first article is Virginia Davis and Kevin Washburn, Sex Offender Registration in Indian Country, 6 Ohio St. J. Crim. L. 3 (2008). This piece addresses some of the thorny issues raised by the application of registration laws to Native America. While the issues are limited geographically, the article should be read by anyone interested in registration issues more broadly.

The second piece is Eric S. Janus and Brad Bolin, An End-Game for Sexually Violent Predator Laws: As-Applied Invalidation, 6 Ohio St. J. Crim. L. 25 (2008). You might remember Janus as the author of the excellent book Failure to Protect. The article is focused on the use of civil commitment as a means of regulating sex offenders. Janus and Bolin suggest an interesting way of constructing the legal challenge to such laws that offers insight surely valuable to practitioners and scholars alike.

 

The final symposium piece is by the editor himself: Wayne A. Logan, Criminal Justice Federalism and National Sex Offender Policy, 6 Ohio St. J. Crim. L. 51 (2008). Logan's article focuses on an issue near and dear to my heart: whether the federal government has any role in the construction of sex offender policy. It's a very long piece and I've only made my first quick read-through of it. I think it is an absolute must read for anyone concerned with federal sex offender policy. Here is a taste (which is the conclusion to the article):

Federal concern over the perceived national menace of crime is of course not new. What is new, however, is the federal government's resolve to impose a national solution and the lack of any meaningful countervailing resistance to it. Just as the U.S. has increasingly moved to nationalize and render more uniform heretofore disparate state approaches to commercial law, such as products liability, and environmental policy, it has done so with criminal justice policy—in particular that relating to sex offender registration and community notification. That the shift has occurred via federal use of the "Trojan horse" of conditional spending power authority, rather than through the more controversial method of Commerce Clause authority, does not alter the outcome. The nationalization of registration and notification, systematically achieved by the federal government over a fifteen-year period, has had major effect on constitutional federalism and the states themselves. It may be that the unique social and political dynamic inspired by sex offenders is unique, limiting the broader implications of the story chronicled here. However, given the high political salience and potency of crime control more generally, and the disdain felt for criminal offenders, this might well not be the case. If indeed the essence of federalism lies, as William Livingston asserted over fifty years ago, "not in the institutional or constitutional structure but in [the attitudes of] society itself" then the transformation recounted here may well have broader implications for other criminal justice policy areas in the years to come.

Outside of the sex offender policy symposium, there is an article about Kennedy v. Louisiana: Heidi M. Hurd, Death to Rapists: A Comment on Kennedy v. Louisiana, 6 Ohio St. J. Crim. L. 351 (2008). Given all the other good stuff in the issue, I haven't even had a chance to look at this last piece, but I'm looking forward to it.

I applaud the efforts of the Ohio State Journal of Criminal Law, Doug Berman, and Wayne Logan in putting together such a valuable contribution to the scholarship regarding sex offender laws. I hope everyone checks the articles out.

Louisiana Supreme Court Addresses Kennedy Re-Sentencing

In light of the U.S. Supreme Court decision in Kennedy v. Louisiana, the Louisiana Supreme Court has ordered that Mr. Kennedy be re-sentenced to "life imprisonment at hard labor without benefit of parole, probation or suspension of sentence." The Advocate New Orleans has more. From the opinion:

On remand from the United States Supreme Court, Kennedy v. Louisiana, 128 S.Ct. 2641, 171 L.Ed.2d 929, and in light of the Supreme Court's holding that even in cases involving the rape of a child, "[a]s it relates to crimes against individuals . . . the death penalty should not be expanded to instances where the victim's life was not taken," 128 S.Ct. at 2659, which effectively sets aside defendant's death sentence, we are constrained to grant defendant's present motion and to remand this case to the 24 th Judicial District Court for the resentencing of defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

H/T: How Appealing.

HLR Publishes Kennedy Case Note

Harvard Law Review's latest issue is now available online. The issue includes a nice case note on Kennedy v. Louisiana.  From the summary:

... Writing for the Court, Justice Kennedy held "that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth" Amendment's proscription of cruel and unusual punishment, basing the ruling "both on consensus and the Court's own independent judgment." ... The Court also rejected Louisiana's broader argument that the few states that had capital rape statutes better represented the current standards of society because they represented "a consistent direction of change in support of the death penalty for child rape," saying that consistent change had not been proven and might not make a difference anyway. ... The Kennedy Court held that capital punishment is disproportionate for the crime of child rape, even though the victim " must endure years of long anguish" - no matter how terrible a rape, it is not murder. ... "These interpretations," said Justice Alito, "have posed a very high hurdle for state legislatures considering the passage of new laws permitting the death penalty for the rape of a child." ... It is troubling that this second part of the Court's Eighth Amendment test rests on even less rigorous methods to define evolving standards of decency than the statute-counting rubric used to determine the national consensus. ... A presumption of constitutionality would allow states to continue to change their statutes during periods of apparent disagreement as to a national consensus, and require the Court to wait to see if a consensus truly emerges before declaring a standard of decency to exist by forcing it into existence.

New Article about Kennedy v. Louisiana

Bidish Sarma has written a short article at the Yale Journal Pocket Part about the legacy of the Court's decision in Kennedy v. Louisiana. Sarma was involved in the litigation, so the article comes from an interesting perspective. I think the article is a valuable contribution to defining what Kennedy will stand for in future cases. On that point, this is what Sarma had to say:

The decision’s lasting legacy shall emerge from the Court’s “independent judgment” analysis. The majority stated that it struck down Louisiana’s law because of “both [the] consensus and our own independent judgment.” In his statement respecting denial of rehearing, Justice Scalia contended that the majority opinion turned only on the independent judgment of the Court; “there is no reason to believe that absence of a national consensus would provoke second thoughts.”

The Court’s response to the State’s petition may support Scalia’s conclusion. The petition squarely asked whether the Court’s independent judgment could serve as a stand-alone justification. The majority tweaked its opinion with a footnote, but did not address this question. This silence bolsters Scalia’s claim, despite the majority’s insistence that the national consensus “is entitled to great weight.”

Anti-death penalty advocates are now surely encouraged to pressure the Court to declare inhumane laws unconstitutional without the typical inquiry into the number of state legislatures that have abandoned the practice. The opportunity to appeal to the Court’s independent judgment provides great hope for those seeking to defeat the death penalty. Indeed, as Justice Stevens’ concurring opinion in Baze v. Rees foreshadows, the moment a plurality of the Court will find the arbitrary application of the death penalty cruel and unusual—without tallying state laws—is now foreseeable.

I am not sure I agree with Sarma on this point. I think the "independent judgment" analysis is really the same as the subjective component applied in prior cases. I think Sarma may be giving too much credence to Scalia's characterization of the majority opinion. To my mind, this decision is a logical extension of the objective analysis that has been used in every case since Coker.

To be fair, though, I am sure Sarma would have a lot to say in response to my argument. While I'm generally a fan of the online law review format, Yale's article limitations sometimes limit the author's ability to make sophisticated legal argument. The word cap, I believe, is 1,500 words. By the time an author sets up the argument, it is difficult to fully analyze the legal issues involved. So, my criticism should be taken with a grain of salt as I have the luxury of no length limitations, no need to explain the background, and no editors breathing down my neck. So, I recommend checking out Sarma's piece for yourself.

Sentencing Law & Policy is also covering the article here.

Kennedy Rehearing Roundup

To finally put the blogger's nail in the Kennedy v. Louisiana coffin, here are some interesting links about rehearing (including a couple that were actually posted before the Court voted against rehearing):

Death Penalty for Child Rape: How to Measure Consensus?
Kennedy (lack of) rehearing wrap-up and the future of criminal justice federalism
Deep thoughts about Kennedy while rehearing motion pending
A Westerbergian analysis of Kennedy v. Louisiana
Instant evolution's gonna get you
Supreme Court Won't Change Decision Preventing Executions for Child Rape
Case Closed (HT: Crime & Consequences)
Analysis: The death penalty calculus is unchanged

The final update to the Kennedy v. Louisiana Resource Page should be up in the next week.