Sex Crimes Issue of Federal Sentencing Reporter

Posted on Categories Criminal Law & Process, Legal Scholarship

I’ve worked for almost a year on the new issue of the Federal Sentencing Reporter, which covers recent developments in the punishment and management of sex offenders.  My copies arrived in the mail yesterday.  (I have a few extras, which I would be happy to distribute free of charge; just send me an email if interested.)  My introductory essay is available on SSRN.  Here is a summary of the other articles:

Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals

Professors Mary Ann Farkas and Gale Miller of the Marquette University Department of Social and Cultural Sciences identify important tensions in the therapist’s role when sex offenders are required to undergo treatment by the criminal justice system.  “Divided loyalties may arise,” they argue, “when treatment professionals feel a conflict between their professional responsibility to facilitate client change and their legal/criminal justice responsibilities.”  For instance, if an offender tells his therapist about a previously undisclosed offense, the therapist may be obliged to report the offense for possible prosecution.  Likewise, the therapist’s ability to sanction clients for noncompliance with the treatment program also puts therapists into a more punitive and less therapeutic role.  In light of such concerns, the authors call for treatment providers to modify their programs in various ways when they serve “involuntary” clients.

Child Pornography Sentencing: The Road Here and the Road Ahead

Attorneys Ian Friedman and Kristina Supler trace the development of the Sentencing Commission’s guidelines for child pornography offenses.  “Rather than reflecting the experience and judgment of the Commission,” they argue, “the child pornography Guidelines reflect a series of politically driven amendments.”  The authors also describe grounds for variances below Guidelines ranges that have been recognized in child pornography cases.  They contend that the “weakness of the data and methodology underlying the child pornography Guidelines provides an independent argument in support of a variance.”

Sexual Predator Laws: A Two-Decade Retrospective

President Eric Janus of William Mitchell College of Law and Professor Robert Prentky of the Fairleigh Dickinson University School of Psychology consider the development of a civil, regulatory approach to sex offenders that has taken place alongside criminal justice responses.  Exemplified by civil commitment laws for sexually violent predators, the regulatory approach bypasses traditional protections given to criminal defendants.  The authors argue that the concept of “mental disorder,” which plays a central legitimating role in civil commitment laws, lacks clarity from the perspective of the behavioral sciences, leading to confusion in the courts and the development of questionable new diagnostic categories.  They also discuss the risk that the civil, regulatory approach will be extended from the sex offender context to other categories of individuals perceived to be dangerous, such as terrorism suspects.

Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court’s Book on the Death Penalty

In Kennedy v. Louisiana, the Supreme Court barred capital punishment for the rape of a child.  In so doing, argues Mary Graw Leary, a law professor at Catholic University, the Court subtly shifted its Eighth Amendment jurisprudence.  The changes serve both to favor the Justices’ own subjective judgments about the use of the death penalty and to signal that any law that significantly increases the number of death sentences will be constitutionally suspect.

Brandishing the Mark of Cain: Defects in the Adam Walsh Act

Professor Joseph Lester of Faulkner University considers sex offender registration requirements under the federal Adam Walsh Act.  “Because the social stigma is so great,” he argues, “the brush used to mark sex offenders needs to be precise.  Not every person convicted of a sex crime should be designated as a sex offender.”  The Adam Walsh Act, however, uses overly broad categories and provides no process by which individual sex offenders can show that they are not so dangerous as to require registration.  The author argues in favor of new procedures that would involve asking a jury to determine whether an offender is likely to reoffend before registration is required.

American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness

Canada has followed a markedly different path than the United States in developing legal responses to sex crimes.  Criminologists Michael Petrunik and Lisa Murphy and psychiatrist J. Paul Federoff recount the Canadian experience and suggest reasons why the United States has moved so much more quickly to a “community protection” model, which emphasizes risk assessment and management over both treatment and individual due process rights.  The authors also question the effectiveness of community notification laws and other measures that have been adopted in the name of community protection.  They argue instead for expanded use of “community support and accountability reintegration programs,” which have been used with success in Ontario.

From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy

Criminologist Richard Wright argues that Congress has not relied on “research and reason” in adopting new sex offender laws.  He examines the national experience with sex offender registration and notification laws prior to the Adam Walsh Act and finds a “lack of empirically demonstrated efficacy, untold financial costs, and faulty promises of sexual assault prevention.”  Congress nonetheless greatly expanded registration and notification requirements in 2006 through its adoption of the Walsh Act.  The author contends that this new statute, like earlier sex offender laws, is likely to produce a variety of unintended consequences, including significant new fiscal burdens on local-level government, vigilante attacks against offenders, and increased difficulty for offenders in becoming rehabilitated.

The Sex Offender Registration and Notification Act and the Commerce Clause

Enacted by Congress in 2006, the Sex Offender Registration and Notification Act makes it a federal crime for some sex offenders to fail to register properly with state authorities.  Although dozens of “failure-to-register” defendants have challenged the constitutionality of the SORNA, nearly all courts to consider the question have upheld the statute as a valid exercise of Congress’s Commerce Clause authority.  After examining the reasoning of these decisions, however, Professor Corey Rayburn Yung of John Marshall Law School finds them to be inconsistent with the Supreme Court’s recent Commerce Clause jurisprudence.  He argues for amendments that would limit the reach of the SORNA and thereby bring the statute into conformity with constitutional requirements.

Copies of individual articles may be ordered here.

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