Sex offenders: civil commitment and sentences

The U.S. Fourth Circuit Court of Appeals held last week that a federal law permitting indefinite commitment of federal prisoners deemed "sexually dangerous" after completion of their sentences is unconstitutional. The appeals court based its ruling not on the individual right to personal liberty and due process but on limits on Congress's enumerated powers (PDF). The court said that civil commitment is traditionally the province of the states, and that Congress's limited powers do not extend to general violent crime prevention. This case may well go to the Supreme Court and set a new precedent regarding the scope of federal government authority. If the law is ultimately upheld on this ground, however, it will still be subject to challenge on other grounds. The trial court found that it violated the Due Process Clause because it is much broader than state commitment laws.

Meanwhile, the Sixth Circuit upheld a 17 1/2-year sentence for possessing child pornography, leading one judge to dissent (PDF):

Our "social revulsion" against these "misfits" downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts. Some trial and appellate judges are sending these mentally ill defendants ...to federal prison for very long sentences. But the 17-1/2 year sentence for [the defendant in this case] may be the longest yet. He is a 65-year-old, psychologically disabled, former minister with Type 1 diabetes with many complications. How could this sentence be "not greater than necessary" to punish this crime?

The judge referred to an article last October in the Wall Street Journal, which reported: "Societal Revulsion at Child-Pornography Consumers Has Led to Stiff Prison Sentences -- and Caused Some Judges to Rebel."

H/t How Appealing.

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."

Prison censorship (Kansas edition)

The Kansas Court of Appeals recently rejected a prisoner's challenge to the state's refusal to allow inmates access to sexually explicit materials. Washington v. Werholtz. 2008 WL 4998689. This is hardly big news - prisons are uniformly very restrictive of such material, and courts have upheld such restrictions - but the case provides an interesting illustration of how these policies work and are justified.

The Kansas regulation prohibits all "sexually explicit" material, define thus:

"The material shall be considered sexually explicit if the purpose of the material is sexual arousal or gratification and the material meets either of the following conditions: ...
(2) Contains any display, actual or simulated, or description of any of the following: (A) Sexual intercourse or sodomy...(B) masturbation..."

So, not only visual depictions of nudity or sex are banned, but also any prose that describes sex if its purpose is deemed to be titillating. Several books that Mr. Washington ordered were censored as sexually explicit: Slave Girl by Claire Thompson, a smutty novel about consensual dominance and submission within marriage; Yearbook Lingerie 2004: Objects of Desire by Elodie Pivateau, apparently a serious fashion photo book; The Lapdancer by Juliana Beasley, a serious if apparently explicit book of photojournalism by an art student-cum-stripper; How to Make Love Like a Porn Star by Jenna Jameson, the superstar's lurid and "cautionary" memoir; The Sexual Life of Catherine M. by Catherine Millet, the noted French art critic's shockingly graphic and introspective memoir; and The Bride Stripped Bare by Nikki Gemelli, an acclaimed and bestselling British novel, originally published anonymously.

Of these, my guess is that only the first can fairly be said to be intended primarily for sexual gratification; the rest are more or less "serious" literary or nonfiction books, though no doubt possessed of a substantial titillation factor for men in prison. It appears the state's own policy wasn't being followed, as I was able to make these calls with some confidence with a quick Amazon check. The folks in the prison mail room could no doubt make similar judgments just as quickly. Still, the court rejected arguments that prison officials should be ordered to give more careful consideration to possible "explicitly" books, saying this would be too burdensome.

The court's justifications for the policy are twofold: (1) any sexually explicit material in the prison is likely to fall into the hands of sex offenders, and it's dangerous for sex offenders to read it, and (2) sexually explicit material encourages and becomes a tool of sexual harassment of corrections officers. Now, the standard here is "legitimate penological justification" - it's a low bar, scarcely more than rational-basis review. But the court does seem to take it as self-evident that sexual material of all kinds must be kept out of the hands of sex offenders - logic that I've previously opined is deeply suspect. The sexual-harassment rationale seems less flimsy, at least as applied to photographic or illustrated material, but I'm not sure the argument is as strong that explicit prose will facilitate harassment of prison staff.

Sex offender laws limited in Georgia, California

The Georgia Supreme Court, on a 6-1 vote, overturned a sentence of life imprisonment for failing to properly register as a sex offender (PDF). The court emphasized that failure to register is a "passive," nonviolent offensive, and that it is wholly disproportionate to sentence a man to life for failure to register, when the crime that got him on the registry had only a five-year sentence. The court noted that all other crimes meriting this sentence are far more violent and disruptive of society, and that other violent crimes merited lesser sentences than this. In a brief concurrence, one justice noted that: "Some people even believe that rotting in prison for life is more torturous and inhumane than a quick and instantaneous death."

Meanwhile, a California appeals court overturned a lower court's order that a man convicted of assault, but acquitted of any sex offense, register as a sex offender (PDF). The trial judge said it was not clear why the jury acquitted the man on the sex offense charges, but that he was still a danger to the public. The appeals court held that registration is a punishment, and accordingly can only be based on facts and convictions determined by a jury.

In California, sex offender registration comes with a strict residency restriction that can exclude individuals from entire neighborhoods and even entire cities. The intermediate appeals court did not invalidate any part of the voter-approved law under which the defendant was sentenced, but held that sex offender registration, far from being merely a public safety measure, constitutes "traditional banishment under a different name." The state supreme court is now considering a case directly challenging the constitutionality of what's known as Jessica's Law. The SF Chronicle covers these cases here.

H/t How Appealing.

When do sex-related crimes merit deportation?

This is a question that federal appellate judges - particularly the Ninth Circuit - are nowadays called upon to decide with some frequency. One such decision came yesterday in Estrada-Espinoza v. Mukasey (PDF), with the Ninth Circuit ruling that a Mexican citizen's statutory rape conviction did not constitute "sexual abuse of a minor" that, under federal law, merits deportation. Estrada-Espinoza had a cohabiting relationship with a 16-year-old when he was 20, and was convicted of statutory rape. A panel of three judges concluded that deportation was proper, following an earlier ruling that convictions under California's statutory rape law categorically constituted "sexual abuse of a minor."

A panel of eleventh judges unanimously reversed, saying: "We and our sister circuits have been careful on other occasions to distinguish laws governing the sexual behavior of younger teenagers from those governing the behavior of 16- and 17-year-olds." Indeed, the court's opinion canvases similar cases across the country in recent years, which on the whole suggest increasing sensitivity to a distinctions between abuse of younger teens and consensual relationships with older teens.

In sum, we conclude that convictions under [California's statutory rape laws] do not categorically constitute “sexual abuse of a minor.” This conclusion becomes even more apparent when we reconsider the facts of this case. There is no suggestion of abuse in any form. The couple had a relationship, approved by both parents, and lived together in the home of the petitioner’s parents. They had a child together, ultimately moved into a separate residence, and [the Defendant] worked to support this family. If they had solemnized their relationship by marriage, no prosecution would have been possible under § 261.5(c).

A Ninth Circuit panel reached a similar result in a case last year, though that case involved a larger age gap. The court drew a distinction between and malum in se sex offenses (inherently harmful and wrong) malum prohibitum sex offenses (statutorily prohibited but not inherently wrong). Since there were few facts in the record, the court resort to hypothetical:

In other words, among the range of conduct criminalized by [the California statute for statutory rape with a five-year age gap], would be consensual intercourse between a 21-year-old (possibly a college sophomore) and a minor who is 15 years, 11 months (possibly a high school junior). That relationship may very well have begun when the older of the two was a high school senior and the younger a high school freshman and have continued monogamously without intercourse for two to three years before the offending event. On its face, such behavior may be unwise and socially unacceptable to many, but it is not “inherently base, vile, or depraved,” or accompanied by a “vicious motive or corrupt mind." Nor is it “so far contrary to the moral law” as to “give rise to moral outrage.” In short, the conduct discussed does not meet the first Fernandez-Ruiz requirement of being an “act of baseness or depravity contrary to accepted moral standards.”

This reasoning makes sense to me; it is, essentially, a recognition of the important difference between statutory rape and actual rape. We allow an age difference to stand in, as it were, for lack of consent because we feel that such relationships are risky, unwise, and on the whole should be discouraged. But few of us really believe that these are the same thing, equally meriting the extremely strong medicine of deportation.

Keeping sexual material away from sex offenders (2 of 2)

Continued from yesteday's discussion of State v. Bahl:

Bahl was convicted of rape and burglary, and his sentence included community custody for life, with the following conditions:

1. Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer (CCO).
2. Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising CCO and therapist except as provided for therapeutic purposes.
3. Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.

(The "except as provided for therapeutic purposes" is a nice touch. One imagines the corrections officer providing a copy of The Joy of Sex to teach the offneder about healthy sexuality, or perhaps a masturbation device to sate his lustful urges. Not likely, though.)

The Washington State Supreme Court ruled that the pornography and "sexual stimulus material" conditions were unconstitutionally vague, and must be revised. It noted that several other courts have invalidated conditions prohibiting "pornography," on the ground that the term has no clear meaning; it is, said the court, "entirely subject" and "inherently vague." It could include anything from Playboy to the works of the Renaissance masters. To make matters worse, the CCO has unfettered discretion to "direct" what is included. Ironically, the court contrasted "pornography" to the narrower "obscenity," which (supposedly) has a "precise legal definition."

Bahl argued that the term "sexual stimulus material" in the second condition is similarly vague, and that it too improperly delegates authority to define the term to the CCO and therapist. The court did not explicitly agree or disagree, but instead said that it was too vague because Bahl has not been diagnosed with any "deviancy" and thus could not know what material might be thought to stimulate his "particular deviancy."

The court found the adult business condition permissible, reasoning that it was a flat ban on visiting "adult bookstores, adult dance clubs, and the like." Unlike "pornography," there is a state statute specifically defining what is "sexually explicit." One judge disagreed, saying it was not clear whether Bahl was prohibited from "shopping for lingerie at the local mall," "perusing a collection of Playboy magazines," or "attending a Karen Finley performance."

The court did not say what might be permissible on resentencing, though one judge opined that it would be okay to substitute "sexually explicit material" for "pornography." The court appeared to implicitly accept that imposing broad restrictions on a released offender's access to sexual materials was permissible, so long as the limitations are clearly defined.

Notably, though, the court did not discuss how far the meaning of "establishments whose primary business pertains to sexually explicit or erotic material" could reach. Can a telephone or Internet service be such an "establishment"? If applied to the Internet, would it sweep in such diverse things as porn and cam sites, "adult" dating sites, and sites providing explicit information about safer sex and sexual health?

Keeping sexual material away from sex offenders (1 of 2)

Nowadays it is common to impose conditions of release on sex offenders that place broad limitations on their access to sexually explicit materials. Here are some conditions of community custody imposed on a Washington state man convicted of rape:

1. Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer (CCO).
2. Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising CCO and therapist except as provided for therapeutic purposes.
3. Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.

The logic of these conditions is, in my view, deeply suspect. They appear to rest on the unproven assumption that - as stated by one justice of the Washington Supreme Court - the offender "has difficulty controlling himself when he is sexually stimulated," and therefore viewing sexually explicit materials will lead the offender to commit further offenses.

Veterans and students of the feminist sex wars will recognize this as a version of the old canard, "Pornography is the theory, rape is the practice." It has long been argued, by those who favor subjecting to pornography to legal prohibition and/or strengthened social stigmatization, that (strong thesis) pornography cultivates violent sexual impulses and thereby creates rapists, or at least (weak thesis) that it feeds the impulses of those predisposed to commit sex crimes. Many have chronicled the history of these debates; suffice to say that neither thesis is supported by the evidence of social science (e.g., here). Given that this logic has been rejected by courts and legislatures as a basis for restricting access to pornography and adult businesses by the public at large, it makes little sense to impose such restrictions on


Yet in the context of the current social panic around sex offenders, applying this logic to conditions of release goes virtually unquestioned. Moreover, a lack of empirical support is probably not sufficient for render these conditions constitutionally suspect, given the lenient "reasonableness" standard usually applied to conditions of release.

On the other hand, claims that conditions of this nature are overly vague have been successful. Thus, in State v. Bahl, Washington's high court ruled that two of the above three conditions were unconstitutional because they were too vague. Tomorrow I'll discuss this case in detail.

Iowa: Exposure, but not indecent

Iowa's highest court overturned an indecent exposure conviction last Friday in State v. Isaac (PDF), based on a strict reading of a narrowly worded state law. It's a strange tale that exposes the odd intricacies of indecent exposure laws, the possibly perverted workings of the judicial mind, and the question: why is this case before a state supreme court, by golly?


Residents of an apartment building in Ankeny, IA complained of a man talking lewdly outside their windows - but they didn't look outside. When a police officer arrived, he called out to Isaac, who turned to face him, then made a quickly aborted retreat, all before putting away his baby-oiled penis. Under Iowa law, indecent exposure is exposing your "genitals or pubes" to another person, with the intent to arouse or satisfy the sexual desires of either party, if you (ought to) know this will be offensive. Unless it's your spouse. Expose your pubes to your spouse all you like, even if they can't stand it. And yes, that statute says "pubes" - classy folks, Iowa lawmakers.

But back to Isaac: It was a classic case of the "concurrence" problem in criminal law: the defendant committed the requisite act and had the requisite intent, but not at the same time or toward the same person. It was pretty clear that what he was originally up to outside those windows was sexual in purpose - but the court said there were no facts to show his exposure to the officer was anything but inadvertant. (Isaac didn't contest whether the "offensive" part.) Saith the court, Isaac's sexual motivations apparently "evaporated" in the glare of the Law, leaving him simply panicking. Ergo, the crime never occured.

Two dissenting judges had a very different view:

The majority analyzes the facts through the lens of a reasonable person unaffected by the prurient thoughts and desires of a sexually deviant person. In doing so, it forecloses any possibility that someone who would engage in such behavior could also derive sexual gratification from exposing himself to a police officer and running from a pursuing officer with his penis protruding from his pants. Yet, the actions of Isaac in this case were not those of a reasonable person, but a person with a sexually perverted mind....It is a fundamental tenet of law enforcement investigation that it is sometimes necessary to think like a criminal to catch a criminal.

And it's about time to apply that adage to judging. Let's get creative, folks: anything could've turned this weirdo on!! Gee, three guesses which way these two judges are going to vote in the pending Iowa same-sex marriage case.

Naturally, the prosecutor wants the law changed to close this loophole. (Gotta love Iowa: the local paper is called the Nonpareil!) Here's hoping they don't overcorrect and make it sex crime for the desperate to piss in alleyways. Yes, indecent exposure is a crime requiring sex offender registration, which is presumably why Mr. Isaac was determined enough to fight this relatively minor conviction all the way.

And don't worry: he was also convicted of harassment and interference with official acts - which goes to show you that when prosecutors push an expansive interpretation of the law, they oftentimes could simply be content to focus on more appropriate charges.

H/t to How Appealing.