A Partial Fix to the 2G2.2 Guideline

A paper written by Brent E. Newton, adjunct Professor of Law, American and Georgetown Universities and who served as Deputy Staff Director of the United States Sentencing Commission from 2009 until 2019 and was the primary staff author of the Commission’s December 2012 report to Congress concerning federal child pornography offenses, discusses how he believes that the guidelines can be partially fixed without Congress having to get involved. However, due to the lack of a quorum, the Sentencing Commission cannot meet for regular business until they have enough members. Here is the introduction to the report.

Except for the criminal penalties for crack cocaine offenses, no specific federal non-capital penalty structure has been more widely criticized than USSG section 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. sections 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography (henceforth, “non-production offenses”). Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012, “Federal Child Pornography Offenses”, made a compelling case for changing both the guideline and, to a lesser degree, the statutes. The Second Circuit interpreted the Commission’s report as “effectively disavow[ing] section 2G2.2.”

Although the best solution to the problem with section 2G2.2 would be to completely scrap the current guideline and rewrite it from scratch, such a change by the Commission would require congressional authorization. As I discuss below, Congress appears unwilling to allow the Commission to completely rewrite the guideline. However, as I also explain, there is a partial – and quite significant – fix available without congressional permission. That partial fix could be best accomplished by the Sentencing Commission in an amendment to section 2G2.2. If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker [554 US 220 (2005))] and Kimbrough v. United States [552 US 85 (2007))].

In his report, Newton goes on to discuss several changes that he proposes that circumvent the congressional mandates from changing some of the categories, moving some and doing other small changes. For example, the current guideline has two base offense levels: (a)(1) 18, if the defendant is convicted of 18 U.S.C. section 1466A(b), section 2252(a)(4), section 2252A(a)(5), or section 2252A(a)(7) or (b) 22 otherwise. It also goes on to state: (b)(1) If (A) subsection (a)(2) applies; (B) the defendant’s conduct was limited to the receipt or solicitation of materials involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels.

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A Serious Win for Probationers

Recently, the Massachusetts Supreme Court struck down a GPS monitoring a level one non-contact sex offender on probation. Though the Government argued that they needed the condition to ensure that the defendant abided by all the conditions of his release, the Court rejected this argument. GPS monitoring constituted a search-an especially severe one-that overly infringed on the probationer’s rights for the Government’s stated goal.

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Budgeting for Prisoners

One of the hardest thing for anybody to do is budget. This isn’t just a problem with prisoners, but society in general. We have in our mindset about buying things when we want them and not when we can afford them. Financial guru, Dave Ramsey, has put together his “baby steps” to show everyday Americans (and foreigners) how to get out of debt, be prepared for a crisis and invest in your future.

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Preparing Your Release Preparation Folder Part 3

In our final post in regards to preparing your release preparation folder, the largest portion of your folder will be your medical records. Granted, you may not need to know every little thing in your file, but it’s good to have it all just in case. One thing I do is every year, I send a cop-out to the medical records department at my prison and ask for my records from the previous year. I keep track of all the dates, so I’ll know when one ends and the other begins. The reason for this is you can get up to 200 pages at no cost. After that, there are additional fees and most people will have more than 200 pages.

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Putting Together Your Release Preparation Folder

For every person that is being released back into the community, the B.O.P. likes for these individuals to have a release prep folder that they can take with them wherever they go. That way, no matter what situation you encounter, you will be ready. The major reason for this is for employment purposes. However, it can be used to obtain your driver’s license, apply for government benefits and more.

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Stop Pretending and Start Attending

One of the requirement of the Bureau of Prisons is to offer a mock job fair. This allows inmates nearing the end of their sentence to gain important skills in resume preparation, filling out a job application, searching for careers and the ever-scary interview process. While on paper, this sounds great, the majority of the mock job fairs I have attended over the years consist of education staff members “pretending” to be employers.

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SMART Symposium Proves What We Already Knew

First off, I want to appologize for missing Friday’s post. I know I told everyone that I would be going to twice a week, but I was so busy with other things, it just slipped my mind. Here is this week’s post.

On July 17, SMART held a national symposium in Chicago on sex offender management and accountability. For those who don’t know, SMART is an acronym for the Office of Sex Offender Monitoring, Apprehension, Registration, and Tracking, a federal unit that was created by the Sex Offender Registration and Notification Act that helps “enhance” public safety. During the event, members from various groups, collectively known as “The Alliance” and included Women Against Registry, Once Fallen, SOSEN, CURE-SORT, FAC, ACSOL and others wore t-shirts emblazoned on the back with “The Registry Does Not Protect Children.” Needless to say, they received quite a bit of attention during the event.

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New Lawsuit Targets Missouri Sex Offender Registry

It was recently pointed out to me that a federal lawsuit has been filed in the Western District of Missouri arguing that the Missouri Sex Offender Registry constitutes cruel and unusual punishment, not just for those on the registry, but their family members as well who were never convicted or even charged with a crime. The suit was initially filed in May, however, it was only brought to light recently.

According to the Columbia Tribune, the suit which includes 25 John and Jane Does, many of which are the children of registrants against Missouri State Highway Patrol Superintendent Col. Eric Olson, Technical Service Commander Maj. David Flannigan and Criminal Justice Information Services Director Capt. Christopher Jolly. In the initial suit, the plaintiffs claim that “the registry results in retribution for past offenses more than the public safety it was originally intended to promote.”

Some of the examples include a women who could not assist with a food drive with her church, a man whose children suffered hate speech so often that he was forced to move and to make matters worse, his wife even took her own life. According to Debra Grund, Treasurer of Women Against Registry (WAR), some registrants are being punished for crimes committed decades ago. “Some of these people did something when they were 19 or 20 years old and paid their debt to society and at 40 they’re still dealing with this and their families are still dealing with this.”

Last year, Missouri implemented a three tiered system that allows some recipients to petition for their removal after 25 years, as opposed to the previous duration of life. Many of the petitioners in this case are “serving” a life sentence.

We will continue to monitor the progress of this suit and keep you informed of any additional details. In another interesting case involving the registry out of Tennessee, a suit filed by a “John Doe”, a registrant argued that registry violated the ex post facto and due process clauses of the Constitution.

Doe was charged with several sex offenses involving a minor victim, described as eleven (11) years old, in the State of North Carolina. On August 15, 2006, Plaintiff pled guilty to the charge of Indecent Liberties with a Child. As a consequence of his guilty plea and conviction, Plaintiff was required to and did register as a sex offender on the State of North Carolina’s Sex Offender Registry. After relocating to Tennessee, Plaintiff was required to and did register as a sex offender on the State of Tennessee’s Sex Offender Registry. Plaintiff has continued to report annually with the Registry and complied with the requirements of the Act.

In 2014, Tennessee added an amendment that required any offender whose victim was 12 years of age or less would be required to register for life. Previously, the Plaintiff was forced to only register for 10 years. The plaintiff stated that he had an employer who knew of his status and still continue to employ him, as well as even working with him by having other employees make deliveries to schools and such. Upon the enactment of the 2014 amendment, the plaintiff’s employer terminated him because they were no longer willing to accommodate him indefinitely. The plaintiff then filed suit claiming that the registry was punishment and violated the ex post facto clause and that he was not given notice of the change to the duration of his registration period, it also violated his due process rights.

To summarize the conclusion the case, the order states “For the reasons set forth herein, Plaintiff’s motion for summary judgment will be GRANTED in part as to Plaintiff’s Ex Post Facto claim and DENIED in part as to his due process claim.

We will continue to follow this case as well.

Finally, last week on Fox News’s Tucker Carlson, the host and longtime First Step Act opponent Sen. John Kennedy (R-LA) complained that the FSA released several violent offenders and sex offenders. According to Fox News, the FSA released 500 inmates who committed weapons or explosives crimes, 250 sex offenders, and 60 or 70 who were guilty of homicide or aggravated assault.

Previous numbers show that the majority of those released were already serving some type of community sentence, such as in a halfway house or home confinement. According to the B.O.P. website, on July 18, there were 8,291 prisoners in residential reentry centers and 2,193 on home confinement. A week later, there were 7,604 in residential reentry centers, a drop of 687 and 1,683 on home confinement, a drop of 510. While B.O.P. policy allows everyone the eligibility of home confinement, in reality, we all know that violent offenders and sex offenders are not going to be placed directly on it and any person that fits into one of the above categories would have been released within the next six months anyway. In addition to both of those, several news outlets have also reported that a large majority of those were also deportees who have been sent to immigration facilities.