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.

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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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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.

Thanks for the PATTERN with WAR

Hey Guys,
A weird title, but I combined three different messages, so I thought it was a bit catchy. You’ll see what I mean as you read on. A lot of you have asked about why I stopped writing twice a week. The main reason was because of not having email access for a while. Since I got it back, I’ve been slacking. So beginning next week, I will be returning to two posts per week. One on Tuesday and one on Friday. Also, I want to thank Freebird Publishers for posting our blog in their 2019-2020 edition of the “Inmate Shopper”. If you appreciate everything we do, please add the email Diane@FreebirdPublishers.com to your Corrlinks account and send her a review for Back So Soon! Granted, it won’t be until next July before it’s published, but let’s get as many good reviews to get us to a 10 rating! Without all of your help, none of this would have been possible.

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Does Being Rich Even Help Sex Offenders Get Off Easy?

On July 6, billionaire Jeffrey Epstein was arrested in New York on sex-trafficking charges that involve allegations going back nearly twenty years. According to the indictment, Epstein is accused of having his assistants find underage girls to perform massages and then forcing them into sex acts. While this is a heinous crime, it is not Epstein’s first go round with the legal system. In fact, he is already a registered sex offender.

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Justices Tell Government to Basically, Shut Up!

It was encouraging to read the oral argument transcripts in Haymond and see the Solicitor General take a drubbing. He was unable to get out a single sentence before the Justices interrupted him to tell him he was wrong. And the hearing never improved for him thereafter!
For decades, the Government has gotten so used to judges accepting the parole/probation/supervised release comparison without a question that the Solicitor General was completely unprepared for the repeated and forceful rejection of that claim. Time and time again, he returned to the tried and true, only to be told that the two were nothing alike. Not a single one of the Justices bought what he was selling.
Seemingly citing the Eaton briefs, the Justices noted that, unlike parole, the releasee has done all his time; he has been given no benefit of early release. Whereas termination of parole is merely the loss of a benefit, revocation of release imposes a new penalty. It seemed like the Court rejected the idea that this was part of the penalty for the original crime, calling it both an extension and a new penalty. Never before have we had such a system, and the fact that a conviction is valid does not mean release is too.
No matter how far the Court ultimately goes in its opinion, the Haymond case is a long overdue look at the legality of supervised release. As we examined in the past months, release has largely adopted the questionable practices of parole despite being on a different legal standing. The Eighth Circuit, seeing the writing on the wall, has already implemented new legal protections in release hearings. (United States v. Sutton, No. 17-3195 stating that while a revocation hearing is not a criminal trial, the Federal Rules of Civil Procedure give a releasee the opportunity to cross-examine witnesses.)
Justice Alito, seemingly the only one against this reform, bemoaned the fact that the Court was spelling the end of supervised release. We can only hope!
In two other big cases, the Georgia Supreme Court has ruled that lifetime GPS monitoring of sex offenders constitutes a search and thus is illegal under the Fourth Amendment (Park v. Georgia, No. S18A1211). In another big ruling, the Third Circuit Court of Appeals ruled that sex offenders under Pennsylvania registration laws are “in custody” for habeas purposes. (Piasecki v. Court of Common Pleas, No. 16-4175).
Both of these also showcase that the constitutional protections that everyone is entitled to, including sex offenders, are still available. I am particularly interested in the Third Circuit ruling where basically the Court has said that with all the restrictions a sex offender must abide by, it is the equivalent of being incarcerated practically.
We will continue to monitor both of these cases and several others. In closing, I want to say thanks to two other sites for helping provide us with news and case updates. One is Wayne Dowdy’s “Straight from the Pen” blog located at https://straightfromthepen.wordpress.com and the other is Doug Berman’s Sentencing Law and Policy blog located at http://sentencing.typepad.com/sentencing_law_and_policy.
Have your family check them both out as they are full of valuable information as well.
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BackSoSoon is a blog dedicated to helping sex offenders successfully reintegrate back into society. Our Corrlinks address is backsosoonblog@gmail.com and our website is www.backsosoonblog.com.
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Supreme Court Claims Certain Violations May Be Unconstitutional

On Tuesday, the Supreme Court heard oral arguments in United States v Haymond. As we have mentioned several times the background of Haymond’s case, we won’t go into full detail. However, because of a previous sex offense, Haymond was violated under 18 USC 3583(k) which provides for a mandatory minimum five year violation because he had additional CP on his phone and possibly up to life.

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Is Supervised Release Running on Fumes?

There have been several high profile, compelling cases in recent days.

The first, going up for oral argument now, is United States v Haymond. Haymond, on supervised release for a porn offense was violated for having more child porn in his internet cache. Because the evidence was insufficient to convict him, it was treated as a violation instead and he was sentenced to five years. Without the commission of another porn offense, it would’ve been a maximum of two years. Now, the court is hearing oral arguments that this scheme denies a releasee due process and violates Booker.

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The Dark Figure of Sexual Recidivism

With endless research now disproving the long held myth of high sex offender recidivism and even Attorneys General calling for the registry’s abolishment, a new study seeks to fan the dying flames of this once white hot hysteria. The paper makes the claim that all previous studies of sex offenders are flawed because they underreport the actual recidivism, as they only deal with those rearrested, and most reoffenders are never rearrested.

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