US v Russell

4-2-2010 Dist of Columbia:

US v Russell
600 F.3d 631 (2010)

Defendant Mark Russell pleaded guilty to one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) (2006). The district court sentenced him to 46 months of imprisonment and 30 years of supervised release.

A special condition of his supervised release specifies that Russell may not "possess or use a computer for any reason." Russell challenges the duration of his supervised release and the computer restriction, arguing that each is substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We affirm the length of the supervised release, but vacate the computer restriction and remand for resentencing.

---

One judge writing separately commented about recidivism:

WILLIAMS, Senior Circuit Judge, concurring:
I write separately to elaborate on two issues: the scope of review and the probability of recidivism.

... ... ...

Risk of recidivism. At sentencing Russell argued that he was unlikely to repeat his offense, pointing to Department of Justice data on the recidivism rates for various types of offenders, including child molesters. The data, which Russell never mentioned in his appellate briefs, are quite interesting and seem to place child molesters at the low end of the distribution. One report, U.S. Department of Justice: Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994 Table 10 (June 2002), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf, provides the percentage of approximately 272,111 inmates released in 1994 in 15 states who were rearrested within three years of release for the type of crime for which he/she was imprisoned, namely, homicide, rape, robbery, assault, burglary, larceny/theft, motor vehicle theft, fraud, drug offenses, and public order offenses. The numbers for those categories are, respectively, 1.2, 2.5, 13.4, 22.0, 23.4, 33.9, 11.5, 19.0, 41.2 and 31.2 percent.

But another report, Bureau of Justice Statistics, Recidivism of Sex Offenders Released from Prison in 1994 Table 22 (Nov.2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf, shows the analogous rates of recidivism for child molesters to be lower than all but two categories of that set of offenders, and radically lower than most. It reports that of the 4,295 inmates convicted of child molestation who were released in 1994, only 5.1 percent were rearrested for any sex crime within three years.

The DOJ statistics also have implications for Russell's age and his lack of prior offenses. The rearrest rate for child molesters with no arrests prior to the one leading to their imprisonment was about half that for those with a prior arrest for any crime. See id. at Table 28 (Page 33). And the rearrest rate for persons 45 or over was only about 60 percent of the average rate. See id. at Table 25 (page 31).

Note: Unfortunately the latest versions of Adobe Reader do not allow -linking directly to a specific page- so we have shown the pages (33 and 31) where those tables are and you will have to scroll down to them.