View decisions by the Federal Circuit States belong to.
Wednesday, October 29, 2014
People v Temelkoski
A sex offender who no longer has a conviction on his record after successfully completing probation must still abide by registry requirements, a Michigan appeals court ruled.
Boban Temelkoski was 19 in 1994 when he was charged with second-degree criminal sexual conduct related to his kissing and groping of a 12-year-old girl.
Temelkoski pleaded guilty and served three years of probation under the Holmes Youthful Trainee Act (HYTA), at which point the case against him was dismissed.
Though Temelkoski does not have a conviction on his record, Michigan law still requires him to register as a sex offender for life under the Sex Offender Registration Act (SORA).
He sought removal from the sex-offender registry in 2012 based on the purported "cruel or unusual" nature of punishing him of something not memorialized by a conviction.
Since SORA now contains a "consent exception" for youthful offenders in a so-called "Romeo and Juliet relationship," Temelkoski also characterized the sexual encounter between him and the 12-year-old as consensual.
Tuesday, October 21, 2014
USA -v- McLaurin
You don’t often see federal courts striking down conditions of supervised release as violations of substantive due process. But you don’t often see the federal government wanting to hook up a device to a man’s penis, make the man watch pornography, and see what happens. It sounds a bit… 1984 (affiliate link).
I couldn’t help noticing this opinion, given its unusual nature and its focus on the peen. I’m sure you’re all dying to learn more about the procedure known as “penile plethysmography.” (The good news: it’s not as bad as a penile embolism or penile degloving.)
You know you want to see what those Second Circuit judges are hiding underneath their robes. Let’s dig a little deeper (into the opinion), shall we?
Having a sex-related offense on your record can really make your life unpleasant, for years after you’ve served your time in prison. It could, for example, cause you to lose your summer associate position at a top firm (even if your only “crime” was having a consensual relationship with a younger student while in high school).
Take the case of David McLaurin. He took topless photos of his teenage daughter, at his daughter’s request, to advance her modeling career. For this offense, he got sentenced to producing child pornography. He served his prison sentence (most of which was suspended).
Years later, he ran into problems complying with the federal Sex Offender Registration and Notification Act (SORNA). After pleading guilty to a single count of violating SORNA, he got sentenced to fifteen months in prison and five years of supervised release. The sentencing judge imposed, over McLaurin’s objection, the condition that he participate in sex offender treatment that could include penile plethysmographic examinations.
What’s that? You can check out the surprisingly detailed Wikipedia article, or you can read the Second Circuit’s opinion (jointly authored by two out of the three judges on the panel, Judge Guido Calabresi and Judge Barrington Parker; I wonder why they didn’t just make this a per curiam) (citations omitted):
Penile plethysmography is a procedure that lasts two to three hours and “involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.” The Government disputes whether, as others have described, the test requires a subject to masturbate to establish a baseline for measurement.Here at ATL, we have no problem with hand-to-wiener contact. Indeed, masturbation-defense law is a growing practice area, providing job opportunities for desperate law school graduates.
But masturbating while being hooked up to a machine and watched by others doesn’t sound like much fun. And it doesn’t have a great pedigree either:
The procedure was “developed by Czech psychiatrist Kurt Freund as a means to study sexual deviance,” and it was “at one time used by the Czechoslovakian government to identify and ‘cure’ homosexuals.”And we all know how well those efforts go.
If you’re skeptical of penile plethysmography (anything that hard to spell has got to be sketchy), the Second Circuit agrees with you. Here’s the meat of the panel opinion:
- “[T]he procedure inflicts the obviously substantial humiliation of having the size and rigidity of one’s penis measured and monitored by the government under the threat of reincarceration for a failure to fully cooperate. And even if the machine could accurately monitor and record the extent or intensity of a convict’s prurient interests (a proposition about which we have serious doubts), the goal of correctional treatment during supervised release is properly directed at conduct, not at daydreaming.”
- “[W]e see no reasonable connection between fluctuating penis size and public protection — certainly none strong enough to survive the careful scrutiny that we give to unusual or severe conditions of supervised release.”
- “[W]e also find it odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction. In short, the Government offers no compelling justification for plethysmography in the name of deterring crime.”
Wednesday, October 8, 2014
TAMPA — One day in September 2012, lawyer Michael Maddux walked out of a Hillsborough courtroom in shock. He couldn't believe what had just happened to his client, a middle-aged man with no criminal record who, prosecutors said, obsessively downloaded and categorized more child pornography than anyone else they had ever come across.
Peter Barnhill, 44, had more than 400,000 ghastly images on his hard drive. But there was no evidence he had ever touched a child, and he had passed a polygraph exam attesting to that. A psychologist who specializes in examining sex offenders pronounced him "low risk." Maddux thought his client might get, at most, five years in prison. Hillsborough Circuit Court Judge Chet A. Tharpe gave him 22.
"This child pornography phenomenon, if you will, is becoming an epidemic," Tharpe said in an emotional speech from the bench. There was a 50-50 chance that Barnhill would molest a child one day, he said, citing a study from 2011. "That is scary," he said. "We're not talking about a fantasy."
Months later, in a sharply worded decision that could affect whether Tharpe continues to hear child pornography cases, Florida's 2nd District Court of Appeal ruled that Barnhill would have to be resentenced, and by a different judge. The court faulted Tharpe for "abusing his discretion" by lumping Barnhill in with child molesters and rapists. The veteran jurist had implied that he would never consider giving a lighter sentence in a child pornography case, regardless of the facts.
"Even to the most casual observer, it could not be believed that Barnhill received a hearing in a dispassionate environment before a fair and impartial judge," the court wrote.
The decision was "en banc" or "entire bench," a rare unanimous ruling from all 13 appellate judges.
Friday, September 26, 2014
Wallace -v- State
In this case ("Wallace"),1 nine individuals ("Plaintiffs") claim that New York State sex offender registration requirements and residency restrictions punish them retroactively for offenses they already committed and, thus, violate the Ex Post Facto Clause of the Constitution (Article I, Section 9, Clause 3); and that similar residency restrictions under County and Town laws are not only unconstitutional, but preempted by state law. (Dkt. No. 5 ("Am. Compl.") ¶¶ 1-3.)
Plaintiffs also claim that, as a result of the County residency restrictions, they are, or have been, homeless and relegated to County-run trailers, subject to living conditions that infringe upon their Fourteenth Amendment right to equal protection under the law. (Id. ¶¶ 45-46.)
Defendants—the State of New York (the "State")2; the County of Suffolk (the "County") and Susan Westergaard, in her official capacity on behalf of the Suffolk County Department of Social Services3 (the "County DSS") (collectively, the "County Defendants")4; Mark Epley, in his official capacity as Mayor on behalf of the Town of Southampton5 (the "Town")6; and Alexander Roberts, in his official capacity as Executive Director of Community Housing Innovations, Inc. ("CHI")—move the Court to dismiss the claims against them in the Wallace Complaint. (Dkt. Nos. 68-70; 79.)
For the reasons set forth below, the Court grants Defendants' motions in their entirety and dismisses the Wallace Complaint with prejudice, except Plaintiffs' state law preemption claims as to which the Court declines to exercise supplemental jurisdiction and dismisses without prejudice.
See also: Judge Rejects Sex Offenders' Challenge to Residency Laws....NY Law Journal