Two Tears

Two true stories, that is, of people on a sex-offender registry.

The first. Today, she’s a 34-year-old mother of two great kids. Back then, she was a teenager herself when she slept with a boy on the night of her 19th birthday party. The boy was mature enough to pursue her but, as it happened, he was 14. His mom reported her to the police the next day, and they called her in to talk. They told her if she were honest, she wouldn’t go to jail, but it’s funny how that works, because after they filed the case, she was told that she could serve 20 to 25 years if she went to trial and lost. Or she could plead guilty and serve minimal time, but she would have to register as a sex offender.

Today, she’s a good person and a mother of two great kids, but her conviction looks like child molestation on paper, and she must register as a sex offender for life. Recently, she worked to become a staff writer for a local newspaper, but then someone complained about it, and the paper let her go. No one bothered with the details. You should watch her video.

The second. He was a junior in college when he went to Miami for spring break. He met a girl there at an 18-and-over club, and they ended up hooking up. Seven months later, he got a call from law enforcement in Florida. As it happened, the girl had used a fake ID to get into the club. She was actually 15 at the time, and her mom filed a complaint when she found out. So they asked the young man to come to Miami to talk, and he agreed. He told them everything was consensual, and he assumed she was 18 or older since she was in the club. They took his statement, thanked him for his cooperation, and arrested him on the spot.

Five years later, he was homeless because he couldn’t find a job or housing given his lifetime sex-offender registration. Two years ago, almost ten years after his conviction, he failed to register his whereabouts and received three years in prison. You should read his story, too.

 

Lifetime Sex-Offender Registration for Kids

Do you think sex-offender registration is punishment?

What if it’s for life?

What if it’s for a 12-year-old boy?

Last week, the California Court of Appeal ruled that it’s not punishment to call a kid a sex offender for life because of something he did when he was twelve years old.

According to the court, the boy’s early years were marked by extreme neglect and abuse. He was taken from his mother at age five and shunted from one foster home to another until he was adopted.

Then, when he was twelve, he was processed in juvenile court for pushing a five-year-old boy to the ground and committing a lewd act on him. He was put on probation and ordered to enroll in sex-offender treatment.

After that, he was found to have violated his probation three times: once for hanging out with other minors without adult supervision; once for touching his adoptive sister’s breast, after which he was sent to a group home; and once more for grabbing a boy’s butt there.

At that point, the court put him in juvie and ordered him to register as a sex offender. In California, that meant he would have to register as one for the rest of his life. Wherever he moved, he would have to register with the city police or the county sheriff. If he went to college, he would have to register there, too. Even if he never moved, he would have to register again every year within five days of his birthday.

He appealed on the ground that lifetime registration for kids was cruel and unusual punishment. He also argued that it hindered public safety rather than helped it because it hurt a kid’s chance to live a normal life. Even the juvenile court had acknowledged that it “mess[ed] up the rest of their lives by hanging this tag on them.” Of course, the same could be said for adults, as we’ve explained before.

But the appellate court held that it wasn’t even punishment, let alone cruel and unusual punishment. The court relied on prior cases by the California Supreme Court and the U.S. Supreme Court to that effect. Although those cases didn’t address the question of kids specifically, this court wasn’t going to be the first to carve out an exception for them.

[Update: Beginning January 1, 2021, California will eliminate lifetime registration for many offenses, as we explain here.]

Our Ballooning Sex-Offender Registries

California’s not the only state having trouble with its sex-offender-registration regime. In New York, the prisons are holding people past their release dates because they can’t find anywhere to live, and nearly 95% of the homeless shelters are off-limits, too.

The problem is that we don’t pass these laws on the basis of reason and evidence but on the basis of an emotional reaction to bad facts in higher-profile cases. That’s not good policy, but that’s how we get laws that require lifetime registration for every sex offense regardless of the offense or the person’s risk of re-offending (which is the case in California). Or how we get laws that register people for things like consensual teenage sex (as in at least 29 states), peeing in public (at least twelve states), or prostitution (at least six states).

[Update: Beginning January 1, 2021, California will end lifetime registration for many offenses, as explain here. The new law tracks the three-tiered system proposed below.]

The consequences are that we spend many millions of dollars to maintain registries that don’t help us distinguish high-risk offenders from low-risk ones and that permanently deprive people of any hope, housing, employment, or positive human relationships by branding them as monsters for life.

A large, growing body of research, however, says that we’re wrong about two key assumptions: that sex offenders re-offend at a higher rate than others and that most of them are strangers lurking among us. To the contrary, they are no more likely to re-offend than others—or even less likely to do so—and they are overwhelmingly not the bogeymen in the bushes but, rather, the (unregistered) people we know.

Who says so?

Well, the U.S. Department of Justice, for starters. Here’s a 2009 DOJ-funded study, for example, that found lower rates of recidivism based on its meta-analysis of 23 prior, accredited studies. And here’s a 2003 DOJ report that tracked nearly two-thirds of all the sex offenders who were released from state prisons in 1994 and found they had a lower rearrest rate than non-sex offenders.

Or how about the California Sex Offender Management Board, which oversees the largest state registry in the country in the first state to create one (back in 1947). The Board is comprised of prosecutors, police officers, and parole agents among other experts and officials. Around this time last year, it released a white paper that proposed replacing mandatory lifetime registration in California with a three-tiered system:

  • lifetime registration for sexually-violent offenders, repeat offenders, and other high-risk offenders;
  • a twenty-year registration for those who are convicted of serious or violent offenses but are not high-risk re-offenders; and
  • a ten-year registration period for misdemeanor offenders and others convicted of non-serious or non-violent offenses.

The Board’s proposal would help focus resources on those who truly present a risk while permitting others to develop stable lifestyles and move forward with their lives. We should lend our support to legislators who sponsor a bill to enact its recommendation.

Or how about Patty Wetterling, whose eleven-year-old son, Jacob, was kidnapped in 1989. Afterward, she worked hard to move more states to create sex-offender registries, and in 1994, President Clinton signed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act into law. Today, Ms. Wetterling is the Chair of the National Center for Missing & Exploited Children, and she has served on its Board of Directors for over twenty years. But she is also one of the sharpest critics of the spiraling, ballooning use of registries that does more harm than good.

Pope Francis Calls for the End of LWOP Sentences

While California still tolerates sentences of life without the possibility of parole for juveniles, and Massachusetts has ruled them out entirely, there is variation nationwide in the use of life sentences—with or without the possibility of parole—in all cases and for all people.

An interesting, multi-state report by The Sentencing Project identifies a total of 160,000 people as serving life sentences as of 2012, with 50,000 of them serving LWOP sentences; 10,000 of them serving life sentences for nonviolent offenses; and over 10,000 of them serving life sentences for conduct that occurred before they turned eighteen.

Last year, we covered a report by the American Civil Liberties Union on the status of people serving LWOP sentences for nonviolent drug and property crimes. According to that report, we are in the minority of countries known to impose LWOP sentences at all, and we are virtually alone among our peers in doing so for nonviolent offenses.

Now comes news that Pope Francis has called for the abolition of LWOP sentences. At an October 23 meeting with representatives of the International Association of Penal Law, the Pope called life in prison a hidden death penalty and noted that the Vatican had removed it from its own penal code. He also called for the end of the death penalty and touched on overcriminalization, prison conditions, solitary confinement, and other issues.

Pope Francis said criminal penalties should not apply to children at all, and he denounced a growing tendency to think that the “most varied social problems can be resolved through public punishment.”

Should We Ever Sentence Children to Life Without the Possibility of Parole?

What’s wrong with possibilities?

Earlier this month, the California Court of Appeal held that a trial court could impose a sentence of life without the possibility of parole (or LWOP) on a 16-year-old boy even though the court could not rule out the possibility of rehabilitation.

He’s older now, but the boy was just sixteen years old when he committed the crime. And make no mistake: it was a heinous, horrible crime. If it weren’t then we likely wouldn’t be here. And there’s no way to sugarcoat it. According to the record, the defendant and a 16-year-old relative broke into a home to get money for drugs. They chose the home because they didn’t see a car around, and no one answered their knock on the front door. Inside, they encountered an elderly couple asleep in their beds, and they murdered them. They had brought a knife and baseball bat with them to the burglary, and they stabbed the man multiple times in the neck and beat him about the head and upper body. The woman was beaten severely all over her body, and the entire right side of her face was crushed. That’s all straight from the appellate opinion, so yes, it was bad. From the record, it’s unclear how much of the crime was committed by the boy versus the relative, but at trial, both boys were convicted by separate juries of first-degree murder with special circumstances for committing multiple murders during the commission of a burglary and robbery.

But then, the boy didn’t exactly have role models in life. One of his uncles was already serving a life sentence for murder. His paternal grandfather was an alcoholic, and his maternal grandfather died in prison following his conviction for molesting a 12-year-old relative. His maternal grandmother used speed and cocaine and beat the boy’s mother when she was young, and later, his mom got involved in gangs—as did her siblings—which is how she met his father, who was also a gang member. His mother got pregnant with him when she was 15, and his father described it as an unplanned and unwanted pregnancy. His mother continued to drink heavily after he was born, and he grew up in a neighborhood racked with gunfire and gang activity.

His parents separated when he was a baby, and he rarely saw his father again. His mom hooked up with another gang member, and she had four more children by that guy. The new guy used drugs, drank heavily, and whipped the boy with his hand or a belt.

One day, the mom and her new guy got into it really bad, so the mom took the boy and moved out to her own, unstable mother’s house in Bakersfield. They stayed there with the grandma and her 16-year-old son, who was technically the boy’s uncle and seven months older than him.

Two weeks later, the mom reconciled with her ex and left, but the boy stayed behind in Bakersfield. He had tangled with the ex before, and he was not happy about the reconciliation.

Within days, he and the 16-year-old relative committed the crime. Before that, the boy had his share of problems, obviously, but he had no criminal record.

At sentencing, the boy’s lawyer acknowledged his horrible, horrific crime but urged the court not to give up on him entirely, arguing that he was going to be punished severely even without an LWOP sentence. Under California law, the boy was subject to either an LWOP sentence or, at the court’s discretion, a sentence of 25 years to life. See Pen. Code § 190.5(b).

The court appears to have wrestled with its decision, and at one point, it agreed that it “certainly [could] not exclude the possibility in this case, perhaps a significant one,” that the boy had “some significant possibility of rehabilitating.”

In the end, however, the court emphasized the violent nature and circumstances of the crime, and it sentenced the boy to life without the possibility of parole.

On appeal, his lawyer argued that the Eighth Amendment allows an LWOP sentence for a juvenile only if the facts show that he or she is irreparably corrupt, and that wasn’t the case in light of the trial court’s statements about rehabilitation.

The court of appeal, however, rejected that argument, holding that a trial court could impose an LWOP sentence despite the possibility of rehabilitation, so long as it properly exercised its discretion by weighing all relevant factors, including the defendant’s youth. The appellate court reasoned that a trial court’s discretion under section 190.5(b) had survived all the recent federal and state supreme-court cases on juvenile punishment, including the following:

  • The Eighth Amendment prohibits the death penalty for those who are under 18 years old at the time of their crime. Roper v. Simmons (2005) 543 U.S. 551.
  • The Eighth Amendment allows LWOP sentences for minors only in cases of homicide. Graham v. Florida, (2010) 560 U.S. 48.
  • The Eighth Amendment prohibits mandatory LWOP sentences for minors even in cases of homicide. Miller v. Alabama, 132 S. Ct. 2455 (2012).
  • Under section 190.5(b), there is no presumption in favor of an LWOP sentence over a 25-years-to-life sentence. People v. Gutierrez (2014) 58 Cal. 4th 1354.

Even so, it seems to me that life without the possibility of parole is always the inferior choice.

A ray of hope remains in California. Based on a new 2012 law, a minor may now petition for the 25-years-to-life sentence after serving 15 years of an LWOP sentence. See Pen. Code § 1170(d)(2). If his petition isn’t granted, he gets two more chances to petition for resentencing after 20 and 24 years. See id. But then that’s it. And he has no right to a lawyer to help prepare his petitions. Plus, there are many qualifiers and disqualifiers. So it’s a hard road, but it presents a chance.

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