Post from an Advocate: Two interesting decisions by federal judges in cases that all too often cause reason to fly out the window—convictions for sex offenses.
Reason.com | March 22, 2016
Federal Judge Stops Nebraska From Forcing 13-Year-Old to Register as a Sex Offender He committed his offense when he was 11.
Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences
BY TRACY CONNOR
A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat. U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines…
“I am looking for someone who has fantasies we can act out,”
"A “big toy collection” would not be all that bad either," “I want
someone that fantasizes about being brought to a...
U.S. District Judge James S. Gwin of the Northern District of
Ohio polled a jury in February about what jurors thought a suitable
sentence would be for Ryan Collins, a child...
If you or someone you know was denied entry into another
country as a consequence of registration, we want to hear from you. A new group, organized under RSOL National, is...
Brevard County has an ordinance that not only precludes the
residency of sex offenders, but where they can be physically present.
Seriously! The Brevard County Ordinance states,...
Brevard County Public Schools recently issues the following
statement: “Sex offender check enhances safety in Florida schools…
Administrators at Brevard County Public...
The Florida Action Committee has sent two letters to the
Florida Department of Law Enforcement (FDLE) within the past couple of
months, asking them to notify us of recent changes...
The Kansas Supreme Court is set to rule on the retroactive
lengthening of the time one has to register under their state’s
registry. Similar to what Florida has done, the...
We hope you had an enjoyable summer, but it’s back to
business! There will be a Member Call this Thursday, September 4, 2014
at 8:00 PM EST. The credentials to access the...
Source SPRING LAKE, N.C. - A registered sex offender accused
of sexually assaulting an 11-year-old girl in Spring Lake is expected in
court Tuesday afternoon. Nathan Cooley, 28,...
This article points out the financial absurdity of keeping
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which are lower risk to re-offend or are a...
This week, Wired Magazine put out an interesting article about
the former Cybersecurity Director for the US Department of Health and
Human Services. As it turns out, this guy who...
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sentence or two) and also talk about what you believe to be the most
important theme(s) in the play. MIRACLE VILLAGE...
Photographer Noah Rabinowitz selected Miracle Village, of all
places, as the subject for a series of photographs. The images, as well
as the story behind the colony of Sex...
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offenders living in a remote village near Pahokee, FL because there is
nowhere else for them to...
Source: USA Today CLEARWATER, Fla. – Not only have Central
Florida law enforcement officers violated federal rules in conducting
“To Catch a Predator”-inspired...
This past Sunday another Sun-Sentinel Sex Offender story came
out. This time the concern is that Broward county sex offenders who are
registering as homeless are not truly...
On Thursday, Joseph Goldstein of the New York Times reported
that “Dozens of sex offenders who have satisfied their sentences in New
York State are being held in prison...
If Mart city employee Lonnie Green’s saga of triumph,
despair and desperation demonstrates anything, it’s that justice is
often blind in how it’s meted out. This can be...
Source Child-porn sentencing questioned Are federal
sentencing guidelines for possessing child pornography too harsh?
Calling the guidelines “draconian,” U.S....
A member wrote: In the Lifelong Learing program of FAU, a
professor, Laurence Miller, is offering a course on “Bad People: Modern
Insights into the Criminal Mind”...
Until Dec. 11, 2013, Jesse Ryan Loskarn was a popular chief of staff
for a Tennessee senator. But on that winter day, police broke down the
door of his rowhouse in southeast Washington, D.C., and searched for the
illegal digital items that had led them there: explicit videos of boys
posing nude and engaging in sexual acts.
On Thursday, Jan. 23, 2014, Ryan was found dead in his basement.
On Monday, Jan. 27, 2014, there was a twist. Ryan’s mother posted his
suicide note online, revealing the great complexity to his story. He
wasn’t a faceless headline, wasn’t a cautionary tale, wasn’t a vague
story of justice. He became what most people didn’t want him to be: a
human being.
What most of us have trouble comprehending — an argument all but
forbidden in our current climate — is that Ryan could be understood as a
victim himself. For his suicide note reveals a stunning truth: his own
history of sexual abuse, one that had far-reaching, complex emotional
effects.
II.
The way the government punishes the purchasing, downloading,
possession, or distribution of child pornography has become increasingly
draconian. According to Families Against Mandatory Minimums (FAMM),
the length of federal child pornography sentences has increased
500-percent in the last 15 years. The federal mandatory minimum is five
years for receipt, distribution, possession with intent to distribute or
sell, transportation, or production of child pornography — per image.
This conduct could range anywhere from producing explicit images of the
violent abuse of children to accidentally clicking on the wrong link or
inadvertently downloading a video on a file-sharing network. Yet law
enforcement (and society generally) conflates these situations; child pornography becomes a loaded and intimidating institution that needs to be crushed.
The legislative scheme underlying current child pornography laws in
the U.S. goes much further than addressing the actual harm caused by
viewing or possessing such images. Rather, these sentences address
imaginary assertions that those who view or download such illicit images
are also guilty of undiscovered abuse in the past or will commit
heinous contact offenses in the future.
In 2011 a federal appeals court called into question the justice of
current federal sentences for child pornography possession. Current
sentencing rules routinely result in prison terms that meet or exceed
the 20-year statutory maximum for the charges, regardless of whether the
person has done anything more than just look at the wrong photo online.
The appeals court viewed such punishment as “outrageously high.”
In a statement from the United States Sentencing Commission last
February announcing their report on child pornography, Judge Saris
concluded, “Because of changes in the use of Internet-based
technologies, the existing penalty structure is in need of revision.”
Despite the strong evidence calling into question the rationale and
effects of current U.S. sentencing policy, thousands of people continue
to be sentenced under these extreme penalty schemes every year.
At the dawn of the digital age, sex offender hysteria has fueled a
new form of witch hunt. Such has historically been the case for groups
identified as an emerging threat to society, whether they are composed
of the namesake “witches,” who were actually mentally ill or socially
ostracized women, gay men in the mid-20th century, or alleged satanic child molestation cultists
decades later.
Traditional subjects of witch hunts are easy targets:
Already marginalized and disliked by society, they become demonized and
portrayed as evil on an unearthly plane. People can slip into this
category quickly; with today’s Internet, it’s as easy for a person to
download a sexualized image or video of a minor as it is for law
enforcement to track down and identify those doing the downloading.
As with the war on drugs, the lowest-hanging fruit is easiest to
pick. Law enforcement has found it far easier to track down low-level
users and dealers than to stem the large-scale creation and distribution
of narcotics. In the war on sex offenders, it’s easier to prosecute
teens for sexting or someone for looking at the wrong image online than
it is to address the contact sexual abuse of children. At a time when
parents feel more insecure than ever
about the dangers facing their children, the prospect of the Internet —
a space new to this generation, full of dark places and unknown threats
— has inspired genuine fear, born perhaps of ignorance more than anything else.
III.
So what happens when someone is arrested for possession of child
pornography? They feel as if their lives have been ruined, that there is
no going back to a normal life, no way out, no hope for understanding
or empathy from anyone in their lives. They are immediately fired from
their jobs. Human relationships crumble, and families are shattered.
They are almost invariably convicted and sent to prison and are often
placed in imposed solitary confinement, which may be physically safe but
can be psychologically damaging. In prison, child pornography offenders
are the lowest on the totem pole, both ostracized and targeted. They
are often subjected to abuse
from inmates and staff alike and are sometimes even killed. Having a
same-sex victim comes with its own baggage and set of biases, as one now
becomes a double offender, transgressing social boundaries of age as well as gender.
Once released from prison, child porn offenders are placed on a sex
offender registry, many for the rest of their lives. Currently nearly
750,000 people are listed as sex offenders on the public registry.
The
rules of the registry make it nearly impossible to find work or housing,
and this is even harder for those on parole and probation. They are
publicly listed on the Internet with a photo, address and description of
the offense, which leaves the offenders and their families vulnerable
to harassment, violence, and sometimes murder. Recently two registrants were beaten and killed in New Hampshire for being publicly listed as sex offenders. A registrant in South Carolina and his wife were killed
by a white supremacist in their homes, once again for being listed on
the public registry. Suicide as a consequence of sex offender registries
is also common. Last year, in a profoundly tragic situation, a 15-year-old boy
in Alabama hanged himself shortly after being arrested for streaking
during a high school football game. While there are many factors to
suicide, it seems that the school’s explicit threat of prison and sex
offender status greatly contributed to his death. Sadly, these cases are
not rare.
These facts likely contributed to Ryan’s decision to end his own
life. He was smart and worked in politics — he knew the consequences. In
his letter, Ryan recounts his humiliation, suffering, and regret around his situation.
The most complex part of his situation is admitted in his letter:
I found myself drawn to videos that matched my own
childhood abuse. It’s painful and humiliating to admit to myself, let
alone the whole world, but I pictured myself as a child in the image or
video. The more an image mirrored some element of my memories and took
me back, the more I felt a connection.
This is my deepest, darkest secret.
As a child I didn’t understand what had happened at the time of the
abuse. I did know that I must not tell anyone, ever. Later the memories
took on new and more troubling meaning when I became a teenager. They
started to appear more often and made me feel increasingly apart from
everyone else. In my mind I instigated and enjoyed the abuse — even as a
five and nine year old — no matter the age difference. Discussing what
had happened would have meant shame and blame.
What he is saying is both familiar and counter to the societal
dialogue around child sexual abuse. Yet his personal story and complex
emotional world are real. Viewing an offender as a victim of sexual
abuse, which is so often the case, is hard and goes against our instincts to oversimplify the vilification of an abuser.
The decision to empathize with a person who has caused harm is a
deeply personal one. We know that many minds will not be changed on this
issue. We are asking you, however, to think about what happened to
Ryan, think about the laws, and think about the way society and the
media contributes to hatred and hysteria. How do we all contribute to
the groupthink? Where did we learn our biases? Are our attitudes and
approaches helping address the very real problem of child sexual abuse?
Ryan’s death is a tragedy, and we would like to believe that his
suicide, and others, could have been prevented. Averting future
tragedies begins by understanding the entire picture of child sex abuse,
our societal responses to such harm, and the very human core beneath it
all.
Florida
Action Committee (FAC), founded in 2006, is a state-wide consortium
of concerned citizens and professionals whose purpose is to promote the
prevention of sexual abuse while preserving the safety and dignity of all
citizens through carefully structured laws targeting the truly violent, forced,
and/or dangerous predatory acts of sex. FAC believes that many aspects of the
current approach to sex offenders seriously undermine justice and actually
increase the threat of sexual assault against others, particularly children.
FAC opposes a publicized registry of sex offenders and seeks to bring an end to
the humiliation of people who have already paid for their crimes. FAC asserts
that only by supporting justice for all people—offenders and victims alike can
a truly safe society be built and secured for all Americans.
Does downloading child pornography from the Internet deserve the same criminal punishment as first-degree murder?
A circuit court judge in Florida clearly thinks so: On Thursday, he sentenced Daniel Enrique Guevara Vilca, a 26-year-old stockroom worker whose home computer was found to contain hundreds of pornographic images of children, to life in prison without the possibility of parole.
But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.
“To me, a failure to distinguish between people who look at these dirty pictures and people who commit contact offenses lacks the nuance and proportionality I think our law demands,” said Douglas Berman, a law professor at Ohio State University, who highlighted Mr. Vilca’s case on his blog, Sentencing and Law Policy.
Sexual offenses involving children enrage most Americans, and lawmakers have not hesitated to impose lengthy prison terms for offenders. In Florida, possession of child pornography is a third-degree felony, punishable by up to five years in prison. Mr. Vilca was charged with 454 counts of possession, each count representing one image found on the computer.
Steve Maresca, the assistant state attorney in the case, said that in his view, Mr. Vilca “received a sentence pursuant to the sentencing guidelines.”
“Too many people just look at this as a victimless crime, and that’s not true,” he said. “These children are victimized, and when the images are shown over and over again, they’re victimized over and over again.”
But Lee Hollander, Mr. Vilca’s lawyer, called the sentence ridiculous.
“Daniel had nothing to do with the original victimization of these people; there is no evidence that he’s ever touched anybody improperly, adult or minor; and life in prison for looking at images, even child images, is beyond comprehension,” he said.
Mr. Hollander said Mr. Vilca had consistently said he did not know the images were on his computer. He refused a plea bargain of 20 years in prison, after which the state attorney increased the charges. The sentence will be appealed, Mr. Hollander said.
Troy K. Stabenow, an assistant federal public defender in Missouri’s Western District, noted that most people assume that someone who looks at child pornography is also a child molester or will become a child molester, a view often mirrored by judges.
But a growing body of scientific research shows that this is not the case, he said. Many passive viewers of child pornography never molest children, and not all child molesters have a penchant for pornography.
“I’m not suggesting that someone who looks at child pornography should just walk,” he said. “But we ought to punish people for what they do, not for our fear.”
State and federal laws, which generally increase penalties based on the number of pornographic images, reflect the idea that acquiring child pornography requires extensive time and effort and thus is a measure of a defendant’s involvement and interest. But with the rise of the Internet, it is possible to download hundreds of images in a matter of minutes, making the size of a stash a less than reliable indicator, Mr. Stabenow and other criminal justice experts said. It is now a rare case that does not involve the possession of hundreds, or even thousands, of images.
As a result, many federal judges have issued sentences lower than those called for by federal guidelines, which add months for multiple images and other aggravating factors. And even when such sentencing enhancements are enforced, the sentences — which can sometimes be 18 or 20 years — are often well below what Mr. Vilca received. The federal guidelines, for example, recommend a minimum of 57 to 71 months in prison for possession of 600 or more images of very young children.
Paul Cassell, a former federal judge who is now a law professor at the University of Utah, said there was no question that “consumers of child pornography drive the market for the production of child pornography, and without people to consume this stuff there wouldn’t be nearly as many children being sexually abused.”
Mr. Cassell is involved in efforts to get restitution for victims of child pornography, and has filed a petition in one case with the Supreme Court. But he said that while he was not familiar with Mr. Vilca’s case and did not know what other facts might be involved, “in the abstract, a life sentence for the crime of solely possessing child pornography would seem to be excessive.”
“A life sentence is what we give first-degree murderers,” he said, “and possession of child pornography is not the equivalent of first-degree murder.”
A version of this article appeared in print on November 5, 2011, on page A9 of the New York edition with the headline: Life Sentence for Possession of Child Pornography Spurs Debate Over Severity.
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"When an American says that he loves his country, he means not only that he loves the New England hills, the prairies glistening in the sun, the wide and rising plains, the great mountains, and the sea. He means that he loves an inner air, an inner light in which freedom lives and in which a man can draw the breath of self-respect." ~Adlia Stevenson U.S. Vice President (1893–1897) and Congressman (1879–1881)
On a Personal Note
Thanks for the opportunity to express my thoughts regarding the issue of citizens’ rights, particularly addressing certain sex offenders’ crimes that do not fit the devastating, inequitable and endless punishment given.
As you know, many young men and women lives across the nation are being destroyed by incarceration, life-time registry and restrictive laws that do more harm than good. For those individuals, there is no second chance.
Below is a personal letter to President Obama: * * * * “Dear President Obama, I truly agree with your sentiments that individuals, such as ex-felons, should be able to receive a second chance at life. Since we all know that one can veer off that path of life and travel along rough, rocky terrain, sometimes running off and ending up in some ditch. We all have made our fill of mistakes and sometimes those held a costly consequence that changed life forever. So we lived through it, trying harder to make things right with family, friends and those around us, but what about those who aren’t able to make things right even if they tried…because they’re labeled as too dirty, a leper, a person who is rejected from society and home. But what if they’re a seventeen year old and had sex with a fifteen year old, consensual at that? Or they’re a teen that had gotten so enraged after a breakup that he sent out naked pictures of his girlfriend on his cell phone or email? Or an individual urinates where someone just happens to see them? All are wrong and a travesty but do they deserve the life of no second chance with a registry that ends all. They are labeled, no jobs, no where to live…they have been deemed a menace to society, a plague. These certain circumstances, and many other situations similar to these, I believe still deserve a second change.
Fourteenth Amendment to the United States Constitution
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. After my son’s early release and two years of prison, I thought I had handled that fact graciously knowing after serving his time he would be able to get that fresh start, that second chance. He was an exemplary inmate, GED, college courses and vocational classes. Little did I know that a second chance on the outside was the farthest from the truth? He now struggles and lives in a trailer park sharing a trailer with another and surrounded by others in the same rocking boat, one to float endlessly in shark infested waters. I see him little because of probation requirements (he couldn’t live with us because we were 800 feet near a school). My family is afraid of what would happen to them if he lived with them…vigilantism. My son has no other place to stay since others condemn him of his crime that is screamed from the highest rooftop. Sex offender, sex offender!
Not all sex offenders are pedophiles or predators but some are simply young kids that make one stupid and rash decision that eventually changes everything, and they have no idea what they’ve done until their life is never their own. Exactly, where is that second chance for those sex-offenders who are lumped together with pedophiles and predators? Now, it makes me sick to think of my son’s future and many like him that are on the registry and many with no second chance…ever. I am asking you as a mother and as another concerned citizen of the United States that these laws are looked at again and taken into serious consideration in what they are doing to the Constitution of the United States, not for sex offenders in general but the future rights of every citizen, before anymore are put into effect. They unjustly strip an offender of their rights and place them in a guillotine that can be easily set off by anyone and at anytime. Where is the second chance for ex-sex offenders in the present, pending and future laws?” * * * * What truly saddens me is the weakness and deterioration of what the sex offense issue is doing to our once, great nation. Across Europe, others are seeing the injustice and disregard of rights, but we ignore this problem and it makes me wonder where humanity is heading….
We have become a hysterical society in which our latest witch-hunt is a sex offender--no matter his/her crime.
Below is a email sent from a foreign advocate to a father of a sex offender: * * * * “The tragic story of your son's death is just so sad that it's difficult to explain how. It was very hard to read your letters. It seems almost unbelievable that this can take place in a democracy! From our point of view, there is no justice in this. Not in any way: not for you, your son, the former girl friend – or even the state.
It is an abusive legal system. It seems barbaric. And we are so very sorry that this takes place. That's why it's so important for us to try to neutralize the debate with this…, hopefully making some changes. ….. to show the every day life of the sex offenders, trying to show how they keep on being punished, even after served prison time…..But we will for sure tell the story of the injustice that your son has been exposed to.” * * * * I appreciate everyone's commitment and backing to protect everyone's civil rights, plainly as noted in the Constitution of the United States and is presupposed, giving ALL men are “life, liberty and pursuit of happiness.”
