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.

Trapped in the Closet, Indeed

Original Posting here.

There was a really interesting article on the Huffington Post this week (h/t GlennSacks.com) highlighting a case that involves child molestation, a platinum-record pop star, and explicit videos showing this star in various compromising positions. At first blush, you might think Michael Jackson has gotten himself into more hot water on his Neverland Ranch; but no, the pop star in question is none other than R. Kelly, who seems to have been fighting off this perception for years.

Robert Sylvester Kelly's Mug Shot

The reason it feels that way is largely because he has been - he was first accused of child pornography by Chicago police back in 2002, and it's taken the better part of six years for his case to finally make it to trial. The original 21 counts have been whittled down to the current 14, each of which is a class one felony in the state of Illinois, which, if convicted, requires a mandatory sentence of between 4-15 years. Strangely, though, outside of Chicago, such a high-profile and scandalous case doesn't seem to be attracting all that much attention. Bill Wyman of THP writes:

But substantive coverage has been almost nonexistent over the past seven years. Why? Well, there's the ick factor -- who wants to write about a case at the center of which is a video that shows a grown man not just having sex with but urinating into the face of a girl who police say is 13 or 14 years old? There's the racism factor, too; one suspects that if the accusations were about Kelly's having had sex with under-aged white girls, rather than black girls from Chicago's poor neighborhoods, Dan Abrams and Nancy Grace would be all over it.

Wyman is undoubtedly onto something with the racial component. Considering that all it takes is another missing white girl from middle America to enable the collective histrionics of the cable talking heads; one could easily foretell the outrage if the girls in question looked like Mindys and Alisons rather than Tashas and Aaliyahs. But the ick factor? In a hyper-sexualized culture where young girls wear Halloween costumes that their mothers wouldn't have even contemplated a generation ago, a culture where an entire industry has arisen around using a stripper pole as an exercise device, it seems unusual that the mainstream media isn't all over this trial. Just imagine the unprecedented levels of outrage that could be reached!

Given the surplus of prejudicial evidence against Kelly that the jury is seeing in this case, it's difficult to believe that Kelly is going to navigate his way out of this one.

[T]he defense has endured the ignominy of nearly a dozen people testifying they recognize Kelly and an under-aged girl on the tape. The room in which the tape was made was identified. So was a mole on Kelly's back. Just yesterday, a woman testified to personally knowing that Kelly was having sex with the girl who appears on the tape at the center of the case. You might say her perspective on the matter was unique: She'd had group sex with the two of them. Kelly filmed the two of them twice, she testified. She also said Kelly toted around a duffle bag, so he could keep his home-made sex tapes -- some of them with under-age girls -- with him at all times.

With that said, R. Kelly's defense attorney has implemented a creative defense to challenge the provenance of the sex tape at the center of the trial. The defense called Jim DeRogatis as a witness, the reporter for the Chicago Sun-Times who first broke the story in 2000. He subsequently refused to answer questions (citing Fifth Amendment protections) as to whether he made a copy of the alleged sex tape when he received it from an anonymous source in 2002. How interesting it is that the defense is effectively accusing DeRogatis of a crime involving child pornography while simultaneously alleging that R. Kelly is innocent!

Um, Mr. Kelly, What's Going On in Here?

Nobody knows how this lurid trial is going to end, but there's one thing we can remain sure about. R.Kelly's lewd and lascivious proclivities will no longer be trapped in the closet after this month.

Around the Square (06.04.08)

Original Posting here.

Today on Around the Square we take a look at just how difficult it can be for registered sex offenders to find housing, any housing, and how they sometimes have to deal with problems even for doing something legal like putting up cameras on their property. We also take a look at a story that questions the efficacy of all the public money put into tracking sex offenders - is the public really getting the bang for its buck? Finally we also examine what happens to the students at a high school where a popular athlete is accused of a sex crime. Enjoy.

A no-loitering ordinance seems like an easy proposition for many registered sex offenders who often struggle simply to find adequate housing. This story from Fargo, ND, exhibits just how difficult it can be for offenders to find a place to live. We might give up too after being denied 38 times. (WCCO - June 1, 2008)

North Dakota and Minnesota have programs to provide transitional housing for sex
offenders after their release from prison. In Fargo, Ellric Giroux and
Andy Perhus are living in a Fargo apartment after being turned down a combined
38 times when they tried to find place to live. Barb Breiland, the program
manager for the North Dakota Sex Offender Specialist Unit, said the state leases
the apartment as transitional housing. For $7 a day, including utilities,
"it beats living on the street," said Giroux, who was homeless for a year in
Minneapolis.

Keeping the theme, the St. Petersburg (FL) Times asks the same question, Where is a Sex Offender to Live? (St. Petersburg Times, May 15, 2008)

Nobody wants them. No matter the city, no matter the street, nobody wants
a sex offender in the neighborhood. But the fact is, 9 of 10 people in
Pinellas, Hillsborough and Pasco counties live within a half-mile of a sex
offender. With more than 2,600 offenders in the three counties, they live
virtually everywhere.

Joe Coffie, an admitted Level 2 sex offender in New York, has caused all kinds of hysteria over his legal decision to put security cameras on the outside of his house. (WWNY, May 30, 2008)

Coffie says that he installed the cameras for safety and security only and not
to spy on his neighbors. He also claimed that there was drug activity on
the street and he was within his legal rights to place the cameras on his
home. The Watertown Police say that he is within his rights and that their
hands are tied. However, there are families with children that live on
Bronson Street and concerned residents want to know what Coffie is videotaping
and if their children are at risk. Michael Cooke, a concerned parent and
resident, says something has to be done. “If something doesn’t get
done…something is going to happen to one of these kids. I’m might be my kids, it
could be the ones across the street,” she said.

We so often hear of all these various tracking mechanisms and databases that the public wants law enforcement to use to keep tabs on registered sex offenders, but we rarely think about the real costs of such tools. This report from Wichita, Kansas, shows that there are significant and real costs associated with these often-overbroad measures that may not result in more effective policing. (Kansas.com, June 3, 2008)

It will cost Sedgwick County about $415,000 a year to make sure criminal
offenders live where they say they live, money the county manager says could be
better spent to put more deputies on patrol. On Wednesday, county
commissioners will consider authorizing a new "offender registration unit" to
comply with state and federal laws that require the sheriff's office to keep
tabs on people convicted of a wide range of sex, drug and violent
offenses. County Manager William Buchanan said the county will do what it
must to comply, but he's not convinced the effort will do much more than make
people feel safer. "If you're going to spend these kinds of dollars, I
guess I'd rather see (law enforcement) people on the streets targeting these
types of crimes," he said.

Finally for today, this story also out of St. Petersburg, Florida, exhibits how the cattiness and rumormongering in the high school environment can get completely out of whack when a sexual assault by a popular football player is involved. (St. Petersburg Times, June 1, 2008)

Last month, a 15-year-old girl at Dixie Hollins High accused an 18-year-old
football player of sexually assaulting her on a school bus while two others
stood lookout. Rumors flew through the halls of the school. Students
spread the name of the girl, despite laws prohibiting authorities from releasing
her identity. They circulated a petition saying she was promiscuous and a
willing participant. Some even blamed her for ruining the lives of the football
players, who are well known and liked by their peers.

Hot For Teacher No More

Original Posting here.

An AP report Friday showed that ten states have taken action in the past few months to crack down on sexually abusive teachers in our nation's schools. This comes on the heels of a previous AP study that found 2570 educators had lost their teaching credentials or otherwise been sanctioned from 2001-05 because of sexual allegations involving students. The report goes on to state:

While the vast majority of America's roughly 3 million public school teachers are committed professionals, a disturbing number have engaged in sexual misconduct. When faced with evidence of abuse, administrators sometimes fail to let others know about it, and legal loopholes let some offenders stay in the classroom. Experts who track sexual abuse say the problem is even bigger than those numbers suggest. Underreporting is common, they say, because victims often are ostracized and accusations are difficult to prove. Governors, state education officials and lawmakers have led the push for new measures, which include tougher penalties for teachers who abuse students, punishment for administrators who fail to properly oversee their faculty, and an effort to train an entire state's corps of teachers to recognize potential abusers in their midst.

These measures include Maine legislation that will require school districts to share information on a teacher disciplined for any reason, including sexual abuse, as well as a Utah law that will permanently revoke the license from any educator guilty of sexual abuse. Several other loopholes have also been closed off or severely curtailed in various states:

• Backroom deals. Florida's new ethics law for teachers bars school districts from entering into confidential agreements with teachers who get in trouble. Such deals crop up around the country, allowing schools to remove a problem teacher but letting that educator quietly move on to another district or state.

• Failing to report. Kentucky's law raised the stakes for officials who fail to report allegations of abuse, bringing 90 days in jail for a first offense and up to five years in prison for repeat violations.

• Problem teachers returning to the classroom. Colorado would require any teacher who lost a license for sexual misconduct to promise never to teach again. The measure awaits Gov. Bill Ritter's signature. Virginia closed a gap that made it possible for teachers who abuse students to be hired by another school district in the time between when they are fired and when the state Education Department is notified.

• South Carolina looked beyond punishment, instead creating a statewide training program that aims to instruct 10,000 teachers, administrators, guidance counselors, coaches and school nurses on how to prevent, identify and report cases of abuse.

Now, don't get us wrong, we are 100% behind the notion that sexually abusive educators have absolutely no business working in our childrens' schools. If a teacher thinks that he/she should be dating (or worse) someone in their teens (or worse), then he/she should face the appropriate consequences, including job-related sanctions as well as possible criminal charges. These people do not belong in the educational system, no matter how well they can explain Chaucer or teach derivatives. But what bothers us is the last paragraph of the report:

The training will focus not only on stopping sexual predators but on preventing simply inappropriate relationships, said schools Superintendent Jim Rex. Sometimes young, naive teachers do improper things, with no ill will toward the student, and get into trouble, such as texting students' cell phones or giving them a ride home. "So much of what schools do is based on trust. Not only must kids trust their teachers, but parents have to trust those teachers too," Rex said. "And schools have to earn that trust each and every day."

We've all heard of doctors practicing defensive medicine - ordering up myriad tests to cover every base in an effort to avoid liability - but we're afraid that the educational climate is getting to a tipping point where teachers are practicing defensive mentoring. As we think back to our nascent years, we recall that our very best teachers were those who were indeed willing to cross an invisible barrier and give us that extra attention we sought or needed, the pat on the back when things weren't going well, or the ride home when our parents got stuck at work.

Granted, in our case the pat on the back never turned into a hand on the ass, but it is a shame that we're losing this teacher-student relationship that goes beyond the in-class pedagogy in the name of fighting sexual abuse. Clearly, the one-tenth of one percent of bad apple teachers are resulting in a significantly devalued education for the rest of our children.

Around the Square (06.02.08)

Original Posting here.

Today marks the first installment of a new piece called Around the Square that we'll be posting periodically (hopefully a couple of times a week) that will capture some of the interesting stories out there percolating in the news feeds and blogosphere that may not rise up to the level of a full posting, but are still worth briefly writing about. We're calling it Around the Square because we often feel as if we're a lonely town crier screaming at the top of our lungs about the obvious and apparent injustices placed on those accused of sex crimes, while the restless and bloodthirsty mob is gathering nearby with pitchforks and torches in tow.


We start with a story from Hamilton, NJ, where a popular high school football coach seems to be getting railroaded by the local prosecutor for pulling a female student away from a 6-year old that she was harassing. He has been charged with criminal sexual contact for allegedly rubbing against the 18-year old student's buttocks while pulling her away. (The Trentonian, Trenton, NJ - June 1)

Carl Jordan, 39, has been charged with criminal contact following an incident in April when his groin allegedly rubbed against an 18-year-old female student’s buttocks. Jordan’s attorney, Robert Wills, said the U.S. Naval Academy grad pulled the female student away from a 6-year-old boy whom she was allegedly harassing. Saying Jordan “did nothing wrong,” DiStephano concluded his public statement by noting that the incident occurred out in the open and not “behind closed doors.” As DiStephano sat down, local residents clapped their hands in a round of approval.

Remember our post from Friday critiquing the KIDS Act bill currently in Congress? Apparently the great state of Tennessee has already decided to require sex offenders to submit their email addresses and IM screen names, effective July 1st. (Eyewitness News, Memphis, TN - May 28, 2008)

Starting July 1st, Tennessee sex offenders are required to report their e-mail addresses, user names, and screens names to Tennessee’s Sex Offender Registry. Lawmakers created the new requirement for sex offenders during this year’s legislative session in Nashville. Police say the requirement will make it easier for them to spot sex offenders trolling for prey online.

Did you know that Arizona is using GPS devices to track some sex offenders, and they have been doing so since 2006? We didn't either. But apparently they are, costing Arizona taxpayers $180 a month for the tracking devices. If a device enters an "exclusionary zone," a signal is immediately sent to the offender's probation officer. (GPS News Update & GPS Review - June 1, 2008)

In each case, the child molesters are told there are
certain areas where they can't go, Sanders said. If they go into an
"exclusionary zone," the ankle bracelet sounds an alarm and immediately notifies
his probation officer.If the probation officer thinks it's necessary, he or she
can immediately call the police, Sanders said.Exclusionary zones could include
playgrounds, school yards and victims' neighborhoods.

Sex Offender Research blog is preaching to the choir with its recent posting of an academic article from the University of Manchester in the UK. It's key finding on sex offender reintegration into society? It's lacking.

The process of reintegration of offenders after release from prison, or during a community sentence, is a key aim of criminal justice policy. This article provides details from recent research that investigated the barriers and opportunities to employment for sex offenders. The authors describe the barriers that are faced by sex offenders and the anxieties that employers experience when employing sex offenders. The authors conclude that the approach taken by the State is less than reintegrative and serves to increase the barriers and reduce the opportunities for employment for sex offenders.

Why the KIDS Act Is a Bad Idea

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Aren't These the Guys We're Supposed to Trust?

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Jilted High School Ex-Boyfriend Charged with Child Pornography

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Parole Board Revocation Hearing

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Movies- Deliver Us From Evil

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Supreme Court Expands Child Pornography Reach

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GOP Seeks Drinking Law Exception

Today’s New York Times reported that the Republican Party has asked St. Paul, MN, officials to keep the city’s bars open two hours longer than normal, from 2 to 4 AM—for the eleven days preceding, during, and after the September Republican national convention this fall.
Read more from original article: Let’s Par-Tay Till 4 A.M.
This news item appears on this blog because of the author’s experience with holier-than-thou piousness commonly assumed by prosecutors of the Republican persuasion in Bay Area superior courts when talking to the judges about my DUI clients. [Ok, some of these deputy D.A.s are Democrats, but not many.]

Republican hypocrisy among northern CA district attorneys is so blatant in the sex crimes and child porn area of my practice I barely take note. But drinking until almost sunup while taking responsibility for electing the leader of the free world?

The GOP thinks it so important that their delegates be allowed to drink almost all night that they ask the convention host city to make an exception of long-established booze laws during this world-important event?

Time and time again I have heard a deputy DA appearing in my San Francisco, Marin, Alameda, Contra Costa, Sonoma, Napa, San Mateo or Santa Clara county DUI cases go on and on and on about how everyone knows the dangers of drinking and driving.

I realize there are taxis available at 2 AM in St. Paul (there are, aren’t they?), but somehow this news item really grated on me as someone defending DUI cases on a regular basis.

I guarantee you that one or more of those GOP delegates will drive drunk in St. Paul during 2 and 4 AM between September 1 and September 11, 2008, due in part to the exception to the MN law that the GOP has requested.

Most likely no GOP delegate(s) will get stopped for driving drunk (statistically less than .09% of drunk drivers actually do get stopped) but still . . .

Picnic Table Sexually Violated Near Elementary School

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Sexually Violent Predator Avoids Civil Commitment

The California Supreme Court ruled last week that a SVP (sexually violent predator) could avoid civil commitment otherwise required by Welfare & Institutions Code section 6600 et seq. under certain circumstances.

Under People v. Smith (2004) 32 Cal.4th 792, 796-799 (Smith), a person can be civilly committed as a SVP after serving his full prison term if he has been convicted of certain crimes and a jury finds he may engage in sexually violent behavior in the future.

In this case the defendant had been convicted in 1982 of four counts of oral copulation on a child under 14 and one count of sodomy of a child under 14; again, in 1988 he was convicted of 15 counts of committing lewd and lascivious acts on a child under 14.

Seven years later he was released on parole and three years later, in 1998, he completed parole. When he moved away from California to New York the following year he sent a change of address card to the Long Beach police, but it was not received (?!).

Failing to keep California authorities informed led to his arrest in New York and his return to the Golden State for five years in state prison. At this point the Los Angeles D.A. (for the first time) decided the defendant should be placed into civil custody as a SVP when he completed the five years.

However, meanwhile, Smith was appealing the conviction and he won! The Supremes apparently decided the police might have received that change of address card after all, or at least it was a close enough question to make the court wonder if five years in state prison was the appropriate consequence of a mail mishap.

So Smith won—but the D.A. STILL DEMANDED HE BE PUT INTO CIVIL CUSTODY AS A SVP immediately because the D.A. could demand it. By that I mean this: the D.A. “could” because, incredibly, the operative language reads: “An SVP petition shall not be dismissed on the basis of a later judicial or administrative determination that the individual’s custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law.”

In this case our California Supreme Court made a decision that may lack political correctness but it absolutely was the right decision. The court concluded that, despite the above italicized language, it was not going to let the People (the D.A.’s office) twist the meaning of the language into something different than what the legislators must have intended (or what the Supremes thought was fair).

Accordingly, the court held an SVP commitment in this case was not authorized, reversing the Court of Appeal.

San Mateo county child porn official given 16 months

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Wrongful Convictions

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DUI Law: World History of Driving Under the Influence

As a California criminal defense lawyer who has defended DUI cases since the time of Moses, I enjoyed reading Wikipedia's entry for "driving under the influence."

Some items found there and randomly selected include:

* Norway introduced the world's first "per se" law in 1936. All 50 states in this country subsequently followed Norway's lead and all now have two categories of DUI offenses: the per se violation based on the amount of alcohol in your system (requiring no other proof of intoxication) and the other drunk driving violation (requiring independent proof, such as the testimony of a police office).

*Turkey has a limit of 0.05 for PASSENGER-LESS COMPACT CARS only; otherwise, it is 0.00% (as in zero).

*In this country California leads the way (of course) in bringing second degree murder charges if there is evidence of reckless indifference to the lives of others.

*Germany takes your license away automatically for one year if found driving with a blood count of 0.08% or higher and takes it away indefinitely if found driving with a blood count of 0.16% or higher--that it, until you pass a rigorous medical-psychological driver assessment test.

Award-winning Teacher with Child Porn Blames Addiction

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Sex Offenders in Church/Safety Plan

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Internet Child Porn Puts Martinez Girls’ Soccer Coach in Federal Prison for 11 years

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Internet Porn War Has Been Won—by the Pornographers

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Rural California DA Joins Sex Sting Bandwagon

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Internet Sexual Predators and Their Victims

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Supremes Rules Convicted Child Sex Abuser May Challenge Conviction

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Child Porn: Feds Arrest Novato School Bus Driver In Courthouse

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Marin's GI Jane DUI Case

The Marin County DA is taking GI Jane back to trial. Army reservist 'G.I. Jane' going back to court

Jane Parkhurst, the Army reservist who inspired the movie, G.I. Jane, ran her Hummer H2 off a West Marin highway and was arrested for a DUI in late 2006. The matter was tried and the jury deadlocked on one count while acquitted on the other.

In California, all DUIs are charged as two counts, one for driving while intoxicating and the other for driving with a BAC of .08% or over. In this case, the jury concluded it could not decide whether or not Ms. Parkhurst was driving drunk, but that she was not driving with an over-the-limit BAC.
The acquittal on the second count might be due to the fact that the jury believed Ms. Parkhurst claim that she did all her drinking after the accident, before being tested!

The Marin DA wants to re-try her on the first count only in that double jeopardy rules out a re-trial on the count for which she was acquitted.

Drunk Driving: An Argument for Lowering Blood Alcohol Concentration (BAC)

The Center for Disease Control and Prevention, a part of the U.S. Department of Health and Human Services, has an interesting study on alcohol-related crash rates involving young drivers
As a criminal defense lawyer with an active DUI practice, I took particular note of the arguments in favor of:
* Lowering the minimum BAC to .05 from .08
* Prompt and longer suspensions of drivers’ licenses, a la the Scandinavian model
* Substantially increasing the number of alcohol check-points

If these arguments are as persuasive to state legislators as they were to me (and that may be the case), the DUI bar has nothing to worry with respect to getting enough business.

The evidence supports two conclusions: 1) the lower the legal BAC, the fewer deaths and injuries; 2) the more onerous the consequences, the fewer deaths and injuries.

Other items I found interesting:
* It is estimated that less than 1% of alcohol-impaired drivers are caught
* Roughly one in four traffic deaths is alcohol-related
* The driver is drunk in more than half of accidents involving deaths of child passengers age 14 or under (as opposed to the other driver)
* Men are twice as likely as women to have a BAC of .08% and higher when killed in an alcohol-related accident
* Young men between 18 and 20 do the most drunk driving per capita of any age group

But here is the big one, at least from my criminal law practice point of view:

- Drivers with BACs over .08% were NINE TIMES more likely to have a DUI on their record than the other non-drinking driver.

As I tell my first-time DUI clients, emphatically and dramatically, if they want to plea: “You have nothing to worry about with this one other than what is going to happen to you the next time. You have to think about what changes you are going to make so you will not get another DUI.”

Six Myths of Internet Sex Crimes

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Novato Youth Arrested for Molestation of 3 Year-Old Girl

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Marin County Drug Case Dropped Due To Detectives' Sexual Advances

The Marin County DA has decided to drop drug charges against a 19 year-old student who complained about a sheriff’s deputy sexually harassing her. Marin Independent Journal: "Drug case dropped; deputy's action blamed"
The student, Sarah Rawlins, was charged with selling drugs to an undercover task force detective on several occasions. Subsequently, a detective, Tyrone Williams, told her if she “cooperated,” her case might get dismissed. She cooperated. Then Officer Williams started bringing her flowers and making sexual advances.
Only days after Ms. Rawlins’ defense attorney filed a motion citing Officer Williams' sexual advances, the DA dropped the case.

This case will prompt legal challenges from other Marin County defendants investigated by Williams. Under California law, the DA must provide defense attorneys with any unfavorable information and that includes personnel information that might cast doubt on a police officer’s credibility.

This is not the first time Marin’s County’s Major Crimes Task Force, a drug unit, has been involved with sex on the job. The last time, the accuser took away $300,000 in damages from the Sheriff’s office—following accusations of improper sexual advances.

Federal Child-Pornography Charges Following Internet Slave/Radio Talk Show Host/Former Catholic Priest Obeying Commands of Internet Dominatrix

Charges filed against radio talk show host Bernie Ward resulted from his obeying the dominatrix’ command to, “Send me some [pictures]; why haven’t I gotten any pics, slave?” Judge unseals indictment against Bernie Ward
In response, the popular talk show host promptly obeyed with a picture of a naked boy sitting between a topless woman and a clothed young girl. This picture prompted the dominatrix to contact the Oakdale, CA. police, telling them that the former priest had also emailed her messages about group sex at a San Mateo porn theater.

The Oakdale police contacted the FBI and a federal grand jury indicted Ward on two counts of possessing and distributing child pornography using the Internet.

Ward’s business attorney, Jeannette Boudreau, said, “The authorities have been in possession of these messages for three years. Bernie was only just indicted in December [2007]. There is no doubt in my mind that they would have allowed Bernie to conduct his family and work life as usual for all that time if they believed the content of the messages to be factual.”

This is just another illustration that you are completely, 100% exposing yourself to any possible claim on the Internet. Remember, when it comes to child porn and the Internet you do not have the same rights and privileges under the law as defendants do for other crimes.

Sex Offenders Prohibited from Florida City Parks

I just learned of another over-the-top law affecting those deemed to be sexual predators, this time an ordinance approved on February 12, 2008 by the Fort Walton Beach, Florida, city council.

The ordinance makes it illegal for registered offenders to attend cultural affairs, recreation centers, and city parks within the city limits; they may no longer enter such facilities as the Indian Temple Museum or the Tennis Center.

This ordinance was written after a stricter law discussed in 2007 was deemed unenforceable by the police; it would have make it illegal to live within 2000 ft of “wherever children gather”—usually something of a moving target.

One city council member summed up the council’s attitude: “The other benefit of the public realizing these are predator-free areas is just as important as he predator not being there at all.”

My take on this?

Florida state law is more than sufficiently draconian already.

For just one reference to all the reasons such legislation is counter-productive (aside from being mean-spirited), see “No Easy Answers: Sex Offender Laws in the U.S.”—published by Human Rights Watch in September 2007. I refer you to the following language from that study:
“Laws aimed at people convicted of sex offenses may not protect children from sex crimes but do lead to harassment, ostracism and even violence against [them]; politicians didn’t do their homework before enacting these sex offender laws. Instead, they have perpetuated myths about sex offenders and failed to deal with the complex realities of sexual violence.”