Sex Crimes Issue of Federal Sentencing Reporter

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.

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Seventh Circuit Week in Review: Crook Impersonates Cop, Cop Impersonates Teenager

The Seventh Circuit had only two new opinions in criminal cases last week, with both focusing on sentencing issues.  The first, United States v. Abbas, clarified the harmless error doctrine as it relates to mistaken sentencing calculations.  The second, United States v. Nagel, considered the constitutionality of a ten-year mandatory minimum for enticement of a minor.  By some coincidence, both cases involved impersonation.

In Abbas (No. 07-3866), the defendant was convicted of several crimes, including impersonating an FBI agent.  Falsely claiming the power to make various immigration and criminal problems go away, Abbas tricked several desperate victims into paying him for assistance.  A jury found him guilty of a number of charged offenses, but acquitted him of extortion under color of official right in violation of the Hobbs Act.  Curiously, though, the district court judge sentenced Abbas based on the federal sentencing guideline for extortion under color of official right.  (As I discussed with my Sentencing students just last week, the guidelines permit defendants to be punished for crimes of which they have been acquitted.  Sound strange?  You would not be alone in so thinking!)

On appeal, Abbas argued that “extortion under color of official right” only applies when someone who is actually a public official abuses his authority, and does not cover private citizens who are merely pretending to be public officials.  In effect, Abbas argued that he was really only guilty of fraud, not the more serious offense of extortion.  And, had he been sentenced for fraud, his guidelines range would have been only 15-21 months, instead of the actual 24-30 months.

The Seventh Circuit (per Judge Tinder) agreed . . . but still declined to order a resentencing.  Abbas won the battle, but not the war.

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Wisconsin Supreme Court Accepts Three New Cases, Including a Case That Will Determine Whether a Crime with No Sexual Component May Trigger Sex Offender Registration Requirements

 

Supreme Court sealToday the Wisconsin Supreme Court accepted three new cases for review, two criminal cases and one civil case.

One of the criminal cases, State v. Smith, 2008AP1011, asks the court to determine whether the sex offender registration statute, Wisconsin Statute section 301.45, is unconstitutional in its application to a defendant whose crime, false imprisonment of a minor, concededly had no sexual component whatsoever.  The Defendant Smith was convicted of falsely imprisoning a minor in connection with a drug crime.  That conviction triggered application of the sex offender registration requirements in section 301.45.  Smith did not register, and was charged with failing to register as required.  He argues that the sex offender registration requirement violates his due process and equal protection rights because his crime had no sexual component.

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