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April 6, 2008

Post of note to finish up Porter and move ahead on Hayes

I have these two new posts on my Sentencing Law and Policy blog that provide some different information and perspectives on some of the issues that have arisen in our discussions of Hyle v. Porter and US v. Hayes:

Though I doubt we will directly discuss either of these posts during our classes this coming week, I hope students will feel free to use the comments to react to these posts and/or to any other aspect of our class discussions in recent weeks.

April 6, 2008 in Class reflections | Permalink


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The ongoing discussion about sex-offenders has been among the most interesting in all of law school thus far. I’m starting to see now why states use them and why voter’s seem to gravitate to them. I think in the next few years it is likely a lot more jurisdictions will get rid of them due to the flaws we have seen in our discussions. They can actually make it more likely for a sex-offender to re-offend, can be overly-harsh, and most importantly, may violate the Constitution. I think these are all valid criticisms, however, I think that if and when these laws are removed they will be replaced with something that looks a lot more like our current drug sentencing.
Sure, prior offenders might have less restrictions, but I don’t think it would be unlikely for voters to replace residency restrictions with long, long, mandatory minimums. People simply won’t put up with sex offenders getting a slap on the wrist, or in Gerry Porter’s case, 2 slaps on the wrist and major hassle in court. While my opinion on the treatment and ideal legal status of sex offenders who have been released from prison has changed over the past few months, I fail to understand how certain “pervs” ever got back onto the street in the first place. People go to prison for a very long time for what I consider a less serious offense than what Gerry Porter did. Sooner or later, the public will wise up, realize it doesn’t really matter if Porter is 983 feet from the school or 1000 feet away, he probably should have been in prison longer – and that is the direction the policies will go in the long term.

I think the Heller decision COULD be the most interesting and important SC case in many years. I emphasize "could" because the SC will probably be slow and piecemeal about upsetting laws in many jurisdictions like NY, Chicago, DC, etc. As a gun-owner and an advocate for gun rights, I'm cautiously optimistic about a strongly worded opinion.
Obama painting himself as a 2nd Amendment advocate because he was a Con-Law professor - interesting strategy. I really don't think there are many voters to whom gun rights are important who:
1)Vote democrat in the primary
2)Think that because he was a Con-Law professor therefore the understands the issue and
3)Honestly believe Obama would protect their 2nd Amendment rights
Basically Obama is just riding the middle, by not taking a stance on Heller, agreeing there is a right to guns in some cases, yet he "has voiced support for the right of state and local governments to regulate guns." To me, that means he doesn't want to upset the status quo. He thinks that the state and local governments, like DC or Chicago can make laws regulating or even banning guns - not exactly what voters who actually care about the 2nd Amendment want to hear. This reminds me of John Kerry in Ohio 2004:"Can I get me a hunting license here?" Shocking that he lost Ohio by over 100,000 votes.

Quite frankly, the way Obama talks about “hunter’s rights” and “sportsmen’s rights” is condescending. He obviously has no grasp of what the issue really is – I don’t care if he went to Harvard Law – the 2nd Amendment doesn’t just benefit people who hunt. It’s purpose is to limit the government’s power, unless, like some Con-Law professors, you ignore the text of the Constitution and solely focus on what the 9 justices think it means.

Posted by: Scott Rowley | Apr 7, 2008 9:53:59 PM

I agree comepletely with Scott and can't see this working successfully in the general election. 2nd Amendment supporters (nice label, eh?) are unlikely to fall for this rhetoric. At the core, voters who value this issue would not find a DC-type gun ban acceptable and this is a line that he can't tip-toe. If he doesn't tip-toe (and comes out against restrictive regulations) then he will be seen as pandering or flip-flopping on important issues which has become a bit of a 3rd rail in national politics (right or wrong-see John Kerry, Mitt Romney, etc).

Come this fall his voting record will come back to bite him on this issue. One sympbolic vote against draconian gun confiscation doesn't rehabilitate his stance. McCain will certainly raise it in this part of the country.

Post-Heller litigation should be interesting. I believe SCOTUS has said it is ok to prohibit felons from voting. I would say that voting is a pretty fundamental right. On the other hand it does seem too restrictive to prohibit all convicted felons from owning a firearm. Perhaps a middle-ground such as prohibiting violent offenders from owning firearms or a restriction on the type of firearm (handguns?) would be best.

Posted by: Nathan | Apr 8, 2008 10:55:19 AM

An interesting sentencing option for sex offenders in Louisiana.


Posted by: Chad | Apr 8, 2008 3:29:16 PM

Nathan - I agree that McCain will make this part of his campaign and have a field day with it against Obama or Clinton. It could be even more interesting in the campaign depending on how Heller comes out, especially in terms of what kind of Supreme Court Justices each candidate will claim they would appoint.

Chad - I have a hard time seeing how non-voluntary castration, chemical or physical, is not a cruel and unusual punishment. While I understand that this issue is highly related to the hormones and chemicals involved, I don't see much of a distinction between castration and a lobotomy(which I'm assuming is patently unconstitutional). It seems that if hanging is unconstitutional as a form of death penalty (as is, presumably, beheading by guillotine) then castration is too. What about cutting off the hand of a thief, or chemically maiming a theif so they were less likely to steal? What about branding? I'm interested to hear other people's views on this.

Other states have had this idea too:

Posted by: Scott Rowley | Apr 8, 2008 5:24:04 PM

I agree completely with Nathan, Obama is not going to be able to hide from his record much longer. Up to this point he has played a middle of the road approach to most issues, including trying to walk the line on the 2nd Amendment. However, compared to his voting record this seems to be pretty hollow rehetoric. Obama has been rated one of the most liberal memebers of congress (http://nj.nationaljournal.com/voteratings/), while I don't personally know much about the politics of this publication, this is going to be an issue in the general election.

There's an old saying, actions speak louder than words. I think this is going to be a central theme of the McCain campaign's attacks on Obama (or Hillary, she has very similar stances and rehtoric).

As for the 2nd amendment generally I can see sentencing laws and gun ownership restrictions for violent felons surviving any level of scrutiny that the Supreme Court decides to use. It would easily pass rational basis and I think strict scrutiny wouldn't be too hard of a standard to meet when keeping weapons from violent felons. And I doubt that anyone or any group, including the NRA, is going to challenge this. Gun owners by and large support these type of restrictions as much as anyone else. Typically we seek stricter punishments for those that commit crimes with guns, precisely because they are abusing the freedoms of the 2nd amendment and endangering the public. Besides lobbying work the primary focus of the NRA is safety programs and I would wager this would take on a greater focus as the lobbying becomes marginally less important. The question of non-violent felons becomes much more difficult and is really going to depend on the level of scrutiny and how the justices actually frame the right. I'm withholding my judgment on this one until I read the opinion.

Where we will see action is in states and cities with categorical bans on ownership. That is if the SC decides to use strict scrutiny. If they use rational basis, gun bans, like most legislation that is challenged under a rational basis test, will likely be upheld by most courts. However, strict scrutiny will be a much harder standard to justify a ban on single mothers or senior citizens having a gun in their homes for self defense.

But this will only come up when a case makes it all the way through the system challenging a state or local gun ban. The Heller case is only dealing with D.C., which isn't a state, therefore it is unlikely that he Supreme Court will go so far as to use the 14th amendment substantive due process power to incorporate the 2nd amendment to the states in this case. It will likely be several years before we see that step, which would leave state and local laws relatively unchanged.

Depending on the actual vote, the incorporation issue could come down to who the next president appoints to the bench. I doubt we'll hear much on the campaign trail about incorporation of the 2nd amendment but it will be interesting to see if Obama stays true to his support of the 2nd amendment as an individual right or if his voting record will shine through when talking about whom he would appoint. There I finally made it back to the issue at hand.

Posted by: Jordan Carr | Apr 8, 2008 11:14:51 PM

Like Scott, I too have found our class discussions about sexual offender residency requirements to be very interesting. Before this semester I was aware of the residency requirements but I never thought about them from the perspective of a "perv." I guess the GA legislature was right about the whole "takings" problem. It just never occurred to me that the residency restrictions would be much of an issue because it just made sense to restrict where convicted sexual offenders could live in relation to schools, etc. Looking at the statute from a different "who" perspective has changed the way I think about the requirements though. I do think that there should be some type of residency restrictions for convicted sexual offenders, especially those who committed crimes against minors, but the legislature does need to find an effective and fair way to reconcile protecting the rights of all citizens, including those that have been convicted of a crime.
Our discussion has also been reminiscent of my time working with the federal government and taking part in our legislative process. There is so much involved in crafting a bill. In addition to determining who will be affected by the legislation, how it will be implemented, and any repercussions for not complying with the law, the legislators are equally concerned with the actual language and grammar of the proposed legislation. Changing the position of a word, changing its grammatical tense or changing a period to a comma can affect the way in which the statute will be interpreted and thus enforced. It's so interesting to me that something so small as comma placement can have such a great impact on our society!
These are just some of the things I have been thinking about throughout our course. Looking at things from different “who” perspectives has really added to my law school experience.

Posted by: Page | Apr 9, 2008 12:36:22 AM

Chad's post reminded me of an old article from the Washington Post about castration as a treatment for sex offenders.

Here is a link to the article. You might have to register with the Post to access it. Sorry about that!


Here's a quick excerpt from the article's first page. The person quoted in the passage is an inmate who castrated himself in prison.

Jenkins, 63, doesn't flinch when he talks about it now. "Castration has done precisely what I wanted it to do," he said. "I have not had any sexual urges or desires in over two years. My mind is finally free of the deviant sexual fantasies I used to have about young girls."

He spoke with the clinical cool of a surgeon as he tried to explain his pedophilia during a rare interview in a guarded room of the Virginia Center for Behavioral Rehabilitation, the sex offender treatment center where Jenkins was sent. The Petersburg facility is part of a new way the state is trying to keep sex offenders off the streets: Identify the most dangerous before they are released from prison and ask a judge in civil court to commit them to a treatment facility even after they have completed their sentences.

Jenkins readily admits that the prospect of being confined indefinitely partly prompted his drastic action three years ago. But he also insists he did it to prevent himself from victimizing another child.

"I'm all for castration for certain sex offenders," he said. "I think it would do a lot to prevent recidivism and the amount of money we have to spend on treatment centers like the one I'm in."

Posted by: T. Nittle | Apr 9, 2008 10:22:05 AM

I disagree that a state legislator can vote to reverse course on residency restrictions for sex offenders. Any legislation that removes this law from the books without a harsh replacement will simply be translated as:

“While Rep. X says he is tough on crime, when he had the chance to vote in Columbus, Rep. X voted to allow convicted rapists to live next to our children’s schools.”

Headlines and campaign advertisements have no room for legalese or lawyerly explanations. This type of issue plays off the fears of the voting constituencies, and I do not think that fear in this instance is likely to subside anytime in the near future.

On a “takings” note, I came across a recent KY effort where legislation has been introduced that would allow the government to take all real and personal property (think computers, cars, homes) that may have been used in a sex crime against a minor. The property would then be auctioned off and the funds obtained would go to prosecutors and police.


Posted by: C Ingram | Apr 9, 2008 11:31:43 AM

Doh, Prof. Berman already linked to that Washington Post article in one of the links Scott referenced. Sorry about the double post!

While I personally think that castration would be cruel and unusual punishment, how far out of line is castration with society's current sensibilities regarding sexual predators.

Just to play devil's advocate, assume for a moment that castration does prevent recidivism and also assume that it is does not violate an individual's personhood like a lobotomy. A state would save money because they would not need to incarcerate these individuals, and offender monitoring costs would be greatly reduced. The offender would also have the ability to rebuild their life without the public stigma typically attached to sexual offenders, nor would the state have to deal with all the constitutional issues surrounding residency issues. The offender would have literally paid their debt to society and be allowed to rejoin society with a clean slate.

It's definitely a quite the Siren's song. Besides being extremely frighteningly utilitarian, it fails to take into account female sexual predators.

Posted by: T. Nittle | Apr 9, 2008 11:43:00 AM

I think the Kentucky forfeiture is a much better idea in theory than residency restrictions. My main worry with it, however, is what happens when the forfeited property has an innocent co-owner, such as that case we read in Property about the father soliciting a prostitute in the family car?

The Kentucky statute proposal handles this in an interesting manner. At first read, if a particular property cannot be divided, then the perpetrator would have to forfeit other property up to the value of the property which cannot be forfeited (like a jointly owned family home). The bill is also interesting in that it explicitly applies to people who solicit undercover officers acting like minors.

(click on the HB 210) to download the statute)

Posted by: T. Nittle | Apr 9, 2008 12:02:43 PM

Following up on my question earlier, there are no congressional findings in the domestic violence gun ban "Lautenberg Amendment." Why?


It was included in a huge appropriations bill in 1997. In other words, it was slipped in to a bill that has absolutely nothing to do with domestic violence. So it is Congress' fault that they have no clear statement on why they wanted to enact the law. Furthermore, President Clinton's signing statement does not address the issue.


Posted by: Michael Wilt | Apr 9, 2008 3:17:56 PM

I wasn't really sure where to post this, so if this seems an inappropriate spot my apologies. That said, since we are in a class dealing with legislation and have talked a good deal about sex offenders I thought the following article might be of interest. It deals with a bill being sponsored in Maine that would make it either a C or D class felony if a person was (quoting from the article) "arrested for viewing children in a public place."


Interestingly, the wording of the bills as they currently stand don't seem to go nearly as far as this article led me to believe (then again they're being amended and who knows if they'll even pass).


Apologies for the thread hijacking

Posted by: Sam | Apr 13, 2008 1:16:23 PM

This article, entitled "Obama Lashes out at Clinton", should be called "Obama Puts Foot in Mouth". It is a continuation of the 2nd Amendment rhetoric:


Oh, how different things are when Obama is in San Francisco for a fundraiser, compared to Pennsylvannia campaigning. In what I think is a real eye openning quote, Obama said, talking about how hard it is to win-over blue collar voters:

"It's not surprising, then, they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations."

Are you kidding me? Pennsylvannia blue collar workers are supposed to read that and think Obama is their man? This is outright insulting and offensive. I'm shocked he not only hasn't apologized yet, but is defending the comment. Someone needs to tell Obama you don't win over blue collar workers by horribly stereotyping them. He's rolling up "their" views on gun control, religion, immigration and trade into one package AND demeaning those views, as if they weren't valid, heart-felt beliefs, but are merely examples of "their frustrations". Oh, and he insinuated that the very people he's talking about trying to win over votes from are bigots("antipathy to people who aren't like them").

But hey, he was a Con-Law professor, so who am I to second guess?

Posted by: Scott Rowley | Apr 14, 2008 8:21:03 AM

This is a rather disturbing article from California about sex offenders that were caught living in homes used for child day care and foster care.


Posted by: Chad | Apr 18, 2008 6:01:36 PM

Does anyone else feel that residency restrictions just move the problem to a different neighborhood? Unless sex offenders are given their own neighborhood away from children and families, someone will be in close proximity and arguably at greater risk. Since this option is not realistic or feasible, it appears that these restrictions may be a little too extreme. I don't want my kids growing up near sex offenders or being at risk of being abused, but having sex offenders register and notify neighbors may be the best way to address this problem.
As for it being a taking, it does appear that the home would use all value and benefit to the sex offender owner.

Posted by: Adam | Apr 22, 2008 7:08:53 PM

Does anyone else feel that residency restrictions just move the problem to a different neighborhood? Unless sex offenders are given their own neighborhood away from children and families, someone will be in close proximity and arguably at greater risk. Since this option is not realistic or feasible, it appears that these restrictions may be a little too extreme. I don't want my kids growing up near sex offenders or being at risk of being abused, but having sex offenders register and notify neighbors may be the best way to address this problem.
As for it being a taking, it does appear that the home would use all value and benefit to the sex offender owner.

Posted by: Adam | Apr 22, 2008 7:09:26 PM

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