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January 25, 2009

Two intersting opinions on sex and drugs from two different appeals courts

This week we will start to apply some of our lessons about the challenges of sentencing theory (Chapter 1 of our text) to the story of who sentences (Chapter 2 of our text).  To get a running start on this topic, and also to further everyone's interest in sentencing stories surrounding sex offenders and drug offenses, I offer here links to two really fascinating opinions handed down this week from two different appellate courts.  Though reading these new cases is not technically "required," I will happily make either (or both) of these cases the focal point of discussion in coming classes if students express an interest in them.

First, from the First Circuit, we get US v. Perazza-Mercado, No. 07-1511 (1st Cir. Jan. 21, 2009) (available here), which covers (frequently litigated) issues surrounding broad conditions of supervised release for a federal sex offender. The start of the majority opinion sets out the basic issues:

This case requires us to address the validity of two conditions of supervised release imposed on a defendant convicted of unlawful sexual contact with a minor.  The first condition prohibited the defendant from having any access to the internet at home during the fifteen-year supervised release period. The second condition prohibited the possession of pornography generally.

Second, from the Wisconsin Court of Appeals, we get Harris v. Wisconsin, 2009 Wisc. App. LEXIS 39 (Wisc. Ct. App. Jan. 21, 2009) (available here), in which a Milwaukee man convicted of selling cocaine got his sentence reversed because the judge who sentenced him referred to the man's "baby mama" and asked him where "you guys" find women to support them while they stay home.

January 25, 2009 in Interesting new cases | Permalink


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I am so excited about a sex offender case coming out with the right answer rather than just getting so caught up in the fact that it is a sex offender and the courts must be tough on sex offenders!!! Hooray!!

I think US v. Perazza-Mercado is a good example of how many sentences imposed on sex offenders do not fit the offense. Here, the defendant was not allowed to use the internet for 15 years and was not allowed to have pornography. The offense committed by the defendant in no way involved the internet or pornography. How is a restriction on internet and pornography going to deter him or prevent him from committing another crime? It just does not make sense. Without internet or porn, the defendant could still go find another 9 year old girl and touch her inappropriately. A restriction such as prohibiting him from being in contact with adolescents is more appropriate (which was imposed by the court too).

The one unfitting sentence for sex offenders that really ticks me off is having registration and notification requirements for sex offenders who commit their offenses upon friends or family members, not upon strangers. How is telling the public that there is a sex offender lurking near going to prevent a sex offender from harming another one of his friends/family members who presumably already knows about his sexual offending tendencies?

This case hits my frustrations on the head. I am just glad the appellate court got it right.

Final Thought - what if the defendant wanted to turn his life around and go back to school. He surely could not be in a Berman or Dressler class that requires internet posting!!!

Posted by: Jeanna | Jan 25, 2009 4:59:13 PM

Some comments on these cases:

As far as the first circuit case, I feel torn in a way that is probably pretty common for sex offender cases. Specifically, on just a base reactionary level, I feel absolutely no sympathy for the appellant. In my opinion his home internet and pornography access are not a big deal and he should simply get over it. That being said, I do not believe that the criminal justice system should sentence people on this base reactionary level, and I do agree with the court’s basic reasoning. In particular, from the facts given it does not seem like there is a real connection between these punishments and the actual offense that the appellant plead guilty to, and that the punishments were likely too broad.

For the Wisconsin case, I think the main point this decision should make to those who read it, is that in terms of sentencing the appearance of the criminal justice system does matter. What I mean by this is that it is important that the justice system, even if it is operating neutrally, also appear neutral and dignified. I think the reasonable person would be stretching the facts to conclude that the comments made by Harris’ sentencing judge proved that the judge was using race as a factor in sentencing. That being noted, the reasonable person might very well conclude due to the judge’s glibness that there was a possibility that race was a factor, thus casting doubt on the process.

Posted by: Zach | Jan 30, 2009 2:09:05 PM

As far as the sex case goes, my first reaction is that a home internet ban could be a major deterrent, although I agree with the court that the ban was overly broad, especially considering the prevalence of the internet today. I also wondered whether the ban would have prevented him from checking his email on a Blackberry at home.

I thought the drug case was a closer question of fact and law. Did anyone else notice the Jackson v. State case mentioned in the opinion? I have lived in either Columbus or Cleveland for the last nine years and I have yet to confront anyone with a sawed off shotgun, but I guess that is what city people are supposed to do.

Posted by: Shawn | Jan 30, 2009 9:10:53 PM

Hi to all..
I really think that I think US v. Perazza-Mercado is a good example of how many sentences imposed on sex offenders do not fit the offense. Here, the defendant was not allowed to use the internet for 15 years and was not allowed to have pornography

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