View the article here
LAS VEGAS -- A federal judge on Monday ordered a last-minute delay to enforcement of a Nevada state sex crime classification law, saying he wants time to consider constitutional challenges before it goes into effect.
U.S. District Court Judge James Mahan said he was concerned that if the state law went into effect as planned on Tuesday, and convicted low-level sex offenders are publicly identified as top-level Tier III offenders, there would be no way to "restore their privacy" if the law is found to be flawed.
"It seems to me that it's a matter of due process and ... fairness," Mahan said as he granted an immediate preliminary injunction to the American Civil Liberties Union of Nevada. "The appropriate thing to do is grant the (delay) and give everyone a chance to sort this out."
Lawyers representing Attorney General Catherine Cortez Masto (Contact), state police officials, the Clark County and Washoe County sheriffs and police chiefs of Henderson and North Las Vegas protested that they weren't properly served with the lawsuit and weren't given required notice about Monday's hearing.
Binu Palal, a deputy Nevada state attorney general, argued that Mahan was "frustrating the will of the people" and rewarding the ACLU for waiting until last Tuesday to file suit on behalf of 12 unnamed plaintiffs against a law that the state Legislature passed last year.
- And Binu Palal is an idiot and not defending the constitution like he/she took an oath to do.
Mahan acknowledged Palal's argument, and said law enforcers in Las Vegas, Reno and statewide had a right to a quick decision in the case. He set an accelerated schedule leading to a hearing on Aug. 26.
That will be three days before an Aug. 29 hearing by a Nevada state judge who last Thursday instructed Clark County authorities to hold off on enforcing the law until he could hear a separate constitutional challenge.
"What are our law enforcement officers supposed to do?" asked Nick Crosby, a Las Vegas lawyer representing the Las Vegas Metropolitan Police Department.
- Just carry on like they have been, why is that so difficult to understand?
Mahan said current state sex offender laws would remain in effect while he considers the ACLU challenge.
ACLU lawyer Margaret McLetchie told Mahan that the state court case, filed on behalf of two convicted sex offenders, was more narrow in scope than the federal challenge filed by the ACLU.
Both lawsuits challenge the state law, Assembly Bill 579, which reclassifies thousands of sex offenders according to the type of crime for which they were convicted, instead of their risk of re-offending.
The law put Nevada in line with federal legislation passed in 2006 calling on states to categorize sex offenders in the same way.
Las Vegas lawyer Robert Langford, representing seven plaintiffs in the federal case, said his clients didn't receive notice about how the law would affect them until May.
Langford said the measure will dramatically increase the number of top-tier sex offenders in the state, from fewer than 140 to more than 2,000, and stretch the ability of police to list, track and enforce stricter regulations on where offenders can live, work and play.
- More ways for them to heighten the fear factor!
"This is a radical and drastic change in how we handle registered sex offenders," Langford said outside court.
McLetchie said the ACLU also was concerned that expanding the list of Tier III sex offenders and posting names on the Internet could put low-risk offenders and their families in danger of threats and violence.
- I agree, but any violence against ANY tier level sex offender should be wrong, period, but this sounds like you are saying it's ok for some but not others.
Monday, June 30, 2008
View the article here
View the article here | Video
Louisiana does a poor job when it comes to monitoring sex offenders, according to a legislative audit. The audit says the state cannot make sure sex offenders are properly registered and also that there is doubt the state's registry is even complete.
View the article here | Video
I know I'll catch hell for this, but we need to stop letting victims and victims families make laws and name laws in a childs name. Anybody who is a victim of a crime is going to want the WORST for that person. And if it were up to the victim, they'd have them killed. So we need to put the descretion back into the hands of the people we elect to represent us, and let the judge's decide. If we don't do this, we might as well go back in time a couple hundred years.
WICHITA – Tuesday will mark the second anniversary of Jessica’s Law taking affect in Kansas.
The law mandates a minimum prison sentence of 25 years for first-time sex offenders when the victim is a child, a second offense means a mandatory 40 year prison sentence and a third results in life without parole. But it isn’t working the way everyone had intended.
Twenty-five-year-old Patrick Naputi was convicted of fondling nine boys while he worked at their Maize school. It was a crime that seemed tailor-made for Jessica’s Law signed by the governor two years ago allowing for 25 year sentenced on first-time sex offenses. Instead, Naputi was given just over 10 years.
"I'm not happy about it,” said Donna Roberts who pushed for Jessica’s Law.
Robert’s lobbied for Jessica’s Law because her daughter was a victim of a sex offender when she was a child. She and others are upset because the law allows judges to grant downward departures. In other words, the 25 year sentence is not mandatory. Instead, a judge can sentence the offender to less time for a variety of reasons including no prior criminal history.
In Naputi’s case his age, lack of criminal history and no physical injuries to the victims were factors in his reduced sentence.
"Why do we have these laws if we're not going to make them tough laws where there's no loopholes,” Roberts said.
"Jessica's law does have its problems it really and truly does,” said Sedgwick County District Judge Rebecca Pilshaw.
Judge Pilshaw and other legal officials understand the concern from victims, but say the law itself is flawed. Its iron-fist approach is clogging the court system with cases once handled in other ways – sometimes to protect victims.
"The over-arching affect of Jessica's law is more trials, more hearings, more preliminary hearings, more kids taking the stand,” said Deputy District Attorney Marc Bennett. “I'm sure proponents of the bill would say that's our job and we accept that. But there is a detriment to the kids when they have to go through these hearings."
Bennett admits the downward departures can be frustrating for prosecutors. As for giving judges leeway through sentencing, Pilshaw says it’s the right thing to do.
"It is very important that judges do not become robots that are guided by a statutory set of numbers that don't take into account the victim and don't take into account the defendant,” Pilshaw said.
Still, those pushing for more say battle lines have to be drawn with sex offenders. The issue now is how to put pressure on those offenders and not the legal system itself.
- Damn, I think you've put a load of pressure on sex offenders, almost to the point of suffocation!
Sedgwick is not the only Kansas county struggling with Jessica’s Law. A Shawnee County judge is under fire by the D.A.’s office for departing from sentencing guidelines when he handed down shorter sentences in two child sex cases just last week.
View the article here
I would love to know how to tell how many of these people have stocks and bonds in the GPS market? I am willing to bet there is quite a bit.
06/30/2008 RALEIGH - The state Senate gave its initial approval tonight to a bill that would require adults who molest children to submit to GPS monitoring for life.
- So who is going to pay for all this? Hopefully the tax payers, they are the ones who wanted these laws. And I'm sure, those who have stock in the GPS market, will love you for it. Income for the rest of their lives.
The bill, introduced by Sen. David Hoyle (Email) of Gaston County passed on a 45-0 vote.
"It strengthens our GPS monitoring," Hoyle told his Senate colleagues. "It was modeled after the law that passed in Florida after the Jessica Lunsford incident."
The bill is intended to supplement the proposed Jessica Lunsford Act, which would require adults who rape children to be sentenced to a minimum of 25 years in prison and submit to lifetime GPS monitoring. Versions of that bill have passed both chambers of the General Assembly. The bill is now in a House committee.
Jessica Lunsford, who was born in Gaston County, was kidnapped, raped and murdered in Florida by a sexual predator in February 2005. She was 9 years old.
John Couey, a registered sex offender, was convicted and sentenced to die for the crimes. Police had lost track of Couey, who was staying with his sister and living in the same neighborhood as Jessica at the time.
- And he begged and begged for treatment, which the state did not give him, and do you really think a serious predator is going to just accept GPS? If he/she is intent on committing another crime, they will do what all the others have done, cut it off and vanish. This is just a waste of money.
The GPS monitoring bill for molestation also includes a provision that would make it a misdemeanor to tamper with a GPS device. The GPS monitoring requirement would be retroactive and would apply to offenders committing crimes after Aug. 16, 2006.
Sen. Ellie Kinnaird (Email) of Orange County said she had some qualms about the retroactivity of the law and asked fellow senators to hold off on a final vote.
A final Senate vote is expected Tuesday.
Barry Smith can be reached at email@example.com.
View the article here
By Jamie Fellner, US program director at Human Rights Watch
For years, the United States has held the dubious distinction of incarcerating more people and at a higher rate than any other peacetime nation in the world. Yet its appalling addiction to incarceration continues. According to statistics released today by the federal Bureau of Justice Statistics (Prisoners in 2005), the number of US residents behind bars has now reached more than 2.3 million. The rate of incarceration has risen to 491 sentenced inmates per 100,000 US residents, up from 411 a decade ago. Four states – Louisiana, Texas, Mississippi and Oklahoma – have incarceration rates of more than 650 per 100,000, with Louisiana soaring above all other states with the astonishing rate of 797.
With violent crime rates continuing their decade-long decline, the United States should be able to reduce its prison population. But the still-growing number of men and women behind bars attests to criminal justice policies – including mandatory minimum sentences, three strikes laws, and reduced options for parole – that favor incarceration over alternative sanctions, even for low-level and nonviolent crimes. According to the Bureau of Justice Statistics (BJS) data, 53 percent of all state and federal prisoners are incarcerated for nonviolent crimes. Indeed, an estimated 337,872 men and women are serving state or federal prison sentences because of drug convictions, most of whom are low-level offenders. .
Human Rights Watch believes the extraordinary rate of incarceration in the United States wreaks havoc on individuals, families and communities, and saps the strength of the nation as a whole. Prison is a legitimate criminal sanction – but it should be used sensibly, justly and parsimoniously, with due regard for the principles of proportionality and respect for human dignity required by international human rights principles. The direct and collateral consequences of imprisonment may be acceptable when violent offenders are put behind bars, but they are hard to justify for nonviolent low-level offenders.
The latest BJS data also reveal that the burdens of incarceration continue to fall disproportionately on blacks and Hispanics, who constitute some 60 percent of all state and federal prisoners, although only 27.4 percent of the US adult population. The rate of incarceration of black men (3,145 in 100,00) is more than 6.6 times that of white men (471); for Hispanic men, the rate (1,244) is two and a half times greater than for white men.
The “war on drugs” with its misguided and futile reliance on punitive measures to lower illegal drug use plays a major role in this racial disparity. Although in absolute numbers there are more white drug offenders than there are black, (see Human Rights Watch’s report, “Punishment and Prejudice: Racial Disparities in the War on Drugs”) the BJS data indicate that there are more than twice as many blacks (133,100) serving prison sentences for drug offenses than whites (64,800). The war on drugs also accounts for the growing number of women being sent to prison. An estimated three out of every 10 women serving sentences of one year or more have been convicted of drug offenses, compared to two in every 10 men.
Human Rights Watch urges US political leaders and the public to reassess the costs and benefits of relying heavily on incarceration to address nonviolent offenses, especially drug offenses. The extraordinary number of nonviolent offenders in prison bespeaks a nation determined to “send a message” about drugs and crime, regardless of whether prison is ineffective, cruel or unduly costly compared to other ways of responding to nonviolent offenses. Particularly with regard to drugs, it may be that the human, social and economic costs of the prison “cure” are worse than the “disease” itself. The states and the federal government should dismantle mandatory sentencing laws, restore judicial discretion in sentencing, increase the use of alternatives to incarceration, and devote more resources to drug- and alcohol-abuse treatment.
View the article here
ATLANTA - Defense attorneys are trying to topple Georgia's tough sex offender law, saying it amounts to "cruel and unusual punishment" because it's by far the nation's toughest.
The critics asked the Georgia Supreme Court on Monday to declare the law's penalties unconstitutional, and they've targeted a measure that requires an automatic life prison sentence for sex offenders who twice fail to register.
Their argument focuses on the case of Cedric Bradshaw, a 25-year-old who was arrested for failing to register as an offender after he spent weeks trying to find a place that didn't violate the law's residential restrictions.
When Bradshaw was arrested in 2007, it was the second time he failed to register as a sex offender in Georgia. He was sentenced to the only punishment allowed by law: life in prison.
The measure is "grossly disproportionate" because Georgia is the only state in the nation that imposes a life prison sentence for failing to register, said Robert Persse, a public defender who is Bradshaw's attorney.
"In some cases, if he harmed someone or killed someone, he could receive a far lesser sentence," said Persse, who said that sentences for armed robbery range from 10 years to life.
Prosecutors say they were following the letter of the law. And that law was the will of state legislators, said Scott Brannen, an assistant district attorney in Statesboro.
He downplayed the life sentence, noting that Bradshaw could still be eligible for parole in seven years. And he said Bradshaw deserved to be punished for his crimes.
"He knew the consequences, and nonetheless he goes out and deceives the state again," he said.
It's the latest clash over Georgia's sex offender law, which sponsors declared one of the toughest in the nation when it was adopted in 2006.
The measure bans sex offenders from living, working or loitering within 1,000 feet of just about anywhere children gather. That includes schools, churches, parks, gyms, swimming pools or one of the state's 150,000 school bus stops.
It also increased the maximum sentence for a second failure to register from a maximum of three years in prison to a mandatory life sentence. The change applies to all sex offenders, from child predators to those convicted of statutory rape.
Several pending challenges take aim at the law's residency restrictions, including separate lawsuits that target provisions that would evict offenders who live near churches and school bus stops. But the Bradshaw case is among a new breed that focuses on the one-size-fits-all nature of the law's criminal penalties.
Bradshaw was convicted of statutory rape in 2001. Five years later he was slapped with 10 years of probation because he didn't register his address with the state.
After he was released from prison on related charges in August 2007, Bradshaw moved twice because he was violating the law's residency requirements.
Bradshaw's next move put him squarely in the crosshairs of authorities: He registered at a family friend's address, but instead moved in with a girlfriend. He was arrested 12 days later and sentenced to life in prison.
- Yes, he's an idiot for doing this, but, life in prison is, like the lawyers said, cruel and unusual punishment and doesn't fit the crime.
To Persse, Bradshaw was a victim of the fear surrounding sex offenders that borders on "hysteria." He asked the court to remember the words on Georgia's state seal: Wisdom, Justice and Moderation.
"This penalty is not wise," he said, "it's not just and it's anything but moderate."
View the article here
So this is basically saying that banishment from the entire state is ok. Next they will be assigning which county each RSO can live in. I wonder how many places in this one county he can live and work? And when he loses his job, and the neighbors raise hell and make him move, then he will be banished from the entire state, THEN THE LAWS MUST CRUMBLE!!!!
ATLANTA (AP) -- Faced with the question of whether banishment for criminals in Georgia should be banned, the state's top court answered Monday with its own caveat: It depends on how far the ban extends.
The Georgia Supreme Court acknowledged with its 6-1 decision that banishing convicted criminals from the state is illegal, but it upheld a tactic by judges who ban them from living in all but one of Georgia's 159 counties.
That's what happened to Gregory Mac Terry, who was restricted from living everywhere in Georgia except rural Toombs County after he pleaded guilty in 1995 to charges he assaulted and stalked his estranged wife.
Defense attorneys call the strategy "de facto" banishment. Prosecutors say the orders are a way to rid criminals from populated areas and protect victims from repeat offenses. In Terry's case, they said, the restrictions are needed to protect his wife.
Writing for the majority, Justice Harris Hines said judges can legally skirt the ban on banishment when they restrict convicts like Terry from all but one county.
"It was Terry whose movements had to be curtailed, not hers, and a scheme that allowed her to move freely about most of the state without fear of Terry was appropriate," the opinion read.
Chief Justice Leah Ward Sears said the judge's decision to allow Terry in Toombs County when he is released was "an act of grace and mercy."
- Give me a friggin' break! This shows it's punishment, period!
The lone dissenter, Justice Robert Benham, said Terry will be forced to leave the state because he has no ties to Toombs County, which has 27,000 people in the southeastern part of the state. He concluded that the sentence "in fact results in de facto banishment from our state which is unconstitutional."
- Well, if this occurs, then the idiot Jerry Keen has won. He stated before:
"We don't want these types of people staying in our state"
"We want those people running away from Georgia. Given the toughest laws here, we think a lot of people could move to another state. If it becomes too onerous and too inconvenient, they just may want to live somewhere else. And I don't care where, just as long as it is not in Georgia . Candidly, Senators, they will in many cases have to move to another state."
"Legislators were not concerned if the law [HB1059] would turn sex offenders into nomads and force them out of Georgia ."
so his intentions are clear, and this clearly shows these laws ARE PUNISHMENT and not simply restrictions. So therefore they should all be repealed and fixed.
Terry was sentenced to 20 years in prison and 10 more years on probation after he violated a restraining order by sneaking into his estranged wife's home, then forced her into his car and threatened her with scissors.
During his sentencing, a judge added a condition that he be banned from all of Georgia except Toombs County when he was released on probation or parole.
- Why won't a simple restraining order work? That is what they are for, correct? So instead, you banish him to one spot instead of a restraining order. Sounds backwards to me. Also, why wasn't it part of his sentence to not go near her?
The court's decision upheld the banishment sentence while Terry is on probation, but said only the Georgia Board of Pardons and Paroles can set conditions for parole.
Defense attorney McNeill Stokes said the banishment kept Terry in prison longer because he couldn't complete a work-release program in another county. Stokes called the strategy a "throwback to the dark ages."
I recently got an email from someone pointing out this man (IRA BAILEY) who is shown to live in Georgia and is incarcerated in Florida. So which is it? Also, you will notice there are 4 entries on the National Registry in Florida, all with the same address and picture and info, except the name differs. So this shows, the registries are BLOATED with multiple entries for the same person and also deceased people, to increase the FEAR FACTOR.
If you check out the same person in Florida, he's on the registry once. So why does the NATIONAL registry show 5 different entries of the same man? If the information is not accurate, what good is it?
I wonder, if they removed all the duplicates, and the different permutations of addresses like ST and STREET or RD and ROAD, what would this reduce the number of sex offenders down to? I am willing to bet that instead of over 630,000, it would be reduced down to around half or at least 400,000. That is still a lot, but why bloat the registry? For money maybe? Or increased fear factor?
Also, what about all the sex offenders who are now deceased? Why do they leave them on the registry? And they do, there is an article here, which shows this. More fear factor maybe?
Florida is notorious for duplicate info and dead sex offenders remaining on the registry. Over time, it will become a total mess.
In this example, what am I suppose to believe? Is this man living in Georgia or in jail/prison in Florida?
NOTE: This is just ONE of the MANY examples I've seen. Try it yourself. Go to a state registry, and browse through it, and see how many duplicates you find.
View the article here | Another article here
Mandatory sentences: Georgia's Supreme Court will consider proportion.
The judge had only one option when he sentenced Cedric Bradshaw: life in prison.
Bradshaw had not committed murder, rape or armed robbery. His offense was failing to properly register as a convicted sex offender for a second time —- even though he had repeatedly tried to follow the law.
"Mr. Bradshaw, the court could say a lot of things about the law, the wisdom or not of it," Bulloch County Superior Court Judge F. Gates Peed said as he sentenced the 25-year-old Statesboro man on Dec. 20, 2007. But the law calls for a mandatory life sentence, and that's what Bradshaw got.
On Monday, the state's highest court will consider whether the law is unconstitutional on grounds it is cruel and unusual punishment.
No other state calls for a life sentence for failing to register as a sex offender the second time, and even rape and armed robbery convictions in Georgia do not carry mandatory life terms, said Bradshaw's lawyer, Robert L. Persse, the circuit public defender in Statesboro.
"The punishment for a second violation is grossly disproportionate to the offense," Persse said. "That is particularly true when this is essentially a paperwork offense not accompanied by aggravating circumstances like violence, sexual deviance or being out in a schoolyard hunting for children."
The Bulloch DA's office is urging the state Supreme Court to uphold the life term.
"The courts look at the Legislature's intent in determining the best evidence for the appropriateness of the sentence," Assistant District Attorney W. Scott Brannen said. "When they increase it [to a life term], that too is evidence of the intent and the will of the people."
Sen. President pro tem Eric Johnson (R-Savannah) said the law is clear.
- Eric Johnson is an idiot, and a$$holes like him should be fired from office.
"I wish it hadn't happened, but there are consequences for people's actions," said Johnson, a chief sponsor of the offender law. "What would have happened if he had given the wrong address and had lived in a place and was harming a child next door? The law is trying to protect children. Justice has to be blind to motive."
He said Bradshaw had committed "serial stupidity."
- So have you idiots for passing unconstitutional laws, which WILL eventually be shot down because of all the nonsense and money going down the drain to fight these draconian laws.
There is no question Bradshaw committed a colossal blunder. The law, one of the toughest in the nation, makes it clear that failure to properly register as a sex offender the second time brings a mandatory life sentence.
Bradshaw's legal problems started when, shortly after turning 19, he pleaded guilty to enticing a child for indecent purposes. In November 2001, he was sentenced to serve six to eight months in a detention center and five years probation.
But before reporting to the center, Bradshaw was charged with statutory rape for having sex with a 15-year-old girl. He pleaded guilty to that and was sentenced to five years in prison.
After being granted parole in December 2006, Bradshaw gave an invalid address when registering as a sex offender, the first strike against him. In June 2007, he pleaded guilty to the offense and was sentenced to time served —- little more than six months in jail.
After his release, Bradshaw moved in with his sister and registered as a sex offender, listing her address. But deputies soon made him leave because the home was too close to a recreation center.
Bradshaw then moved in with his aunt and correctly put her address on the registry. This time he was told to leave because the home was within 1,000 feet of the First Baptist Church.
Bradshaw began to wonder if he could find a place to live and not be in violation of Georgia's sex-offender registry law, according to court records. But a relative hooked him up with Edgar Moore, a family friend, who said Bradshaw could have the spare bedroom in his single-wide trailer.
Bradshaw registered once more at the Sheriff's Office, but provided the wrong address, inadvertently transposing two of the street numbers.
A sheriff's captain, checking to verify Bradshaw's address, eventually found Moore at his trailer. Moore confirmed that he had invited Bradshaw to live in the spare bedroom. But he said Bradshaw had yet to move in.
Authorities obtained a warrant for Bradshaw's arrest because he had failed to move into the address within the 72 hours required by law.
Bradshaw turned himself in at the Bulloch County jail, where he made another mistake: he lied, saying he had been living in Moore's trailer.
A grand jury indicted Bradshaw for failure to register the second time. Bradshaw waived his right to a jury and, during a one-day trial last December, let Judge Peed decide his fate.
At trial, Bradshaw testified that he had tried to get in touch with Moore. He said he left him messages on his cellphone and dropped by, but Moore was not home. In the meantime, Bradshaw said, he was staying with his girlfriend.
Persse, the public defender, argued that Bradshaw had tried to comply with the law. "If anything, the man tried to do what he was supposed to do, and the statute and its rigid requirements got in his way," he told the judge.
But Brannen, the prosecutor, said the law is on the books and "it's not my place or the court's place to decide what we like and don't like and what we want to enforce or not enforce."
Bradshaw, Brannen said, broke the law by failing to give a valid address within the 72-hour reporting deadline. "There are no exceptions in the law," he said.
Even though he called into question the wisdom of the law, Peed agreed and sentenced Bradshaw to life in prison.
"I'll leave it to the super Legislature, the Supreme Court, to decide the issues of constitutionality," he said.
A hidden room for dark secrets - Sex-abuse victims talk about experiences with counselors in special setting
View the article here
Charlotte's Place doesn't keep its secrets.
In a nondescript building on East Main Street in Torrington, young children tell stories of physical and sexual abuse to a forensic interviewer in a 10-foot square made to look like a family room. In tears, embarrassed, fearful, shy, or shameful, their voices are recorded with equipment sensitive enough to pick up a whisper.
The room is furnished with a pair of blue couches. At one end is a white poster board with Sharpie markers. At the other is a box filled with stuffed dolls made with rudimentary male and female genitalia.
A one-way mirror gives police and prosecutors a chance to watch the interview, and to prompt questions with the interviewer through an ear piece.
Cameras hidden in the wall record the interview.
Jennifer Boden-Gaumer, a child abuse investigation team coordinator, remembers an interview with a 4-year-old girl.
"She covered her face with her hands and said 'oh, no, I wasn't supposed to tell you that,' " she said. "It was obviously genuine, animated and spontaneous, not something she could have made up or otherwise known. There is nothing in their world they can liken this to." The case is pending prosecution.
In another interview, clinical coordinator Joan M. Neveski recognized the moment when a young girl realized that what her father was doing to her wasn't normal.
"It turned this child's world upside down," Neveski said. "You could see the realization in her eyes."
One in four of the criminal cases pending in Litchfield Superior Court involves allegations of sexual abuse against children and young adults. The figure is similar statewide.
Virtually all of the victims are referred for interviews by a member of the Child Abuse Investigation Team of Northwest Connecticut, a 22-member team that operates under the umbrella of Charlotte Hungerford Hospital's Center for Youth and Families. It is one of 18 similar teams created by state statute a decade ago, one for each of the state's 18 judicial districts.
The team's involvement is triggered by a phone call to police, or a referral by a mandated reporter such as a nurse or medical technician. A forensic interview is conducted by a member trained to elicit sensitive memories that can be used to prosecute the offender and define whether medical and psychological counseling is needed. It can be tricky. Some children are difficult to engage while others easily spill bottled up information.
Funding is provided partially through the state's Department of Children and Families and the National Children's Alliance. Members include prosecutors, victim's advocates, police, counselors and a DCF representative.
"It has standardized the process of interviewing children, and enhanced the reliability of the information we are getting," Litchfield County State's Attorney David Shepack said. "Investigating sexual abuse isn't like investigating a bank robbery because it happens in a private place."
Team members include medical experts, police officers, therapists and prosecutors. The idea is to keep secondary traumatization to a minimum by limiting the number of interviews. It puts criminal investigators, prosecutors and counselors on the same page.
"It used to be that we didn't allow 6-year-olds to be believed 25 years ago," Shepack said. "Today that decision is case by case, based on a 1985 law which allows prosecutors to call on witnesses based on the weight and credibility of evidence rather than age."
The youngest children, who have no reason to lie, are often more credible than older children, and can offer details about sexual encounters they could only know from personal experience, Shepack said.
- I am not saying all kids lie, but not all are telling the truth either, like this person seems to believe. Maybe you should read this book, or watch the video below.
The overwhelming majority of perpetrators are known to the victims.
- Yet the media and politicians keep spreading the stranger-danger myths, which is why they pass these draconian residency restrictions for sex offenders. To appease the public. You can force someone 100 miles a way, but most sexual crimes occur in the victims own home.
Half are victimized by someone they know. Another 40 percent are relatives. One in four girls and one in six boys in this country is sexually abused before the age of 18.
"Very seldom is it the guy who steps out from behind the bushes," Shepack said.
- I agree. So why do we continue to pass residency restrictions when strangers are not the problem but people in your own home? Because the public has been told a lie over and over and now they believe it. It's the typical MASS HYSTERIA and MORAL PANIC. Statistics show that most children are abused by their own fathers and mothers than anybody else. So you see, YOU ARE THE PROBLEM, not the stranger...
No one knows whether more children are being abused today than 10 or 20 years ago, or a higher percentage of those cases are being reported.
Anecdotal evidence suggests a greater percentage are being investigated, Danbury State's Attorney Stephen Sedensky III said.
- Yeah, this is obvious. It's because people like John Walsh and Mark Lunsford get on the news and scare the crap out of everyone, and the media and politicians help increase the fear factor. And they continually base all these laws on lies and myths....
Danbury's group is known as a multidisciplinary team and operates under the umbrella of Danbury Hospital and the Danbury Regional Childrens Advocacy Center.
"Each team is as different as the personalities involved," Sedesky said. "The goal is the same to effectively investigate and reduce trauma to the child."
In Waterbury, the team is also known as a Child Abuse Investigation Team.
"It's impossible to measure how effective the team is," said Corinne Klatt, supervisory assistant state's attorney in Waterbury and a team member.
View the article here
Hopefully when he gets out, he can use some of his money to help get these laws fixed? I can dream, can't I? Double standards indeed. He is a millionaire and gets 18 months, and the average poor citizen gets many more years in prison. So it shows you who runs the country, doesn't it.... The rich get richer and the poor get poorer.
Palm Beach Financier Jeffrey Epstein Reported to Jail This Morning
Almost two years after being charged with solicitation, the Palm Beach financier and former friend of President Bill Clinton was booked today after pleading guilty to the charge and an additional charge of procuring a person under the age of 18 for prostitution.
55-year old Jeffrey Epstein, a former math teacher, still faces civil lawsuits that accuse him of sexually assaulting high school students as young as 15 years old.
Epstein was booked and processed this morning, according to the Palm Beach County sheriff's office. He is now at a county jail where he will remain for the next 18 months.
After his jail time, Epstein will be placed under house arrest for one year and will have a lifelong obligation to register as a sex offender, according to a report in the Palm Beach Post. The Post is also reporting that Epstein must submit to an HIV test within 48 hours and that the results will be provided to the victims or their parents.
Epstein's office released this comment earlier today. "Mr. Epstein fully resolved his case this morning in Palm Beach County state court. Mr. Epstein accepted responsibility for the charges, relating to conduct that occurred several years ago. By agreement, he will begin serving his sentence immediately."
Epstein was charged back in July 2006 after a lengthy probe by the Palm Beach police department. Despite only being charged with solicitation at the time, the allegations in the official police affidavit were much more serious and included charges that he repeatedly paid young, and some underage girls, to come to his house, massage him, and on a few occasions have sex with him.
Read the Probable Cause Affidavit Alleging "Unlawful Sexual Activity with a Minor" by Jeffrey Epstein.
Palm Beach Police Chief Michael Reiter was so angered at the time that he sent a letter to the parents of the girls he said he believed were victims of sex crimes saying, "I do not feel that justice has been sufficiently served."
Epstein, once a math teacher at an elite private school in New York, became rich as a financial adviser to the wealthy. His friendship with former President Clinton began after Clinton left office. Epstein lent his private 727 jet to Clinton for his 2002 trip to Africa. Epstein has contributed more than $100,000 to Democratic candidates.
At least four civil suits have been filed against Epstein in relation to the allegations.
View the article here
This is just insane. Everyone is trying to outdo the others. I've seen 100 years, then 200, 300, 400, now this. Hell, why not sentence the man to 1 TRILLION years in prison? Might as well. When someone is given a life sentence, why doesn't life mean life? And if a person must do XX time in prison before being let out, I don't think this is needed. Do you think he's going to find some fountain in prison which makes him immortal or something? Talk about the sentence not fitting the crime, this is a perfect example...
A 44-year-old convicted sex offender facing more than a millenium in prison is set to be sentenced today.
Horace Mann Williams was convicted in February of 11 felony counts of lewd acts upon a child under 14 and one count of digital penetration of a child under 14, along with a sentence-enhancing allegation of multiple victims.
He molested three girls between 1999 and 2005.
The District Attorney's office has concluded that Williams should get 1,330 years to life in prison.
- Why doesn't life mean life anymore? If a life sentence is 12 years, then it's not really a life sentence, now is it. A life sentence should be, you are in jail/prison until you die, period!
Williams spent six years in prison for molestation in the early 1990s.
That conviction would also add to his sentence, said Deputy District Attorney
Williams has filed a motion for a new trial, alleging juror misconduct.
View the article here
Violators would face a misdemeanor charge. County commissioners will vote on Tuesday.
Registered sex offenders would be banned from parks and recreation centers in Mecklenburg County under a proposal being considered by county commissioners on Tuesday.
Earlier this month, the state Supreme Court upheld a similar ordinance in Woodfin, a town near Asheville that in 2005 became the first community in North Carolina to bar sex offenders from parks.
The court case was closely watched by officials across the state, and Mecklenburg commissioner Bill James said the town's win at the Supreme Court prompted him to propose a similar ban here.
“I think it is important to provide the police with as many crime-fighting tools as possible and this is another lawful tool for them to use,” James said last week. “Sex offenders … find vulnerable children next to schools, parks and recreation centers.”
- How many can you name who have done this? I can think of none! So this is typical fear-mongering. 98% or more of all sexual crimes against children, happen in their own home or close family.
Officials in Hickory and Gastonia also are considering ordinances.
Under the Mecklenburg proposal, pitched by James and drafted by the county attorney, sex offenders caught at county parks or recreation centers would be charged with a misdemeanor and face a fine of up to $500 or jail time.
Exceptions would be granted if the person is visiting the park to vote or attend a public meeting.
- Yeah, I guess you need all the votes you can get, so you make an exception here. This is just stranger-danger myth building, and is not helping at all, except maybe to get you votes or something.
If the ordinance is approved by commissioners on Tuesday, it would take effect immediately.
On Sunday, commissioners Karen Bentley and Dan Ramirez said they would support James' proposal. Commissioner Norman Mitchell said he hadn't seen the proposed ordinance yet, but said “How can anyone fight against (a proposal) like that?” Other commissioners couldn't be reached on Sunday.
- Well, none of you are apparently upholding the Constitution which you took an oath to do so, and do not have the balls to say these laws are unconstitutional. Typical politics though!
The Charlotte-Mecklenburg Police Department has lent its support to the ordinance, but it is unclear whether the policy could result in many arrests.
Officials in Woodfin and Morganton, which also has approved a park ban, said they have charged no one under their ordinances. Police in those communities have not increased their patrols to search for offenders, and often rely on residents to report suspicious behavior.
Still, Woodfin Town Administrator Jason Young said he thinks the ordinances serve as a deterrent to sex offenders.
- A deterrent? Nobody commits sex crimes against children at parks, except maybe rapists of women, so this is total propaganda. How many sex offenders can you tell me, who have committed their crime(s) at a park? None!!! So that just helps them, they'll say "See, it is a deterrent, because no crimes are occurring near parks!" The sheeple suck it all up and believe it all. Does the death penalty deter murderers from killing? Or does the "war on drugs" deter any drug dealers or users from selling or using? Nope!
But Katy Parker, legal director for the American Civil Liberties Union of North Carolina, which challenged the Woodfin ordinance in court, said the policies may give a “false sense of security.” Offenses that happen in parks often are committed by people who aren't on the sex offender registry, Parker said.
“I don't think anyone would argue that protecting children is a paramount government interest,” she said. “But what our concern is these laws are sort of a knee-jerk reaction without a lot of investigation going on.”
Parker said she wishes communities considering the park ordinances would allow offenders to seek exemptions to the rules. The ordinances in Woodfin and Morganton don't allow for exemptions.
In Mecklenburg, James said sex offenders can appeal to the court system to be removed from the sex offender registry.
N.C. law prohibits convicted sex offenders from living within 1,000 feet of a school or child care center.
View the article here
Yep, more political insanity, and there will be law suits, thus wasting more of your hard earned tax paying dollars for the corrupt idiots in office, all the while we are pushing the money down the drain on an unjust war. We are going bankrupt, oil, gas and food is costing more and more, and we have these idiots helping to destroy the United States. Well, the public asked for it...
You see folks, if you have EVER been convicted of a felony, in the past (retroactive), you will now be punished again. And possibly not be able to get a decent job. Well, what goes around, comes around!
TALLAHASSEE - School districts around the state await instruction to carry out Florida's Ethics in Education Act, officially in effect Tuesday, as some fear it may force them to fire good employees, impose a burdensome bureaucracy and lead to lawsuits.
- Oh, you can bet this all will happen, wait and see. And these are the idiots YOU voted into office!
The new law requires retroactive checks of criminal records of teachers and employees in contact with students, and bars from employment anyone with any felony conviction for a variety of specified crimes.
Most are obvious and bring no argument: sexual crimes against children, abuse and neglect, violent crimes. Other crimes that now are left to the judgment of the district will be automatic disqualifications for employment.
That has some districts concerned that long-ago indiscretions may automatically and immediately end otherwise stellar careers.
"If you have somebody who made a mistake much earlier in life ... and has done nothing since then, it's taken out of our hands, we have no choice but to fire them," said Gwen Graham, director of employee relations for the Leon County School District. "There will be instances where it seems very unfair, I'm sure."
The law requires such employees to be fired and to forfeit their state retirement.
But one of the law's authors says it sets important standards and cautions against hasty conclusions before the state's Department of Education issues its guidance on putting the act into practice.
Misty Cash, spokeswoman for Leon County's district, said the new law's impact is unclear.
"We know that we have some employees that will be affected. At this point we don't know how many," Cash said.
Education advocates and districts all said student welfare is the priority, but they don't want to lose autonomy.
"Maybe it's a minor drug case, somebody smoked a joint back in 1971 and were hired in 1974 and now that joint from 1971 has come back to haunt them," said Ronnie Arnold, spokesman for the Escambia County School District, where he said about 50 employees, of the district's 6,000, could be effected.
State Sen. Don Gaetz, a Niceville Republican, chair of the Senate's Education Committee and an author of the bill, said districts should read the law and await specific guidance from the state. He was previously superintendent of schools in Okaloosa County and before then a school board member.
"My advice to my former colleagues is that it's a little too early to pull the fire alarm," Gaetz said.
He said the law, the result of long work that included interest groups now objecting to it, requires local boards to develop their own practices and codes.
"I acknowledge that the standards we have set in this act are higher than we've set for other professions," Gaetz said. "Teachers are special."
The law includes required procedures for background checks, prohibits confidentiality agreements that hide criminality from future employers and requires guidelines for investigating allegations. Some districts say they're close to full compliance already, result of previous efforts undertaken by the schools and earlier laws such as the Jessica Lunsford Act.
"We've got 14,000 employees," said Lee County School Board Chairwoman Jeanne Dozier. "My conversation with the superintendent is we're going to do another screening of our employees and the expectation is it's going to have a minimal impact."
Much remains unknown about how, and over what time, it is required to fully carry out the law.
"This may be another example with legislation of unintended outcomes," said Joe Donzelli, director of communications for Lee County Schools. "A lot of things that sound great on the surface, but when you went into it you start to see the difficulties."
Even with uncertain rules, procedures in place now should help.
"What we have to hope is we've made good employment decisions all along so we don't have to be in that box," said Lee Berry, deputy superintendent for Brevard County Schools, who said the district's hiring procedures for six years have been much more stringent.
Berry said the district has set up extensive training that will put it in a good spot for much of the new law. He, too, awaits direction on what to do for employees with disqualifying crimes on their records.
The possibility of flexibility is going away.
"Part of our employment procedure has been the 10-year rule. If something shows up we would meet with you and talk about it and review what you've done with your life the last 10 years," Berry said.
He said the new law will not allow such leeway, although much remains unclear.
"We're just waiting on the (state DOE guidelines) that say here are the violations that you may not employ," Berry said. "For us, that's the biggest unknown."
Ruth Melton, director of legislative relations for the Florida School Boards Association, said she's concerned about taking away local power.
"We take (student safety) very seriously and are grateful to have additional tools to make sure that happens," Melton said. "The question is the lack of flexibility to interpret what we now can learn about employees and have the ability to use some judgment and take some responsibility for that judgment."
Gaetz says the board association, superintendents association and teachers union publicly endorsed the bill as it moved through the Legislature and the disqualifying crimes were set in negotiation with them.
"I agree that school boards should have the opportunity to set local standards and this legislation requires boards to set local standards," Gaetz said. "This bill is not a micromanagement of standards. It is a requirement that local standards be set."
It appears this bill was signed by the governor in May and will be put into effect tomorrow (July 1st). I forgot all about this, so I have sent an email to the Southern Center for Human Rights asking them about it.
Looks like us in Georgia can expect the Gestapo to come around asking for our user names, email addresses and passwords. Why in the hell do they want our passwords? I am not sure I am going to give them that info. That is just wrong and a total invasion of privacy. This is like giving someone your bank account information, which I'd never do either.
I usually change my passwords on a weekly basis, so this will force me to NOT change my passwords, or if I do, to re-register every time I change them, which will be a major pain in the butt. Or, keep the password and hope the police or some hacker doesn't decide to do something to get me a violation for something I did not do.
This really sucks.
Here is the link to SB-474:
And you can go here, and enter 42-1-12 and see what is required. They will be inserting new meanings and the new USERNAME, USER PASSWORD and EMAIL ADDRESSES, which we must submit to them.
Looks like I may have to get SCHR to help with a law suit, or hire a lawyer, which will probably be a waste of money. I don't agree with them having my password, nor any of the rest, but I'd be willing to give them any email addresses and IM names, but not my passwords. That is like giving someone my bank account number.
I am NOT providing them with my passwords, and will sign it UNDER DURESS, if they come around, and I'll get a copy of it, or take a picture of it with my digital camera. So I may wind up in jail or hiring a lawyer on a violation! It does say "when you register." So if that is the case, then I will not have to provide this information until next year, but, I know how Georgia Gestapo works, and I'm sure they'll be around in the next day or so.
We will see...
This is the reply I got from the Southern Center for Human Rights:
Aside from what we have already done, actively lobbying and testifying against SB 474 when it was pending in the General Assembly, we do not have additional plans to address this issue. While I recognize that it is a vague law that will be very annoying to comply with, this issue does not raise to the level of urgency as the residency and employment restrictions do. With our limited staff and resources, we feel that it is far more important for us to continue litigating the issues that we hope will allow people to stay in their homes. I’m sure you understand.
All the best to you,
Sara J. Totonchi
Public Policy Director
Law Offices of the Southern Center for Human Rights
83 Poplar Street, N.W.
Atlanta, Georgia 30303
Reasons why S-431 should not become law as written
How to submit your concerns about S-431's e-mail and other Internet Ids bill
View the article here
NOTE: This is in regards to the death penalty for sex offenders who have been found guilty of raping a child.
Briefs and Documents
- Docket: 07-343
- Brief for Petitioner Patrick Kennedy
- Brief for Respondent State of Louisiana
- Reply Brief for Petitioner Patrick Kennedy
- Brief for the Louisiana Association of Criminal Defense Lawyers and the Louisiana Public Defenders Association in Support of Petitioner
- Brief for the American Civil Liberties Union, the ACLU of Louisiana, and the NAACP Legal Defense and Educational Fund, Inc., in Support of Petitioner
- Brief for British Law Associations, Scholars, Queens Counsel, and Former Law Lords in Support of Petitioner
- Brief for the National Association of Criminal Defense Lawyers and Twelve Innocence Projects in Support of Petitioner
- Brief for National Association of Social Workers; the National Association of Social Workers, Louisiana Chapter; the National Alliance to End Sexual Violence; the Louisiana Foundation Against Sexual Assault; the Texas Association Against Sexual Assault; and the Minnesota Coalition Against Sexual Assault in Support of Petitioner
- Brief for Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, and Washington in Support of Respondent
- Brief for Missouri Governor Matt Blunt and Members of the Missouri General Assembly in Support of Respondent
- Petition for certiorari
- Brief in opposition
- Cert. stage amici briefs can be found here (NACDL), here (NASW, et al.), and here (Lousiana Public Defenders).
- The Supreme Court of Louisiana's Opinion, from the Pet. App., is here
The following is taken from posts by Lyle Denniston that originally appeared on SCOTUSblog.
For three decades, the Supreme Court has permitted the death penalty only for the crime of murder. On Tuesday, a Louisiana man under death sentence filed a new appeal asking the Court to maintain that limit, barring his execution for the crime of rape of a child. The Louisiana Supreme Court, however, ruled on May 22 that the Supreme Court’s 1977 decision barring capital punishment for rape (Coker v. Georgia) does not apply when the victim is a child under age 12.
The case could provide the first opportunity for the Court under Chief Justice John G. Roberts, Jr., to indicate whether it will continue to interpret the constitutionality of death penalty laws in the U.S. partly on the basis of what other countries do on the question. In the Court’s most recent rulings against application of the death penalty, barring it for juveniles and for mentally retarded individuals, it relied in part upon international as well as national trends. According to Amnesty International, more than half the nations that still have the death penalty do not impose it for child rape. (Inside the U.S., five states including Louisiana allow the penalty for child rape; the Kennedy petition says that prosecutors in the other states refuse to seek it.)
Patrick Kennedy, a 43-year-old black man from suburban New Orleans, has been sentenced to death after being convicted of raping his eight-year-old stepdaughter, identified in court papers only as “L.H.” He has contended since the assault occurred in March 1998 that it was committed by two neighborhood boys. His attorneys have said he refused to plead guilty when a deal was offered to spare him from a death sentence.
His petition says that he “is the only person in the United States who is on death row for a non-homicide offense. He has been sentenced to die for the crime of rape — an offense for which no person has been executed in this country for over forty years” — since Missouri executed Ronald Wolfe in 1964.
His lawyers posed two questions:
- “1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
- “2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.”
Louisisna’s legislature made aggravated rape a capital crime in 1995, when the victim was under 12 years of age. That is the way the law stood when Kennedy received a death sentence. In 2003, the state legislature changed the law to make that punishment available when the victim was under 13.
The Supreme Court, on June 2, 1997, refused to hear a pre-enforcement challenge to the Louisiana law. Three justices said in a separate statement that review of that case may have been barred for jurisdictional reasons, because the individual involved, Patrick DeWayne Bethley, had not been convicted of any crime, nor sentenced. (The Court’s order and the separate opinion in Bethley v. Louisiana, docket 96-8334, can be found here.)
The new appeal argues that the Louisiana Supreme Court decision upholding the child rape sentencing law “flouts the overwhelming national consensus that capital punishment is an inappropriate penalty for any kind of rape.” The Kennedy case, it adds, “stands in the ideal procedural posture for this Court’s review and actually highlights the distressing realities attendant to extending the death penalty into the realm of child rape. There would be no benefit from further percolation” on the issue in lower courts.
Brief in Opposition/Amici Analysis
Louisiana officials have urged the Supreme Court to allow the state to continue to seek the death penalty for those convicted of child rape. In a brief in opposition filed on Wednesday, the state argued that there is a distinct trend across the country to impose death sentences for crimes that do not result in death of any victim. In addition, it said, more states are opting to pass laws to make child rape a capital crime.
The case of Kennedy v. Louisiana (docket 07-343) poses a direct test of whether states may constitutionally impose the death penalty for any crime other than murder. And, in particular, it tests whether a death sentence is a disproportionate penalty, under the Eighth Amendment, for raping a child.
The case involves Patrick Kennedy, sentenced to death after being conviced of raping his eight-year-0ld stepdaughter. At the time of his conviction, Louisiana law allowed a death sentence for raping a child under age 12; the law has since been changed to allow that sentence when the child is under age 13. Kennedy is the only individual now facing a death sentence in any state for a non-homicide, his lawyers have told the Court.
The state said that the Court, if it agrees to hear the case, should focus not only on how many states treat rape of a child as a capital crime, but also on a trend toward applying the death sentence to more crimes where the victim is not killed. Five states, like Louisiana, now have capital punishment for child rape, all enacted since 1997 with the most recent, in Texas, in 2007.
Moving beyond that specific crime, the state’s brief said, 15 out of the 38 states and the federal government – 41 percent of the jurisdictions, it notes — “authorize some form of non-homicide capital punishment.” That includes treason, espionage, aircraft piracy, aggravated kidnapping, and some drug trafficking crimes.
“The trend toward capitalization of non-homicide crimes, child rape in particular, is significant,” the state asserted.”Six states have now enacted the death penalty for child rape after this Court [in Coker v. Georgia, 1977] held that the death penalty for rape of an adult woman was unconstitutional.”
While Kennedy is the only death row inmate sentenced for child rape, that does not mean that juries are unwilling to impose the sentence for that crime, the state argued. Three states have had their laws on this subject only for two years, it noted.
Arguing that such a sentence fits the crime, the state said that “the harm inflicted upon a child when raped is tremendous,” and that “sex offenses against children cause untold psychological harm not only to the victim but also to generations to come….Execution of child rapists will serve the goals of deterrence and retribution as well as the execution of first-degree murderers.”
Kennedy’s appeal is now supported by the National Association of Social Workers and a group sexual assault crisis centers, arguing that the Louisiana law goes too far by providing for a possible death sentence for any act of oral, anal or vaginal sex with a child under age 13 and thus will encourage offenders “to kill their victims.” Another amicus, the Narional Association of Criminal Defense Lawyers, argued that the unreliability of child victim testimony makes it “far too likely” that the death sentence may actually be imposed on the innocent. A group of public defenders in Louisiana also supported the appeal, arguing that they must prepare to defend anyone accused of child rape as if it were a capital case, even though prosecutors often reduce the charge to a non-capital offense; public defenders thus must spend limited resources in cases that may never turn out to be capital, after all. Thus, they contended, they need the uncertainty over the validity of the Louisiana law cleared up as soon as possible.
Forty-four years have passed since any criminal in the United States was executed for a crime in which the victim was not killed. The Supreme Court, in Kennedy v. Louisiana (07-343), will consider whether to allow states to resume the practice of imposing a death sentence for a non-homicide crime – in this case, for the crime of raping a child under age 12.
Since a Supreme Court ruling in 1910 (Weems v. U.S.), it has been clear as a constitutional matter that the death penalty may be imposed only for the most serious crimes – crimes severe enough that execution would be a proportionate punishment. The Court has never spelled out, in a final way, which crimes are in that category. Rather, it has moved from crime to crime for which states have sought the ultimate punishment, and judged each in turn. Its last decision focusing on the nature of the crime came in 1977.
That year, in Coker v. Gerogia, a plurality of the Supreme Court remarked that “rape is without a doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and the public, it does not compare with murder, which does involve the unjustified taking of human life…We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.” Since that time, the Court has not upheld capital punishment for any crime in which death does not result. At the time the Coker case was decided, it had been 13 years since anyone in the Nation was executed for a crime other than murder. (Missouri put Ronald Wolfe to death in 1964 for the crime of rape and, later that year, Alabama executed James Coburn for robbery.)
Justice John Paul Stevens is the only member of the Court at the time of the Coker decision who is serving now (he was in the majority then), and thus the Court’s changed membership might well become a factor in its decision on whether to uphold a death sentence for a non-homicide crime. That will be tested when the Court considers Kennedy v. Louisiana, a case in which the Louisiana Supreme Court upheld a death sentence for the rape of a child under age 12. In its opinion in May 2007, the state’s highest court remarked that “it seems clear that if the [Supreme] Court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be for child rape.”
The state court also pointed out that two new Justices have joined the Court since it laid down (by a vote of 5-4 in the 2005 decision in Roper v. Simmons) a two-part test for judging whether the death penalty was unconstitutional for a given category of case. First, a court is to review whether there are objective signs of a consensus, especially in the actions of state legislatures, on whether to allow capital punishment for a specific category of crime or defendant, and, second, whether, independent of any such consensus, the death penalty for that category is deemed to be a disproportionate punishment.” (The five Justices who spelled out that test remain on the Court now.)
The new capital punishment case now before the Justices involves Patrick Kennedy, of suburban New Orleans, who was sentenced to death after being convicted of the “aggravated rape” of his eight-year-old stepdaughter in March 1998. Kennedy and another death-row inmate in Louisiana, (At the time of his crime, the Louisiana law allowed a death sentence for rape of a child under age 12; it has since been amended to apply where the child rape victim was under 13.) Those two Louisiana inmates are the only ones in the Nation facing execution for a non-homicide crime.
In upholding Kennedy’s death sentence and the state law under which it was imposed, the Louisiana Supreme Court said that the Supreme Court’s Coker v. Georgia decision invalidating capital punishment for rape only applied to crimes in which the victim was an adult. It then went on to apply the Supreme Court’s Roper test to judge the validity of the sentence. It found a trend toward allowing capital punishment for rape of a child in the fact that five states adopted such laws following Coker. Nine other states, it noted, still have on their statute books laws that allow a death sentence for a non-homicide crime. Moving on to the second part of the constitutional test, the state Supreme Court found that the severity of the crime of raping a child justified a conclusion that execution was not too severe a punishment.
Petition for Certiorari
Patrick Kennedy’s lawyers appealed his case to the Supreme Court on Sept. 11, 2007, raising two issues: first, whether the death penalty for rape of a child was “cruel and unusual punishment” in violation of the Eighth Amendment, and, second, whether Louisiana’s law did not narrow the class of those eligible for that penalty because it applied whenever a rape was committed, and the victim was under 12 years of age.
The petition argued that there is an “overwhelming national consensus that capital punishment is an inappropriate penalty for any kind of rape.” It noted that 45 states ban such punishment, and prosecutors and juries in the states that have them – aside from Louisiana – refuse to impose that punishment. Those facts, it contended, show the rarity of the punishment, rather than establishing a trend toward its revival. The most compelling single fact, the appeal asserted, is that only Louisiana has actually given a death sentence for child rape.
The appeal also argued that it is now well established by Supreme Court precedent that capital punishment is too great a punishment for crimes in which the victim is not killed. Further, the petition also relied upon decisions from other states’ supreme courts that have considered the constitutional issue – especially decisions in Florida in 1992 and Mississippi in 1989 rejecting the death penalty for raping a child.
The appeal was supported by the National Association of Social Workers and a group of sesual assault crisis centers, by the National Association of Criminal Deense Lawyers, and by a group of public defenders in Louisisna.
In urging the Supreme Court not to hear Kennedy’s appeal, Louisiana officials contended that there is a distinct trend across the country to impose death sentences for crimes that do not result in the victim’s. Aside from the five states that have adopted capital punishment laws for child rape cases, the state’s brief argued that the Justices should also focus on the fact that 15 out of the 38 states that still retain death sentencing, plus the federal government, “authorize some form of non-homicide capital punishment. The state also noted that the number of states with capital punishment for child rape had risen from the five noted by the state Supreme Court, to six, with Texas adopted such a law in 2007.
The state contended that it was not significant that only a few individuals have actually received death sentences for child rape, since some of the states’ laws on the subject were adopted only recently. It takes some years for capital cases to reach the penalty phase – for example, five years in the case of Patrick Kennedy, the state noted.
Since the Supreme Court has not ruled in 31 years on a category of crimes for which a death sentence would violate the Eighth Amendment, there is no firm basis for a projection of what it may now do as it reopens that question in the context of a death penalty for raping a child. Presumably, it will still apply the two-part test that a five-member majority imposed three years ago in Roper v. Simmons (since those five are still on the Court). Because the number of persons so far facing an actual execution for child rape is so small, and since the number of states adopting that specific approach remains small, the Court may have to decide whether to broaden step one on the consensus point to include a survey of the jurisdictions that would execute for any non-homicide crime (a larger number). But, if it does not take that tack, the second step – its independent judgment on proportionality – could be the key. The language of the Coker plurality opinion in 1977 would seem to counsel against the death penalty for any crime that does not involve the victim’s death, but the current Court may experience some temptation to look beyond that consideration to consider the plight of the child victim in particular. If it judges that category of rape to be significantly more severe, it could distinguish Coker by treating it as a decision only about rape of an adult victim. Whether the two newest members of the Court, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., will exert any noticeable influence on the outcome is uncertain. Justices Antonin Scalia and Clarence Thomas, dissenters in Roper, seem likely to support Louisiana’s authority to execute for child rape. The key vote, then, may once more be held by Justice Anthony M. Kennedy – the author of Roper.
Patrick Kennedy’s lawyers, in their brief on the merits, once again relied first on the Coker v. Georgia decision in 1977 and subsequent rulings that “made clear that capital punishment is categorically impermissible for person-on-person violence that does not result in death, and in which the offender does not attempt or intent to kill or display reckless indifference toward human life.” That point, if accepted by the Court, would make it unnecessary for the Court to go through the two-part Roper test to weigh the validity of Louisiana’s law on death sentences for child rape. Thus, this first point relies upon the notion that the issue is already decided, making the Louisiana Supreme Court appear to have departed from a “well-settled rule.” On that point, the brief summed up: “This Court should not deviate from the dictates of Coker and its progeny.”
Moving on, though, to the Roper analysis, the Kennedy brief stressed heavily the argument that Louisiana is not only just one of five states that allow capital punishment for raping a child, but that Louisiana’s law is the only one in the Nation that could have been used to sentence Kennedy to death. It noted that, in the other four states, such a sentence is available only “in situations where a defendant has a prior conviction for sexual battery or rape of a child.” Two of the other four, it added, also require that the defendant have served at least a 25-year sentence for such a crime against a child. The brief also sought to discount the Louisiana argument that it is relevant to consider that death is an available sentence for other crimes “less heinous” than child rape. The brief also recited its argument on the backup point – that Louisiana’s law is invalid because it does not narrow the class of those eligible for capital punishment for child rape.
The state of Louisiana’s merits brief treated the Eighth Amendment issue as clearly still unresolved, suggesting that the Coker decision is not controlling. The Supreme Court in Coker, the brief recalled, made 14 separate references to the fact that the victim in that case was an adult woman. Thus, the state asserted, the Court there “refrained from deciding whether the death penalty is grossly disproportionate for the rape of a child.”
Turning to the Roper inquiry, the state insisted that there are now six states that punish child rape with a death sentence. It added Georgia to the list cited by Kennedy’s counsel, arguing that the punishment still remains available there in the wake of a recent state Supreme Court ruling. The state also added a seventh state, Florida, noting that there remains on the books such a law even though the state Supreme Court has struck down that penalty for the rape of a child. The state also sought to rely upon the fact that legislation to permit the penalty for that crime is now under consideration in state legislatures in Alabama, Mississippi and Missouri. Adding all of this together, the state asserted, provides “powerful evidence that this Court should not be quick to infer that there is entrenched opposition to capitalizing child rape in states which do not yet have such laws.”
Again, as in its earlier response brief, the state asserted that the Court should also look to the laws of 14 states and the federal government that authorize a death sentence for other crimes that do no involve the killing of the victim. And, the state introduced a new argument, noting that the recent spate of laws (going by the name “Megan’s Laws”) that provide special punishment for sex offenders, particularly those who target children. Louisiana also relied upon scientific and medical evidence of the harms done to children who are raped. The state’s brief spent little effort on answering the claim that Louisiana’s law does not narrow the eligible class of defendants.
Kennedy’s challenge is supported by amici that include those that were on his side at the petition stage, plus civil liberties and minority rights groups, and a list of British lawyers, scholars, former Law Lords, and British law associations.
Louisiana’s side drew the support of eight states – including three of the four that now have laws that would punish child rape with death (Oklahoma, South Carolina and Texas), plus six others: Alabama, Colorado, Idaho, Mississippi, Missouri and Washington. Their briefs argued that the Court should preserve “the ability of democratically elected legislatures to enact laws” reflecting current moral judgments against “the unique and horrific crime of aggravated child rape.”
The state also has the separate support of the governor of Missouri and members of its state legislature.
Oral Argument Recap
When the Supreme Court debates and then casts its first votes in private on Friday in the case testing the constitutionality of the death penalty for the crime of raping a child, the key points at issue may well be the meaning of a 1977 decision (Coker v. Georgia), and the uniqueness of the Louisiana law and, especially, its apparent lack of limits on its reach. Those were the obvious highlights of the 64-minute hearing the Justices held in Kennedy v. Louisiana. A further point of seeming importance: Justice Anthony M. Kennedy, perhaps once again holding the decisive vote, spent considerable effort looking for ways to allow a death sentence for child rape, but only in narrow, strictly confined circumstances.
The hearing moved back and forth between pondering the scope of Coker — a case in which only a plurality of four Justices spoke directly on the principal conclusion — and weighing the sweeping nature of the Louisiana law at issue. The Court appeared less interested in whether the nation’s state legislatures were embarked on a trend to imitate — or not — Louisiana; in other words, the question of whether a trend is running against, or in favor of, executing a rapist whose victim is a child. These impressions suggested that the challengers to Louisiana’s law had better success with their backup argument than with their primary claim.
At the opening of the argument by Stanford law professor Jeffrey L. Fisher, representing death-row inmate Patrick Kennedy, he summarized his two points: first, that there is a “national consensus” against executing those who commit child rape, and, second, Louisiana alone does not limit who among child rapists would actually be eligible for the death penalty — that is, that state’s law lacks a narrowing factor.
His second point immediately became the focus of the questioning, as the Justices explored how to define crimes that are serious enough to justify capital punishment, yet do not sweep so broadly that anyone committing the crime, no matter what the specific circumstances, would be eligible for execution. When Fisher sought to make his point by using the situation that existed in the case that led to the Court’s 1977 Coker decision, striking down the death penalty for rape, that opened up the other layer of emphasis: just what does Coker stand for?
Justice Ruth Bader Ginsburg noted that the case was decided by only a plurality, and that Justice Lewis F. Powell’s separate concurrence left open the prospect that death could be imposed if the rape were “outrageous” and caused “lasting harm” to the victim, even though she did not die. Fisher was saying, Ginsburg told him, that “the Court held that you cannot have a death penalty for rape. And I suggested that that’s not so clear.” Justice Antonin Scalia chimed in to show he had the same doubts about the scope of that ruling.
Those exchanges may turn out to be significant because, if Coker does not, in effect, settle the issue in Kennedy, then Fisher’s side can win only if he convinces the Court that there is, indeed, a national consensus against Louisiana’s approach, or that Louisiana’s law is so close to being limitless that it has what he called “freakish” results due solely to the caprice of juries on who gets executed.
Chief Justice John G. Roberts, Jr., promptly took the case back to the consensus issue, making it abundantly clear that he does not see a consensus running against Louisiana’s approach, but there may, in fact, be an opposite trend. “More and more states are passing statutes imposing the death penalty in situations that do not result in death,” Roberts suggested. Scalia added his own skepticism about the consensus argument.
Ginsburg at that point began discussing whether the meaning of the Coker decision had a bearing on the consensus issue. As Ginsburg put it, one of the briefs from amici states suggested that states might not be passing laws like Louisiana’s because they were reading Coker to mean they could not, that “Coker seems to cover the waterfront,” and she put it, adding: “We cannot know if there is a consensus one way or another until this Court clarifies what Coker stands for.” Fisher resisted, but the damage had been done. The Chief Justice immediately picked up on Ginsburg’s point, as Justice Kennedy would later, during the argument by the attorney for Louisiana.
Just before Fisher was to finish his initial argument, Justice Kennedy asked him to discuss how the Louisiana death law for child rape could be narrowed. It could be narrowed, the Justice said, by imposing death only for a repeat offender (as other states with the death penalty for child rape do), but are there any other ways to narrow it? Fisher said it could be limited to situations that were “particularly heinous…something like torture or extraordinarily serious harm.”
Louisiana’s lawyer, assistant district attorney Juliet L. Clark of Gretna, opened by a graphic description of the severe injuries done to the child rape victim in Patrick Kennedy’s case — an indication that the state’s argument was going to be focused mainly on how deserving Kennedy was of capital punishment.
Justice Stephen G. Breyer soon brought up a “slippery slope” point, suggesting that, if the Court were to uphold a death penalty for a crime in which the victim was not killed, “I can think of horrible things all over the place” that the states would begin to make capital crimes. Legislatures all over the country, Breyer said, would take up the seeming invitation. The Justice also discussed a variety of molesting instances which, if committed against a child, would qualify the perpetrator for punishment, as a rapist, with death.
Somewhat surprisingly, Justice Scalia suggested to Clark that, while he did not agree with the Court’s past precedents on the need to narrow those who would be eligible for capital punishment, that requirement was there as a limiting factor on jury discretion. With some help from the Chief Justice, Clark said that Louisiana’s death for child rape law did provide for sufficient narrowing, because it limited it to children victims of a young age. She got into trouble with Justice David H. Souter in trying to argue that the child rape law was limited in the same way that Louisiana limited punishment for murder. The discussions on that point were not helpful to the state’s argument, since they tended to indicate that the child rape law was, in fact, not limited by a narrowing factor.
Supporting the Louisiana law as counsel for eight amici states, Texas’ state solicitor general Ted R. Cruz quickly ran over a general argument that there was, indeed, a trend toward laws to punish more severely the crime of “violent child rape,” but then moved on to the meaning of the Coker precedent. It was immediately apparent that he had picked up on the Court’s puzzlement over how to read that ruling. Cruz suggested that the precedent “has been under a cloud of confusion.” The state legislatures are confused about it, believing that it took away their option to punish the crime of child rape with death, he said.
He encountered some difficulty when Justice Kennedy asked him to comment on whether prosecutors are using their discretion to obtain a death sentence for child rape as a way to obtain plea bargains, so that the law is not being used for “only the most egregious cases.” It was another variation on the point about whether the Louisiana law had any limits to it. Cruz did not dispute the point, but went on to argue that the two individuals who had received the death sentence in Louisiana for child rape had “committed crimes that are just unspeakable.” He then moved into an argument that buttressed his point about the consensus in favor of punishing “predators that seek out young children and do abominable things to them. And that’s why legislatures are acting.” And, soon, he returned to his theme about the “unspeakable crime” that Patrick Kennedy had committed.
Before Cruz had finished, Justice Kennedy pressed him with a hypothetical about how, if Cruz were asked to draft the statute, how he would insert “limiting categories.” Cruz answered that prior conviction as a predicate for a death penalty for child rape would be one limitation. Another would be to limit it to “especially heinous or vile rapes.” And a third was the factor of multiple child victims.
In a brief rebuttal, Fisher melded his two main arguments, suggesting that there was no trend toward enactment of death sentencing laws for child rapists when the perpetrator had not committed prior crimes. Other states have passed laws in the child rape context, but those laws are “all about recidivism,” Fisher said. “Louisiana is not part of that trend. Louisiana stands alone.”
The Court is expected to decide the case in late spring or early summer.
Links and further information
- ABA Journal: Death for Rape, an Echo of the Past (April 2008)