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August 29, 2014

Appeals Court: Judge must consider bond motion for man held in sex offender slaying

8-29-2014 Alabama:

MONTGOMERY, Alabama — A state appeals court says a Cullman County judge must consider a bond request by a father charged with killing the man who molested his daughter.

The Alabama Court of Criminal Appeals ruled Thursday that Circuit Judge Gregory Nicholas must hear a motion to reduce the $141,000 cash bond set in the case.

Nicholas previously refused to consider the request, saying a district judge had to rule first.

The father is accused of murder and other charges in two shootings, including one that killed 59-year-old Raymond Earl Brooks in June.

Brooks pleaded guilty in 2001 and served more than two years in prison for sexually abusing the man's daughter.

The Associated Press doesn't identify victims in sex crimes, and it isn't naming the father to protect the daughter. ..Source.. by Daily Journal

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The Role of Psychiatry in Sex Offender Management

8-29-2014 National:

Medicine and law have a rich collaborative history in the management of persons convicted of sex offenses. Despite different assumptions about the offender and different perspectives about management and goals that may only partly overlap, each discipline offers significant expertise that promotes healing and risk management strategies while increasing community safety.

The term “sex offender” is a legal, not a psychiatric, designation. Sex offenders make up a psychiatrically heterogeneous group of individuals whose only unifying characteristic is that they have violated the law governing sexual expression in a given culture.1 The law may not greatly concern itself with the biopsychosocial antecedents of illegal sexual behavior, although it recognizes that questions of intent and incompetence or diminished capacity are important considerations.

A psychiatric perspective

Psychiatrists, like all physicians, view sexual behavior in terms of health. Normal sexual behavior is roughly equated with healthy sexual behavior; abnormal sexual behavior invites psychiatric intervention to restore a patient’s sexual health.2

In our experience, psychiatrists infer the presence of a sexual disorder or abnormality from certain statistically rare sexual behaviors and/or self-reported distress. Like all physicians, psychiatrists then arrive at a diagnosis congruent with the clinical picture. Differential diagnosis is important because identical behaviors or symptoms often have very different etiologies. Diagnosis typically informs the psychiatrist’s choice of therapies intended to diminish or control the patient’s sexually abnormal behavior.

Psychiatrists tend to believe that factors that motivate sexual behavior are intrinsic to the organism. Such intrinsic factors might include psychosis, PTSD, and abnormal biological drive states and, therefore, are more constant across history than the ethical and philosophical underpinnings of a culture as expressed in its laws. The legal construct of a “sex offense,” is more tightly culture-bound. Social attitudes toward sexual behaviors are not immutable, however, and laws change, both reflecting and reshaping cultural values.1

The legal perspective

In contrast to psychiatry, the law may criminalize conduct irrespective of the underlying cause or motivation. The law tries to enforce compliance by imposing such sanctions as fines, incarceration, “assisted” outpatient treatment, and civil commitment.

The concept of sexual illness or wellness is often influenced by prevailing social values concerning what sexual behavior is appropriate or inappropriate. The distinction between lawful and unlawful sexual conduct has also been affected by psychiatric views of what constitutes mentally ill sexual behavior and what does not.

For example, in the past 50 years, society and psychiatry have radically changed perspective and judgment of homosexuality. Before the 1970s, most of the psychiatric community viewed homosexuality as a mental disorder, a concept enshrined in DSM in 1952. In this first DSM, homosexuality was categorized as a “sexual deviation” presumed to be a “personality disorder of psychogenic origin or without clearly defined tangible cause or structural change.” In 1973, the American Psychiatric Association eliminated homosexuality as a mental disorder in the sixth printing of DSM-II, substituting a new category, Sexual Orientation Disturbance. ..Continued, Membership Req.. by H. Martin Malin, PhD and Fabian M. Saleh, MD

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ADAM WALSH WAIVER: When a Petitioner’s Criminal History Matters

8-29-2014 National:

Usually, criminal history in an immigrant application isfocused on the immigrant applicant and not the petitioner. The applicant might be inadmissible on account of a conviction for a theft offense, violent crime, or a drug-related crime (among others), but such grounds of inadmissibility do not apply to the petitioner.

Subject to one very important exception, a U.S. citizen or LPR petitioner is not barred from petitioning a spouse or fiancé because of the existence of a prior criminal record. The exception is a prior conviction for a “specified offense against a minor.”

The Adam Walsh Child Protection and Safety Act of 2006 amended the Immigration and Nationality Act by adding a bar that prohibits a U.S. citizen or lawful permanent resident from petitioning a spouse or fiancé if the petitioner has been convicted of a “specified offense against a minor,” unless the petitioner can demonstrate to the Department of Homeland Security that he or she poses “no risk” to the beneficiary spouse or fiancé.

A “specified offense against a minor” is broadly defined as an offense against a person under the age of 18 that involves kidnapping, criminal sexual conduct (including consensual sexual contact with a person under age 18, if convicted of an offense related to that contact), and any other conduct “that by its nature is a sex offense against a minor.” The date of the conviction does not matter.

In Matter of Jackson and Erandio, the Board of Immigration Appeals (BIA) held that the Adam Walsh Act bar applies even if the conviction occurred many years before the Adam Walsh Act became law. ..Continued.. by Attorneys Eric R. Welsh & Nancy E. Miller

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August 26, 2014

Repeat sex offenders will stay in jail, despite Pa. court ruling

8-26-2014 Pennsylvania:

A Pennsylvania Superior Court ruling that deems mandatory minimum sentences “unconstitutional” is being called a landmark decision that will provide relief to criminals of all sorts.

First-time sex offenders and armed robbers are expected to be among those getting in line for potential appeal relief from their sentences.

However, local legal experts say, there will be no breaks for repeat sex offenders and inmates convicted of multiple violent crimes.

That includes a pair of local sex offenders who recently received life sentences in Lancaster County Court for repeat convictions of sex crimes against kids.

James Sellard, a 73-year-old man with multiple sex-abuse convictions, was just sentenced last week to life for at least his third conviction.

Last month, Richard Eugene Lawrence was jailed for life for sex abuse against a seventh child since 1984.

“I don’t believe the ruling will affect the case of a second or third strike under the (state) sex crime laws,” Jeffrey Conrad, Sellard’s attorney, said Friday. “The ruling doesn’t appear to affect mandatories that are controlled by a previous or prior conviction(s).”

Other local legals agreed this week while reading Wednesday's high-court opinion.

Harold Leroy Herr is among the local repeat offenders who won’t be getting appeal help.

Herr’s case gained national publicity after he kidnapped and sexually assaulted a 5-year-old Lancaster Township girl last summer.

A pair of teenagers in the neighborhood trailed Herr’s car and relayed a description to police, which led to his capture.

Herr, 74, is serving a 50-to-100-year sentence after a plea deal was struck. A repeat offender, he faced mandatory 25-year prison terms on two of the felony charges, officials said Friday.

The high-court ruling only affects cases in which a mandatory minimum sentence was implemented due to “elements” of a crime. For example, a gun being used in a robbery previously resulted in a 5-year mandatory minimum prison term. Same goes for drug dealers found in possession of a gun.

Prior convictions, however, are not considered elements of a crime. Therefore, sentences in those cases will stand, locals said.

Superior Court Justice Kate Ford Elliott’s ruling, which was joined by five other justices, essentially gives more discretion to judges at sentencing.

Lancaster County District Attorney Craig Stedman criticized the ruling, saying it will provide first-time armed robbers and sex offenders lighter sentences, while raising the population at Lancaster County Prison.

More offenders will now be sentenced there instead of state prison, Stedman said.

Anyone sentenced to a minimum prison term above one year must serve that sentence in state prison, not county jail.

The ruling is expected to be appealed to the state Supreme Court. ..Source.. by Brett Hambright

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SJC upholds GPS monitoring of sex offenders

8-26-2014 Massachusetts:

The state’s highest court has rejected a challenge to the state law that requires GPS monitoring during probation for people convicted of certain sex offenses involving a child.

The court said the law gave judges no discretion on whether to impose the GPS monitoring during probation, and the Legislature had good reasons for enacting the law.

“Permissible legislative objectives concerning criminal sentencing include deterrence, isolation and incapacitation, retribution and moral reinforcement, as well as reformation and rehabilitation. ... The provisions of [the law] reasonably can be viewed as serving many, if not all, of these goals,” the court said in an opinion written by Justice Barbara Lenk.

“The Legislature permissibly has determined that the risk of being subjected to GPS monitoring might deter future or repeat offenders. The Legislature similarly was free to conclude that enabling police to track the movements of all convicted sex offenders would promote the security and well-being of the general public,” the ruling said.

The court ruled in the case of Jose Guzman, who was convicted of dissemination of visual material depicting a child in a state of nudity or sexual contact, one of the sex offenses involving children that require GPS-monitored probation. A lower court judge had declined to order the GPS monitoring, but the high court said that was a legal error.

The court rejected Guzman’s claim that the law violated due process rights. It also said there wasn’t enough information brought forward to rule on his claim that the law violated constitutional protections against unreasonable search and seizure.

The court noted that it did have concerns about GPS monitoring during probation when it is required “regardless of any individualized determination” of a person’s dangerousness or risk of reoffending.

But the court said that that debate had “already been settled on the floor of the Legislature.” ..Source.. by Martin Finucane

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August 25, 2014

INGLE: Two decades later, has Megan's Law delivered?

8-25-2014 New Jersey, National:

It's been 20 years since New Jersey's Legislature passed Megan's Law. The two decades since have been filled with legal challenges and disappointment it didn't accomplish what many thought it would. It's what happens when politics and emotion team to shortcut the legislative process.

The law is named for Megan Kanka, who was raped and killed in 1994 when she was 7 after being lured into the home of a twice-convicted sex offender, Jesse Timmendequas, who lived across the street from the child.

Her parents, Maureen and Richard, lobbied the Legislature for a law to require registration of sex offenders; it was named after their daughter. It went into effect just months after her horrible death.

Typical of legislation rushed through, New Jersey's version has been much challenged. Other states and the federal government took their time and did it better. In New Jersey, there is a back story involving Republican Garabed "Chuck" Haytaian, who was Assembly speaker and wanted to replace Frank Lautenberg in the U.S. Senate. His colleagues saw the law as an opportunity.

In his campaign ads, Haytaian bragged he "fast-tracked Megan's Law." Both chambers of the Legislature were controlled by Republicans, and so was the Governor's Office. They wanted to see Lautenberg, a Democrat, beaten. Haytaian came within 3 points of winning.

Emotion and political ambition are not a good combination for strong, effective legislation — the usual vetting and debate got lost. After its passage, it was tied up in court for years, a lot of it because of unforeseen problems. As much as we hate it, there is a reason the legislative process is slow and deliberate by design.

In 2009, a study by the state Department of Corrections and Rutgers University concluded Megan's Law doesn't deter sex offenders in New Jersey. The report says it makes it easier to find them because of registration, but you don't need a report to tell us that. It also said the cost of carrying out the law — the report used $5.1 million, the cost in 2007 — may not be justified.

After Gov. Christie Whitman signed the bill into law, Maureen Kanka hit the road, talking to groups about the dangers of pedophiles, and then worked in a foundation named for her daughter that used federal grant money to do background checks on volunteers who work with children. That money has dried up.

The house where the crime occurred is now a park named for the child. Timmendequas is serving a life sentence without chance of parole.

The debate about Megan's Law's usefulness remains active.

Fletcher Duddy, an attorney in the state Public Defender's Office, told the Star-Ledger the law is "the product of good intentions" but does more harm than good. "Meg­an's Law is just putting a scarlet letter on someone, making them a pariah in modern-day society so they can't function in that society. It really has a counterproductive effect."

"Are there problems with the way it's implemented in places? Yes," Whitman told the paper. "Do we have to carefully remind parents to know where their children are and to watch? Yes. But this is one instance where it's better to be safe than sorry."

The Department of Corrections says about 7,000 people have registered under Megan's Law in New Jersey and 2,600 more will have to when released from prison.

Nowadays, when asked about success in cutting down on child molestation, Megan's Law defenders are quick to point out the purpose was not to end child abuse but to give communities information about where convicted sex offenders reside so they can protect themselves and the children in the neighborhood.

That's what the much-challenged law does. But that wasn't the impression of its intent given by supporters when it was rushed through. The public was allowed to be misled into thinking it would do more. Had they taken enough time they might have created legislation that stood the test of time and afforded people a realistic understanding of what it could accomplish. Much more needs to be done.

There have been other laws named for individuals, and it seems that many are flawed. Laws should be about achieving a clearly stated goal, not as a memorial or fuel for someone's political career. ..Source.. by Bob Ingle who is senior political columnist for the State House Bureau

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August 24, 2014

Child-porn sentencing questioned

The single biggest problem with child porn photos is, there is no way for the public to determine how a prosecutor has construed a specific photo. Is it one parents took of a naked child in the bathtub, teen sexting, a simple photo of a young lady, 17 going on 18, in her underware, and so may other possibilities; we just do not know how the photo is being construed or misconstrued by a overzealous prosecutor. All are crime scenes?

UPDATE Note CP desc., & culture issue: Man accused of child pornography importation claims images 'a harmless custom' in home country
8-24-2014 Ohio:

Are federal sentencing guidelines for possessing child pornography too harsh?

Calling the guidelines “draconian,” U.S. District Judge James L. Graham has become increasingly vocal in his criticism from the federal bench in Columbus.

Possessing child porn is vastly different from distributing or producing it, Graham said in an interview last week. “The purveyors or producers of these images deserve the most severe punishment we can give them. My concern is the people who end up possessing it.”

Richard Bistline, a Knox County man, is to be in federal court on Wednesday to be sentenced for the third time for child-porn possession. His case thrust Graham into the spotlight in 2010 after the judge sentenced Bistline, of Mount Vernon, to one day in prison,

30 days of home confinement and 10 years of probation. The recommended sentence under federal guidelines was five to six years.

Assistant U.S. Attorney Deborah A. Solove appealed Graham’s sentence to the 6th U.S. Circuit Court of Appeals, which ruled that the penalty did not reflect the seriousness of the offense. The appeals court ordered Graham to resentence the defendant.

But a defiant Graham again sentenced Bistline to a single day in prison, although he increased the home confinement to three years. Solove again appealed, and the 6th Circuit court again ruled that Graham’s sentence was too lenient. The court removed Graham from the case.

Judge George C. Smith is to sentence Bistline on Wednesday.

Before deciding on a sentence, judges by law must take into account sentencing guidelines, which essentially are numbers tied to the aspects of a crime. Each crime has a base number — 18 is the number for simple possession of child pornography — and points are added based on the details of the defendant’s case.

If a defendant uses a computer to access child pornography, for example, two points are added to the base number.

The guidelines list a prison-sentence range based on the base number and the additional points. Judges can sentence outside the guidelines but must explain why.

Graham says the guidelines for child-porn possession are outdated. Adding points for looking at child porn on a computer is unjustified, he said, because nearly all of it is accessed that way. Adding points for possession of numerous images is unjustified because “current technology produces numerous images with one key stroke or mouse click,” he said.

Assistant U.S. attorneys who prosecute child-porn cases declined to comment on the sentencing guidelines. But they have argued in numerous cases over the years that the pornography would not be produced if there were no market for it, so those who possess it are creating a market for the images.

Solove has pointed out in court documents that the guidelines leave room for lesser sentences. Among the mitigating circumstances: No hard-core pornography is involved; victims in the images are older teens or close in age to the defendant; the child-porn collection is from one download; the defendant has developmental issues; or the collection of images is small.

In its second Bistline ruling, the appeals court wrote that possessing child porn “is not a crime of inadvertence, of pop-up screens and viruses that incriminate an innocent person.” Possession becomes a crime “when a defendant knowingly acquires the images — in this case, affirmatively, deliberately and repeatedly, hundreds of times over, in a period exceeding a year."

Graham isn’t alone in his contention that the guidelines are outdated.

A 2013 U.S. Sentencing Commission report on federal child-porn guidelines noted that many of the sentencing enhancements designed to further punish the worst possessors now apply to most offenders.

In 2010, for example, 96 percent of such cases included the use of a computer and involved images with prepubescent minors, the report says. Each triggers a two-point addition to the offense level used to calculate a guideline sentence.

“Most stakeholders in the federal criminal-justice system consider the nonproduction, child-pornography-sentencing scheme to be seriously outmoded,” the report says.

Steve Nolder, a lawyer who directed the federal public-defender offices in Columbus, Cincinnati and Dayton until last year, said the guidelines need to be changed.

“They’re the direct result of the political winds blowing out of Congress,” with legislators having increased the punishment for child-porn offenses within the guidelines in recent years, he said.

Nolder has represented numerous defendants charged with such offenses.

“It’s easy to vilify these people,” he said. “Is prison necessary? Maybe for some people.”

But, he pointed out, a minimum prison sentence for someone convicted of possessing child pornography is not a mandate. The statutory penalty is zero to 10 years, he said, so some defendants should qualify for the lowest sentence — no prison time.

What everyone wants to know, he said, is whether those who view child pornography have a greater tendency to molest children.

“The psychology of that is in its infancy, but right now, the data says no,” Nolder said.

Other men who have pleaded guilty to one count of child-porn possession in federal court in Columbus, as Bistline did, have received multiple-year sentences. Among them: former special deputy sheriff Todd R. German of Union County, sentenced last year to four years; former Reynoldsburg teacher Matthew Fisher, sentenced in 2011 to three years; and former Columbus doctor Philip Nowicki, sentenced in 2011 to two years.

Graham said most of the child-porn-possession defendants he sees have no previous criminal record and “are involved in viewing these images as a result of what appears to be a form of addiction I think is becoming more and more prevalent in today’s society, affecting people of all ages.”

Just by being found guilty, he said, they face ruined lives, for both themselves and their families.

“They need to stop it,” he said. “The men who are doing this are going to get caught.” ..Source.. by Kathy Lynn Gray

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August 22, 2014

Mandatory minimum sentences are 'unconstitutional,' Pa. court says

8-22-2014 Massachusetts:

Locals charged with crimes involving drugs, guns or sex abuse could be due relief at sentencing, according to a high-court ruling.

A Pennsylvania Superior Court opinion has deemed mandatory minimum sentences “unconstitutional,” a ruling which could have major impact on countless cases here and across the state.

The high court made the statement Wednesday in its ruling of a Montgomery County case involving a man, James Newman, who received a mandatory 5-year sentence for possession of drugs and a gun.

The high court vacated that sentence, while calling the current “practice” of mandatory minimum sentencing unconstitutional.

Five justices agree with Justice Kate Ford Elliott on the entirety of her opinion.

Three other justices agree on the Montgomery County case, but not the full scope of Elliott’s opinion.

Local legal professionals say the opinion essentially quashes the current mandatory minimum sentencing scheme.

Will ruling affect repeat offenders, including two local sex offenders recently sentenced to life?

“This removes a huge amount of power from the district attorney,” Lancaster defense lawyer Chris Patterson said, “and restores it to the (judges).”

Lancaster County District Attorney Craig Stedman said the ruling is “terrible” for locals. He hopes the state Supreme Court will take action on the issue.

“In the short term, this is a huge blow to public safety and will have widespread ramifications for the law-abiding citizens of this county,” he said.

It isn’t clear if the ruling will apply to past cases. Locals say defendants still on active appeal can get relief and others also could qualify.

Federal cases will not be affected, locals said.

Mandatory minimum sentences are often implemented in armed robberies, sex offenses and crimes involving possession of drugs and guns. They are also invoked in crimes against infants and the elderly.

Essentially, the high court ruled that when a mandatory minimum sentence is utilized based on "elements" of certain crimes — such as the gun being present in the Newman case — a jury must determine if those elements are proven.

Regarding sentencing, the ruling brings much more discretion to judges.

“A lot of people didn’t like them,” local attorney Jeffrey Conrad said of mandatory minimums, “because you [take away] the judge’s authority.”

The ruling “recommits to the judges the ability to do what (they) want,” Conrad said. “Of course, the (defendants) will be happy.”

That doesn’t sit will with Stedman.

“Anytime you have a decision in which the people celebrating are convicted armed robbers and people who sell drugs to children,” he said, “I’m not sure there is much to say other than it is beyond disheartening.

“We are not talking about retail theft and forgery defendants here.”

Lancaster defense lawyer Michael Winters said he expects the decision to be appealed to the state Supreme Court.

Upon first review of the ruling, locals said, it likely won't impact mandatory sentences for drunk drivers involved in fatal crashes. Currently, those convicted of vehicular homicide while DUI face mandatory 3-year prison terms.

That mandatory is part of state sentencing law, which is different from scenarios affected by the ruling, locals said.

The state court based its opinion on a U.S. Supreme Court decision from June 2013, locals said.

That decision essentially states that a jury must rule on “elements” of a crime, such as whether a drug dealer was in possession of a gun.

While some see the ruling as a positive, Stedman said the negative impact could be widespread. He expects a population spike at Lancaster County Prison.

“(It) will undoubtedly increase as many drug dealers and robbers who would otherwise go to state prison will now get county sentences,” he said. “But, this is what the court has ruled and we will have to adjust and hope the (state) Supreme Court makes it right.” ..Source.. by Brett Hambright

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New Bill In Congress Would Ban Private Citizens From Owning Body Armor

8-22-2014 Washington DC:

A new law that has been introduced in the U.S. House of Representatives "would prohibit the sale, transfer or possession of military-level body armor by civilians". In other words, private citizens all over the entire nation would be permanently banned from owning body armor if this bill gets passed and signed into law.

The bill that I am talking about is H.R. 5344 (The Responsible Body Armor Possession Act), and you can view the proposed legislation for yourself right here. The driving force behind this new law is Democrat Mike Honda from California.

To Honda, it doesn't matter that large numbers of very responsible Americans have purchased body armor to protect themselves and their families in a society that is rapidly decaying. Instead, it makes perfect sense to Honda to ban body armor because "access to military-grade body armor emboldens criminals and mass shooters to act." And Honda wants to make possession of body armor a criminal offense with a penalty of up to 10 years in prison.

This is absolutely crazy, and it is yet another example of the "police state mentality" that is so prevalent among our politicians these days. When I first learned about this new law, I could hardly believe it. But it is actually true. The following is an excerpt from a news story about the introduction of this new bill... ...Continued.. by Michael Snyder

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