Wednesday, December 31, 2008

More sex offender rulings from California, NY

Recently I reported that the Georgia Supreme Court overturned a life sentence for failure to register as a sex offender. Now comes a similar ruling from the U.S. Ninth Circuit Court of Appeals (PDF), which holds that a sentence of 28 years to life, pursuant to California's "Three Strikes" law, is an unconstitutionally excessive punishment for the offensive of failure to update sex offender registration. As in Georgia, and in a previous California state court ruling, the court reasoned that a life sentence is grossly disproportionate because of the "passive," "technical" and of course nonviolent nature of the crime of failure to update registration. In this case, the defendant already was registered and had not moved, so his failure to update his registration didn't even lead to incorrect or missing information in the database.

As the Sentencing Law and Policy Blog notes, the fact that this ruling, unlike previous ones, comes from a federal appeals court is a big deal. Indeed, it may be the first time a federal appeals court has overturned a non-capital state sentence in recent memory, in part because the federal Anti-Terrorism and Effective Death Penalty Act mandates an extremely deferential review of state court judgements. Even more remarkably, the decision is authored by controversial Bush appointee Jay Bybee (yes, the nominal author, along with John Yoo, of the infamous detainee interrogation memos).

Meanwhile in New York, the state appellate court held that a lawyer's conviction of a sex offense doesn't merit disbarment, at least where that offense consisted of having explicit online chats with an adult posing as a minor and attempting to meet said minor, rather than any actual sexual act. The court reasoned that a public reprimand would be too lenient, but thatgiven the "inchoate" nature of the offense disbarment would be too severe. The court ordered the lawyer's suspension from the practice, over a dissent calling for disbarment and accusing the majority of "minimizing the acute danger of sexual predators."

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