The Investor Presentation: Your Chance to Set the Hook

The Investor Presentation: Your Chance to Set the Hook

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Public Shaming of DUI Offenders

We were recently alerted to a practice employed by the Nassau (NY) County PD over the last month that effectively amounts to a scarlet letter-like shaming of people accused of DUIs without due process. Hester Prynne has nothing on Lawrence W. Mulvey, Nassau Co.'s Commissioner of Police, and Thomas R. Suozzi, County Executive.

According to Newsday (NY), Nassau County PD is asking local news organizations to publish the names and mug shots of accused DUI offenders in an effort to deter others from getting behind the wheel drunk. The PD is also putting photos of the offenders on a website "Wall of Shame," which some organizations such as Newsday have copied. Here's what County Executive Suozzi has to say on the site:

We are sending a message in Nassau County – if you’ve been drinking and you decide to get behind the wheel of a car we're going to arrest you. By putting the names and photos of those who break the law by driving drunk onto our “Wall of Shame” we’re going to make sure that their friends neighbors and families know about it.

Does anyone else see a problem with this?

The key concept that Suozzi seems to be missing is that by putting the names and photos on his "Wall of Shame," he's acting as judge, jury and executioner all in one swoop before the accused have had a chance to defend themselves. Each of the DUI offenders that are posted on the Nassau County site were arrested (ostensibly based on evidence-based probable cause), but none have actually been convicted of any crime yet. Gregory N. Anagnostopolous? Nope. Dan Kerendi? Nope. Lisa Ziegler? Nope.

The Nassau County spokeswoman, Jennifer Kim, has this to say:

The county executive is not looking to ruin people's lives but to prevent exactly that from happening. We know that this is not a tactic that anyone has tried and we're hoping that it works and that it serves as a deterrent from drunk driving.

Public shaming is a tried-and-tested method as a deterrent, and although conventional wisdom may suggest that stigmatization like as used here is an effective deterrent to crime, the criminology academic literature shows otherwise. John Braithwaite writes in his influential book, Crime, Shame and Reintegration:

Branding on the cheek of offenders was abandoned in eighteenth-century England because it had 'not had its desired effect by deterring offenders from the further committing of crimes and offences, but, on the contrary, such offenders, being rendered thereby to be unfit to be entrusted in any service of employment to get their livelihood in any honest or lawful way, become the more desperate.' (Pike 1876: 280-81)

Along the same lines, Larry J. Siegel argues in his criminal text, Criminology:

As a specific deterrent, stigma is doomed to failure: people who suffer humiliation at the hands of the justice system are just as likely to 'reject their rejectors' by joining a deviant subculture of like-minded people who collectively resist social control.

Yet public officials think it works, and the trend appears to be taking hold. The Maricopa (AZ) County Attorney, Andrew Thomas, has also enacted a public shaming initiative of DUI offenders on his jurisdiction's website and even some local billboards.

Well, at least he waits until they're convicted of a crime before putting these offenders through public humiliation, which is more than we can say for the Nassau County PD.

Other Coverage:

Pajamas Media - You Can't Shame People Out of Driving Drunk
NY Times - A Starring Role for Drivers Who Drink
Total DUI - DUI Shame & Humiliation: Punishment, Deterrent or Embarrassment?

US v. Waybright - Re-Registry Provision Struck Down

A very interesting federal case comes from the unlikeliest of places when it comes to de novo judicial review - Missoula, Montana. Yet Big Sky country is the situs of one of the more intriguing decisions regarding sex offenders to come from the district court level this year. In a potential precedent-setting case, US v. Waybright, No. CR 08-16-M-DWM (D. Montana June 11, 2008), a district court judge may have found a constitutional problem with the Adam Walsh Act.

The defendant, Bernard L. Waybright, had been convicted in May 2004 of a misdemeanor sex crime in a West Virginia state court. As part of his sentence, he was required to register with the federal Sex Offender Registry (SORNA), 42 US § 16901 et seq., which keeps track of where offenders reside. He then traveled to Montana several times but failed to register with local law enforcement, which is a violation of another portion of SORNA, 18 USC § 2250(a). The statute reads:

Whoever--
(1) is required to register under the Sex Offender Registration and Notification Act;
(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of
any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by the Sex Offender
Registration and Notification Act; shall be fined under this title or imprisoned not more
than 10 years, or both.

Waybright challenged the constitutionality of this statute in several ways, most of which failed, but the key successful claim he made was that the portion of SORNA that requires offenders to register and keep their registration current (42 US § 16913) was a violation of the Commerce Clause.

Waybright argues Congress exceeded its power under the Commerce Clause by enacting two specific provisions of SORNA—18 U.S.C. § 2250(a) and 42 U.S.C. § 16913. [...] Section 16913 imposes registration requirements on all sex offenders in the United States regardless of whether they travel in interstate commerce.[...] Waybright asserts, even if § 2250(a) is a valid exercise of Congress’ Commerce Clause power, he cannot be convicted under the statute because he should not have been required to register under § 16913 in the first place. According to Waybright, the registration requirements found at § 16913 also exceed Congress’ power under the Commerce Clause. Waybright contends § 16913 is unconstitutional because Congress lacks the power to force citizens who have been convicted of purely local offenses under state law to register as sex offenders.

District Judge Molloy quickly determined that the only way § 16913 could be appropriately upheld under the Commerce Clause would be under the Lopez (514 US 549) theory that there must be a nexus between the statute and regulation of "activities that substantially affect interstate commerce." Given that threshold, the US then argued that there was a substantial connection between the government's economic interest in regulating child pornography (as part of the Adam Walsh Act) could be undercut by not allowing registration of offenders. Molloy easily dismissed this argument:

Section 16913 has nothing to do with commerce or any sort of economic enterprise; it regulates purely local, non-economic activity. While certain sex offenses may be commercial or economic in nature (e.g., child pornography), sex offenders themselves are not necessarily engaged in commercial or economic activity. Even though the Adam Walsh Act regulates some sex
offenses that are commercial (e.g., the distribution of child pornography), its regulation of sex offenders is not indispensable to the success of its other provisions. [...] But, any effect on
interstate commerce from requiring sex offenders to register is too attenuated to survive scrutiny under the Commerce Clause.

Molloy then rejected an alternative argument made by the government based on the Necessary and Proper clause. Finding no other possible way for the government to justify this Congressional power, Molloy then stated:

Section 16913 is not a valid exercise of any of the congressional powers enumerated in the Constitution. As a consequence, Section 16913 is unconstitutional. To obtain a conviction under § 2250(a), the government must first prove Waybright was required to register under § 16913. Because §16913 is unconstitutional, the government cannot satisfy its burden of proof with respect to § 2250(a). Accordingly, the Indictment must be dismissed.

This is the first district court decision that has declared a portion of the Adam Walsh Act unconstitutional. The government, obviously, plans to appeal to the 9th Circuit Court of Appeals, but we find Molloy's argument to be compelling. Section 16913 has as much to do with interstate commerce as us registering with the local VFW.

One thing to watch for if the government ends up losing its appeal, however, is what Molloy alluded to in his footnote on the constitutionality of the provision. He basically gave Congress a roadmap by which to make the statute constitutional.

In declaring § 16913 unconstitutional, the Court expresses no opinion about the wisdom or necessity of creating comprehensive, national standards for the registration of sex offenders. Nor does the Court mean to suggest Congress could not have achieved the purposes of SORNA in a manner consistent with its enumerated powers. To the contrary, the Court acknowledges § 16913 could be made constitutional by limiting the registration requirement to sex offenders who travel in interstate commerce or by amending § 16913 to encourage the states to enact laws requiring all sex offenders to register.

So far, this case hasn't received much in the way of national legal coverage, but there are a few tidbits floating around:

KXMB.com - Molloy: Sex Offender Registry Rule Unconstitutional
Missoulian.com - Molloy: Sex Offender Registry Rule Unconstitutional
Sentencing Law and Policy - More on the Waybright Decision
US v. Waybright Decision

Around the Square (06.15.08)

Today on Around the Square we take a look at some of hysteria-driven responses that are manifesting themselves in laws that go way beyond what we've seen before. We also found an amusing story involving a cop who believes that honesty is the only policy, and an interesting case from the Pacific northwest that tackles the issue of prosecutorial discretion.

This entry on Crime Scene Blog shows just how far some people would go with respect to the laws on sex crimes. Once again, we completely agree that sex offenders should be punished for their crimes, but the extreme sentences suggested in this petition borderlines on panicky hysteria fueled by "if it bleeds, it leads" headlines and news reports. According to this petition, a 19-year old who has sex with a minor deserves life imprisonment or capital punishment! (Crime Scene Blog, June 12, 2008)

In order to provide equal justice under the law, and to have punishment that is appropriate for the crime, we petition for a minimum of life in prison with no possibility of parole, and, or, Capital punishment for a first time offender. Included in “Jessica’s Law” is a provision that would require all released pedophiles, child abusers, past and present, to wear a GPS monitoring device to ensure that law enforcement can be informed of their whereabouts.

The Daily Kos informs us about a bill currently in Congress that would substantially expand the reach of CODIS, the federal database that catalogs the DNA profiles of criminals at the federal and state levels. One amendment to the bill would require all felons to provide DNA regardless of the crime committed, and another amendment would give states cash incentives to take DNA samples from all arrestees of violent and sex crimes, even at the misdemeanor level. (Daily Kos, June 12, 2008)

Schiff’s amendment would give states cash incentives to begin collecting DNA from anyone arrested for a violent or sex crime, including misdemeanor sex offenses. As the ACLU has argued time and again, innocent people do not belong in a criminal database. Currently, most states do not take DNA from people who have yet to be convicted of a crime, unless that DNA sample is required for an investigation, in which case you can easily get a warrant or court order to obtain it. Including arrestees would dramatically expand the state and federal DNA databases to include vast numbers of innocent people, and would necessarily exacerbate racial disparities that already exist in these databases.

Sex Offender Issues blog linked to a DOJ policy paper from last year that details some of the myriad problems that sex offenders face when attempting to re-enter society. The statistic that 10-20k offenders are released annually as municipalities are making it increasingly difficult for them to live and work there is a compelling one. We also found it interesting that sex offenders are significantly less likely to offend than other released criminals in the first three years out of prison. This flies in the face of the current mood surrounding this issue - see this article for an example of the misinformation floating around. (Center for Sex Offender Management, February 2007)

Facilitating successful reentry is always a challenging endeavor, but with sex offenders specifically, several unique dynamics and barriers make the transition even more difficult. For example, myths about sex offenders and victims, inflated recidivism rates, claims that sex offender treatment is ineffective, and highly publicized cases involving predatory offenders fuel negative public sentiment and exacerbate concerns by policymakers and the public alike about the return of sex offenders to local communities. Furthermore, the proliferation of legislation that specifically targets the sex offender population – including longer minimum mandatory sentences for certain sex crimes, expanded registration and community notification policies, and the creation of “sex offender free” zones that restrict residency, employment, or travel within prescribed areas in many communities – can inadvertently but significantly hamper reintegration efforts.

The next story is a bizarre case of where a campus police officer attempted to get a job with his local force, and felt compelled to be completely honest while taking the polygraph test. He was asked if he had ever had sexual contact with underage girls and whether he possessed child pornography, and amazingly, he answered yes to both. He must have really wanted the job! (Police Link, June 13, 2008)

U.S. Attorney Catherine Hanaway outlined the details Thursday, a day after Cook pleaded guilty in federal court in St. Louis of one count of possession of child pornography. Such a conviction typically results in a prison term of four or five years. She said Cook's candor during the polygraph was stunning. "By all accounts he pretty much just gave it up," Hanaway said. "It does not often happen that people just give it all up in the first conversation." Phelps County Prosecuting Attorney Courtney George speculated that Cook answered honestly to avoid failing the test, administered by a Rolla officer.

This is an interesting case from Washington state where the issue of whether a legislature through its lawmaking powers can prescribe what crime someone is charged with has arisen. A woman charged with several sex crimes is attacking the constitutionality of a law requiring one of her charges to be classified as 'predatory,' which carries a significantly harsher sentence. She is arguing that this mandate represents an unconstitutional usurpation of prosecutorial discretion. It will be interesting to see how this plays out. (Tacoma News-Tribune, June 15, 2008)

MacDonald argued, among other things, that lawmakers overstepped their authority by mandating that prosecutors must add the predatory allegation against all teachers charged with first-degree child molestation against a student. Case law establishes that prosecutors have broad discretion to decide which crimes should be filed in which cases, MacDonald argued in her pleadings. “While the Legislature has the power to create new crimes such as first-degree child molestation committed by a teacher against a student, the prosecutor, not the Legislature, has the discretion to determine when a defendant should be charged with such a crime,” she wrote.

Child Pornography Apparently Now Includes All Videotaped Images of Minors

We're now moving into the theater of the absurd, but apparently the legal definition of what constitutes child pornography has now been expanded to include something that any parent of a high school cheerleader probably already has in their possession - a videotape of underage girls doing cheer and/or dance routines for their school. Round em all up!

Unbelievably, a man in Sacramento, CA, has been charged with felony possession of child pornography for videotaping clothed cheerleaders at a high school competition in February. The tape focused on the buttocks and other parts of the cheerleaders. He was also charged with misdemeanor invasion of privacy. He recently pleaded no contest to the charges in court, and the felony charge will be dropped against him if he completes probation on the misdemeanor.

Gilbert Chan, a veteran business reporter, was caught by University of California, Davis, police on Feb. 3 while surreptitiously videotaping a youth cheerleading competition on campus, Deputy District Rob Gorman told a judge in Yolo Superior Court. Chan was not on duty at the time of the incident, and remains on administrative leave from the paper. Under an agreement with prosecutors, Chan pleaded no contest to a misdemeanor charge of invasion of privacy. Under a no-contest plea, a defendant does not admit guilt, but the effect is substantively the same. He also pleaded no contest to a felony charge of possession of child pornography. The tape focused on the buttocks and other parts of clothed cheerleaders. The cheerleaders were under 18.

As a society, have we lost our minds? How on earth is this child pornography???

Let's recap the facts here. The cheerleaders were fully clothed. They were performing at a public university in a public venue. Chan was undoubtedly videotaping the girls, but for what purpose? Perhaps he was making a documentary on the sexual exploitation of teens in the cheerleading industry. Perhaps he enjoys cheerleading as a hobby and simply wanted to memorialize some of the routines on tape. Charging him with child pornography in this situation completely borders upon the policing of thoughts. It's ok to sit in the stands and watch the routines but not to videotape them? How is this any different than looking at advertisements of juniors in swimsuits in a newspaper or a magazine? Is that child pornography too? Are cheerleading outfits by definition pornographic materials now?

According to the California statute, the felony charge (CA 311.11) requires possession of "obscene matter depicting sexual conduct of a person under 18." The question of what constitutes obscenity was fairly well established in Miller v. California, 413 US 15, where the Supreme Court gave the following guidelines:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Since when does an innocent cheerleading routine constitute sexual conduct?

We simply cannot believe this story, and frankly, we're even more confused that Chan didn't contest these charges with more gusto. Consider that as part of his probation he is not allowed to be anywhere that cheerleaders congregate, which means, let's hope that Chan isn't a sports fan or that he doesn't have athletes in his family who he might want to watch play sports, because he's not allowed to do that anymore.

More Coverage:

Associated Content - Should Gilbert Chan Have Pornographic Charges?
McClatchey Watch - Sacramento Bee Reporter Enters No Contest Plea to Possession of Child Pornography
Right Thinking From the Left Coast - Cheering for Sex Offenders

Around the Square (06.12.08)

Today in Around the Square we take a look at an article from Kentucky that gives some important information about the sexual abuse cycle that offenders face without treatment. We also consider several articles about the growing trend for local municipalities to restrict where sex offenders can go. It's getting to the point where, in some places, they can't go much of anywhere. And some are starting to fight back.

First, we consider an article about sex offenders located in Kentucky. The interesting part of the piece is where the author discusses the sexual abuse cycle. We wish there were more articles like this so that people would see that sex offenders often suffer from a treatable disease. The typical kneejerk response of "predator!" is missing here, and that's refreshing from a mainstream media article. (The Morehead News, June 10, 2008)

The sexual abuse cycle involves secrecy, denial and isolation and unfolds in the following way:

(1) Emotional pain
Low self-esteem
Focus on self
Low empathy

(2) Unhealthy fantasies
Masturbation
Pornography

(3) Dissatisfaction

(4) Thinking about acting out fantasies

(5) Distorted thinking
Excuses to offend
Alcohol and drug abuse

(6) Seemingly unimportant decisions
Plotting and planning the offense

(7) High risk situation

(8) Selecting and grooming the victim

(9) Offending

(10) Temporary Relief

(11) False Promises/The cover up

(12) Stop for a while

(13) Emotional pain returns

Another article from Easton, PA, discusses a proposed ordinance in that town that would limit the areas where a sex offender may live. Critics of such broad residency restrictions are pointing out that by forcing sex offenders further into rural areas, an unintended consequence that arises is that the offender is less likely to get the assistance he needs in the form of law enforcement and treatment resources that may actually contribute to recidivism. (The Express-Times, June 11, 2008)

Moyer, who is also a member of the National Alliance to End Sexual Violence, said she can empathize with a community looking to do whatever it can to protect its children. Probation officials certainly wouldn't want a recently paroled sex offender living next door to a day care, she said. But as residency restrictions become more prevalent, offenders will find themselves living in more rural areas with less law enforcement, fewer treatment resources and the isolation that increases the chances of recidivism, Moyer said. "You want to make their lives as manageable and accountable as possible," she said. Several victim advocates, including Moyer, recount stories of paroled sex offenders in Florida, which has a statewide residency prohibition, moving to a bridge underpass because of limited housing options. "What you most don't want to do is to have a recently released sex offender associating with other offenders," Moyer said. "It just seems to fly in the face of what we know about sex offenders."

Here's yet another example of the further isolation that convicted sex offenders are facing from our nation's lawmakers. They're extending their overbroad reach even into nursing home facilities. (KOCO.com, June 10, 2008)

Gov. Brad Henry signed first-in-the-nation legislation Tuesday that takes registered sex offenders requiring long-term care out of standard nursing homes to prevent assaults, rapes and murders by offenders who live in the same facilities as their victims. Flanked by more than a dozen supporters of the bill, Henry ceremoniously signed it into law after praising the efforts of elder rights advocate Wes Bledsoe to protect elderly nursing home residents from high-risk sex offenders convicted of such crimes as rape, crimes against nature and a variety of other offenses.

Some offenders have had enough. A John Doe in Westbrook, Maine, has decided to challenge the constitutionality of a town ordinance making it illegal for a sex offender to be within 2500 feet of any place where children may gather. (American Journal, June 12, 2008)

The crux of the argument against this regulation is whether it is “constitutionally permissible” to enforce a new law on sex offenders who committed their crimes before the law existed. “The question is, how do you apply these things retroactively?” Dale said. “They're saying you can't do it.” According to Dale, similar suits have been pursued over the past few years, and not just in Maine. “This is a phenomenon across the country,” he said.