This is a report on the 3rd annual conference of the Alliance for Constitutional Sex Offense Laws, held at Southwestern Law School, Los Angeles, June 14-15, 2019.
The welcome to the conference of 190 attendees was made by Catherine L. Carpenter, professor of law at Southwestern Law School. She is the one who arranged for this conference to be held here, without charge, and she has the full support of the law school to do this, and to do her research and publication on sex laws. She introduced Kilsey Finn, who is editor of the Southwestern Law Review, and she welcomes article submissions on sex laws. The law school has an “Access to Social Justice Fund,” which provides a writing contest for students at the law school, to produce case studies on sex crimes. These essays have been used as amicus briefs in lawsuits to challenge the constitutionality of sex laws.
At the tipping point?
Professor Carpenter began her remarks by saying, “United States sex laws are wrong, and we devote our research and publication on this incredibly important cause.” She introduced the first plenary speaker, Janice Bellucci, the founder and executive director of the Alliance for Constitutional Sex Offense Laws (ACSOL), who has been tirelessly filing lawsuits challenging local and state sex laws in California. In recognition of her work, Bellucci has been named as one of the “California Top 100 Attorneys,” and she has been appointed as a temporary judge in Sacramento Superior Court. She is recognized as an effective lobbyist by California state government, and is singularly responsible for changing the attitude of state government toward sex offenders.
In Bellucci’s speech – “The Tipping Point: Are We There Yet?” – she argued there is much important change recently and that “we are on a positive path to make the California sex-offender registry temporary.” She gave much hope for drastic changes, saying, “challenging oppressive sex laws IS a civil rights movement, and things ARE improving.” She said a “tipping point” is “that magic moment when a trend crosses a threshold, and then spreads like wildfire. We are close to that.” She cited a recent decision by the 9th Circuit U.S. Court of Appeals, saying that it is unconstitutional for government to prevent a sex offender from living with his or her own child. She said ACSOL’s immediate goals are to eliminate public websites listing registers of sex offenders, to end the use of GPS ankle monitors for non-violent registrants, to allow registrants to go to public places (for example, parks, libraries, museums, restaurants, and schools), to allow registrants to have a legal job according to their skills without restrictions, to allow registrants to join the U.S. military, to end restrictions on registrants using computers for all legal purposes, and to make social media freely available for all. She cited the Packingham v. North Carolina recent U.S. Supreme Court decision, which said that government cannot deny registrants full access to Facebook and other social media, and that registrants should be able to be active members of society.
Bellucci cited statistics that there are over 900,000 Americans on sex crime registries, more than in any other nation on earth, and that registrants suffer many restrictions. She said the 4th Amendment applies to registrants, to prohibit unreasonable searches and seizures. She said once a registrant is off probation or supervised release, just like any other person, “you do NOT have to give permission to law enforcement for your house to be searched without a warrant.” She said, “If they come to your door, either do not answer the door, or if you do, go outside and close the door behind you. Do not even let them look inside the open door, because they might claim to see something ‘suspicious’ to try to justify entry.”
Bellucci’s efforts go in three directions:
ACSOL is trying to educate lawmakers and government officials, but it is extremely important for registrants to “come out” and be open. “Tell your family and friends that you are a sex offender, and educate them about what that means and about the reality you suffer. It is these personal stories of what happened to you which are the most effective means of changing attitudes of society.” She cited the efforts of the gay community to “come out” to family, friends and coworkers that had the most impact on changing attitudes for LGBTQ equality.
She said the media is a major enemy, and they also need to be educated. Write letters to the editor, call the newspaper or TV and radio station whenever you hear a negative stereotype. It is important they hear from those who are committed to changing this situation. ACSOL alerts members by sending out “Media Alerts” to prompt people to write and call.
She said some politicians support us but they are afraid of negative reactions. California State Senator Scott Weiner, from San Francisco, has been an important and brave supporter. Send him money for his reelection campaign, and send money to anyone challenging those who are anti-registrant, such as California Assemblywoman Lorena Gonzales.
Janice Bellucci has been leading efforts to affect legislation in the California legislature, by opposing bills that are harmful, with members sending letters and emails to their legislator, and attending hearings to show support for good bills and to show opposition against bad bills. The more people who show up, the more effective it is. With so many people affected by sex laws, there should be massive numbers of people doing this. Anyone who is suffering under these restrictions and is NOT activist is contributing toward the perpetuation of injustice. The theme of this conference is “Together, One Voice: Show Up, Stand Up, Speak Up!”
Besides affecting legislation, and educating family and friends, the other area ACSOL has been active is in litigation. Janice first sends a letter on her legal stationary, telling a local government why their specific law or regulation is discriminatory and unjust, and giving them a chance to repeal it. If they do not do that, then she sends another letter telling them if they do not repeal it, ACSOL will bring a lawsuit against them. She said these two letters are usually enough to get them to change their law. But if they resist, then ACSOL will file a lawsuit against them. This filing also results in many local governments agreeing to settle and making changes. Janice has won more court cases than she has lost and has gained good publicity and court decisions, educating judges in the process, with the many victories she has won.
She cited examples of recent victories. In Does v. Snyder, the 6th Circuit U.S. Court of Appeals criticized Michigan’s restrictions on sex offenders. They said that the burden is on the government to prove that a person who has finished his or her prison sentence is actually a continuing danger to society. If the government cannot prove this, then the person should not be on continued restrictions, but should be treated like any other person who has completed a sentence. Doe v. Sex Offender Board of Massachusetts (2018) said the 14th Amendment protections of the right to privacy and equal protection of the laws apply to sex offenders. In U.S. v. Gundy (2015) the 2nd Circuit Court of Appeals and in Millard v. Rawkins (2017) a Colorado court said restrictions on sex offenders constitute “cruel and unusual punishment.”
She said there will come a time when people convicted of sex crimes will be able to live without fear of retaliation after being released from incarceration, and that the government will pay reparations to those who suffered under so many restrictions that impacted their lives. She said that reparations should include free college and vocational training for both registrants and their spouse and children who also suffered. “It is the least the U.S. government should do, due to all the punishments that the United States has given to people who were charged with sex crimes.”
But to get to that point, registrants and their family and friends must become activists, to join ACSOL and other civil rights organizations, and fight for their rights. If ACSOL has more members and more money, many things can be done. ACSOL has telephone meetings for people who cannot travel. One idea is to create a “continuing education” course on sex offender laws, which would be required for parole officers, attorneys, and judges to update their legal knowledge. ACSOL wants to design and hold such a course, to influence policymakers and law enforcement.
When Janice Bellucci finished her powerful address, she was given long applause and a standing ovation by the entire auditorium full of people.
Coming out and surviving as a registrant
The next session of the ACSOL conference had presentations on “Employment Opportunities” by Mark Judkins, and “Understanding Risk Assessments” by Professor Ira Ellman, a professor of law at Arizona State University and on the faculty of the Center for Child and Youth Policy at the University of California, Berkeley. I attended “The Advantage of Adversity: A Journey from Convict to Advocate,” by Guy Hamilton-Smith. He said, “When I was in graduate school at the University of Kentucky in clinical psychology, I was arrested by police for violating the Kentucky law against possession of pornography involving a minor. My parents and friends stood by me, and in state court I received a suspended sentence. The trauma of this experience led me to change my focus to the law, so I entered Law School. When I was volunteering on the “Innocence Project,” and the subject of sex offenders came up, one of my professors said that all sex offenders should be lined up and shot. He was a federal prosecutor. When I later told him my personal story he drastically changed, and still later recommended me for a job as a lawyer.
“I had problems getting a job. The Kentucky Public Defender Office refused to hire me, and the federal prosecutors office told me they have a policy not to hire anyone they might prosecute. To practice law, you have to pass a ‘character test’ and the state government said I cannot take the bar exam as long as I am on the sex offender registry. I appealed to the Kentucky Supreme Court, and lost.
“The Associated Press did a sympathetic story on me, and many newspapers reprinted it. People at my church were very supportive of me. I think what is crucial is telling your personal story. That is what motivates people to change their opinion. When they know a person who is a sex offender personally, it humanizes the subject in a way that reports and statistics cannot. Tell your personal story to all your relatives, friends, and co-workers, to people who know you. That’s what each person can do: be the author of your own story, take charge of your life, so you define it, not some outsider who doesn’t know the real you.
“As I learned to stand up for myself, I saw the injustices more clearly. Sex offender laws are bad laws. The registry is trauma. With this new perspective, I filed a lawsuit against a state law saying sex offenders cannot be on social media. I wrote a brief that this law violates freedom of speech and of the press. I quoted statistics which prove that recidivism rates for sex offenders are extremely low, and that the law is bad public policy based on flawed prejudices. I cited a case where the ACLU challenged the sex offender law in Michigan as unconstitutional and as cruel and unusual punishment. With all these approaches, I won my case in court. Now I work at the Sex Offender Resource Center at a law school and am a board member at ACSOL. My life has been totally changed due to my arrest. Now I have changed, from being a victim to being an activist. I’ve learned from my experiences that to change the law, you cannot just change the law. You have to change peoples’ hearts, and then the law will change following that.”
See his website at Guyhamiltonsmith.com online.
‘What a mess we’re in … on sex-offender laws’
The next plenary speaker at the ACSOL conference was Professor Eric C. Janus of the Mitchell Hamline School of Law in Minnesota. He established the Sex Offense Litigation and Policy Resource Center there and serves as its director. He is the author of acclaimed books Failure to Protect: America’s Sexual Predator Laws, The Rise of the Preventive State, and Sexual Predators: Society, Risk and the Law.
Professor Janus began his talk by saying, “What a mess we are in, in this country, on sex offender laws. U.S. policies are not humane or effective. I don’t even like the term ‘sex offender.’ These laws offend my sense of justice. They are un-American. Our policies are based on myth and are harmful and inhumane. The great majority of sexual harm to children is committed by relatives. Stranger rape of children is very rare, yet it’s the basis for moral panic that is not based in reality.
“The response of the political establishment to launch this moral panic is a patriarchal reaction to feminist attacks. Feminist reformers raised issues of rape and sexual violence, most of which is done to women by their husbands and boyfriends. But the patriarchal establishment subtly shifted this focus to ‘stranger danger’ to deflect attention from the true culprits: men who are in power over their women. The whole focus of sex offender laws is to prevent strangers from raping children, which statistics show is extremely rare.
“Feminists focused on sexual violence, which is common in society because social norms allow them to exist in the context of the patriarchal family. But the legal establishment shifted focus on ‘The Other,’ in the persona of the creepy pedophile who was external to the family. Feminists said the problem is US, but the establishment said the problem is not us, but THEM. The political establishment passed civil commitment laws to isolate pedophiles from society, and strict sex offender laws to keep them under control, in prison or on supervised release. In this sense, the government response was a state pushback to feminist challenges. If we identify and come down hard on that evil sex offender over there, the stranger lurking in the shadows, we do not have to act on the problem of sexual violence within the family. Unfortunately, many feminists (and, aided by the sensationalist media, American society in general) have bought into this patriarchal ploy, by supporting the growth of the carceral state. The sex laws have joined with the drug laws to form the base for the rise of the prison-industrial complex. In the supposedly liberal Obama administration, programs to release some prisoners, who were facing long prison sentences based on drug charges, were accompanied with increased prosecutions and long prison sentences based on sex charges.
“Even the Supreme Court joined in with this moral panic about sex offenders as monsters who rampage against children, stating that recidivism rates for sex offenders were ‘frightening and high,’ when in fact all the statistics show that sex offenders have the lowest recidivism rates of any category of crime. Nine year followup studies show that 92% of people formerly imprisoned on sex charges never get arrested on ANY kind of crime. Even that low rate of risk declines drastically after sex offenders have been released for over two years, with no breaking of laws. Yet, the myth is that sex offending is caused by ‘abnormal psychology’ and even ‘biological factors,’ and certainly not by ‘normal people.’ Sex offenders are ‘The Other,’ who cannot control their actions. If that were true, why are 93% of those people in prison on sex charges first-time offenders? If these persons were repeating their crime, surely they would be arrested again. But the statistics show this picture of ‘serial sexual predators’ is not true. U.S. laws are based on a series of myths and mistakes.
“Moreover, civil commitment and long prison sentences are not effective in reducing rape and sexual violence. Residency restrictions and onerous conditions while on supervised release are not effective in preventing crime. Instead, they are hugely expensive and divert scarce resources from programs of treatment and supervision of truly violent persons which are effective. Programs that establish circles of support and acknowledge accountability toward victims of real violence, work better than imprisonment and torture by draconian restrictions on normal living. By wasting money on persons who never engaged in any act of violence, all these laws succeed in doing is to severely impact registrants and their families. In the name of ‘protecting children,’ many children (of prisoners and parolees) are directly and severely harmed. In the name of protecting teenagers, many teenagers who engage in willing sex are directly and severely harmed by statutory rape charges. All this madness must stop. Laws should be based on evidence, and when programs have proved by experience not to be effective they should be abandoned and other approaches tried. See the movie Untouchable to appreciate the great harm these laws impose on people. It is time for a change.”
Coping: ‘I had to be tougher than anyone else’
During the afternoon session on Friday, June 14, 2019, a representative from the California Sex Offender Management Board was invited to speak. This was not only an opportunity for attendees to learn, but also a chance to educate and influence that board member toward a more accepting view of registrants. There were also panels on “Domestic and International Travel for Registrants” and “How to Cope with Being on the Registry.” I attended the panel on “Prison Issues Faced by Inmates and their Families.” William Dean Laureles spoke about his personal experiences in prison. He was sentenced to 25 years for a sex crime when he was 18 years old. He served 23 years, and was released a year ago. Although he said, “I was not a violent person when I went into prison, but I was forced to become violent in order to protect myself from other prisoners. I had to be tougher than anyone else so that no one would suspect I was a sex offender. If inmates who have sex charges knew how much support there is on the outside, with ACSOL, that awareness would help them immeasurably.”
Since getting released a year ago, he has developed a curriculum to help other prisoners and former prisoners, based on developing empathy, dealing with addictions, and dedicating oneself to live in service to others. He said that in the past, parole officers wanted to try to use any excuse to put people back into prison, but more recently they seem to be more helpful, trying to assist former inmates in preventing recidivism. He said Federal parole officers do not have a problem with former inmates attending ACSOL meetings, and they see it as part of rehabilitation by building a strong social network of support on the outside. He is appreciative of that. Still, he complains about the measurements of risk that are used, saying “the Static 99 measurement is only based on the crime you did, and there is no way to reduce the score, even if you change for the better during subsequent years. I am still evaluated for a crime I did 32 years ago, when I was 18 years old. I still have to wear a GPS ankle monitor. Because of that device, I cannot take a bath, or go for a swim. There are many activities that are prohibited, that are part of normal daily living. I feel like I am still being punished, even though I am trying my best to construct a new good life and be a good law-abiding citizen.”
The next speaker, Dan, was in prison for eight years. He said that he observed many prisoners with Complex Post-Traumatic Stress Disorder (C-PTSD), which is different from and more serious than a one-time regular PTSD because it is due to repeated incidents of stress over a prolonged period of time. Many prisoners are so beaten down by their experiences in prison that they have an overwhelming despair that leads them not to care about anything. This feeling is counterproductive to rehabilitation because those who feel out of control of their own life may react by exerting power and control over others. Because they do not care about their own future, or that of others, they may be susceptible to committing other crimes. Prison may actually increase criminality, and is not a way to prevent future crime.”
The last speaker on this panel was Roland, whose adult son is now in prison. He said, “There are now over 25 million Americans who are or were in prison, which is one out of every eight adults. This means that 45% of American families have someone in their immediate family who is or was incarcerated. If they would organize, family members could be a strong voice to intervene on behalf of prisoners and those on parole. Presently, the strongest voices are the lobbyists hired by prison guard unions, which are very influential with legislators. The unions are well funded, because the union members pay a lot of money to politicians to make sure their salaries increase. Prison guards have a direct financial interest in seeing the prison-industrial complex grow. Whenever a person’s financial benefit is involved, this makes it hard for legislators to oppose prison expansions. We need strong organizations to advocate for prisoners.”
On Friday afternoon June 14, 2019, the plenary speakers at ACSOL assembled on a panel to answer questions. The panel emphasized the need to develop allies. A conference at Marquette University on criminal justice reform includes sex charges. Families Against Mandatory Minimums, which formed mainly by relatives of those accused of drug crimes, is now open to including sex charges.
Janice Bellucci is trying to develop more ties to gay activists. The gay rights group Equality California is very powerful in Sacramento, and worked with ACSOL on the state’s new three-tier law, about penalties for child pornography. She wants to get them also involved in a lawsuit to challenge the law passed by Congress “International Megan’s Law” and is looking for a perfect gay plaintiff.
This law was passed by Congress without any hearings or debate. It requires a stamp to be made inside all passports of registrants: “This person has been convicted of a crime against a minor,” with no definition of the age of the minor (anyone below 18), how long ago the crime happened, or the nature of the offense. The term “sex offender” is not good to use, since it includes so many different types of charges. It may involve nude pictures of a 17 year old, which has nothing to do with the sex trafficking of young children. The stereotype is of child rapists, but that charge is only a tiny percentage of all registrants. The fact that the U.S. government would stamp “Sex Offender” on passports is only the second time that a government has placed a stamp against on any group. The last time was “Jude” stamped in passports of the 1930s in Nazi Germany.
In response to ACSOL’s lawsuit, Supreme Court Justice Samuel Alito said, “The only reason a man goes to the Philippines is to have sex with children.” Incredibly ignorant. Most judges are not this closed-minded. Even if a lawsuit is not successful it can still serve the purpose of educating judges. A lawsuit does not have to cover everything. An incremental approach works best — and another lawsuit can address other issues in the next go-round. One issue that needs to be filed is against credit reports which include information about being on the sex offender registry.
ACSOL will post some of the sessions on their Youtube.com page, including “Employment Opportunities” and “Domestic and International Travel.”
Illinois: A state of injustice
The 3rd Annual ACSOL Conference began the second day of the program on Saturday, June 15, 2019, with a plenary speech by Illinois attorney Adele Nicholas. She explained that Illinois restrictions for released sex offenders are onerous. A registrant cannot live near a beach, swimming pool, playground, school, or other place where children congregate. A registrant cannot live in any apartment complex or trailer park where another registrant already lives, or where a child lives. A registrant cannot live in any household where a computer internet hookup is located. These restrictions make it extremely difficult to find housing for a registrant. These restrictions are a reason why there are no halfway houses in Illinois which will accept sex offenders; it is too expensive for them to accept any registrants, even if they wanted to.
Illinois will not allow a sex offender to get out of prison until they have a place to live, in an approved house. Because this is so difficult, especially for those from poor families without their own house, many registrants end up remaining in prison for life. If their request for approval of a residence is denied, they are not told why it was denied. They were not given any opportunity to appeal, even if the denial was based on a whim of their parole officer. Parole officers have excessive discretion, with almost no oversight. There are no clear standards by which a person can get off supervised release One man was living in his own house after his release, but after living there for years he was ordered to leave because a daycare center was opening several blocks away. He became homeless, and had to sleep in the frozen winter inside his car, away from his wife and children.
Unlike other Illinois prisoners, sex offenders cannot reside in a homeless shelter. Unlike other prisoners, sex offenders cannot do work release while they are still in prison, which offers the possibility of saving money to pay rent and a security deposit. In so many ways, the system guarantees impoverishment and continued incarceration for sex offenders, even after they complete their sentence.
Adele Nicholas is bringing lawsuits that Illinois violates the 8th Amendment “cruel and unusual punishment” by the punishments that are grossly disproportionate to the harm caused by the crime, and violation of the 14th Amendment due process and equal protection of the laws. Prohibitions that prisoners cannot even be in contact with their own child, when they never did any harm to their child, are violations of the fundamental right to family relationships. Judges have ruled in her favor, after they hear personal stories of the outrages which occur. And the Illinois Department of Corrections did not appeal, so many lives are starting to improve as a result of her lawsuits.
However, a major factor now is that the prison-industrial complex has grown so large and powerful that parole officers and prison guards want to keep their jobs. So their unions (which are some of the most powerful in the nation) lobby to expand their budgets each year. Prison-guard unions are well funded, and hire well-paid lobbyists to get more jobs, which means more people being kept in prison and supervised release to justify the huge costs involved.
While litigation is able to chip away at the outrages involving individual persons, it does not overturn the oppressive system as a whole. Asked about the potential impact of mass civil disobedience, Janice Bellucci told of ACSOL doing a protest march in the City of Carson, to protest the rule that sex offenders cannot enter a city park. But when they got to the park, people on the sex offender registry remained with protest signs on the sidewalk with “Crime Scene” tape strung around them. Although they got good coverage from the Los Angeles Times, this was not true civil disobedience. In the black civil rights movement of the 1960s, Martin Luther King and others led large numbers of people to purposefully break the law, lay limp while being dragged away by police, and get arrested. The problem with that approach today is that the government seems more than happy to arrest people and put them back in prison for very long time periods. We live in even more repressive times today, with a more draconian and powerful prison-industrial complex.
Where’s the gay movement?
In the next session — on Saturday June 15, 2019 — there were panels titled “California’s Tiered Registry” (by Janice Bellucci and Chance Oberstein), on “Researchers and Anti-registry Activism” (by Dr. Emily Horowitz, professor of criminal justice at St. Francis College and director of the Institute for Peace & Justice), and on “How to Cope with Being on the Sex-Offender Registry” (by Alex Gittinger). I attended the panel on LGBTQ Issues (by Marty Weiss, Eric Borgerson, and David Whitehead).
Eric Borgerson was an attorney until he was arrested, and since his release is now working as a paralegal in a law firm, doing exactly the same kind of work he did as a lawyer, but now at a fraction of the income. He is an example of how the criminal justice system destroys personal financial status and denies people the ability to do the jobs for which they are experienced and well qualified. He said after working in the legal profession, “I recognized that the law, though very important, is designed to resist, rather than facilitate fundamental change.” He now feels that grassroots organizing, activism based on telling ones’ own personal stories, and civil disobedience are more effective tools in prompting change than strictly legal approaches.
Eric reviewed the history of Supreme Court decisions on sexual orientation: Bowers v. Hardwick (1986), Romer v. Evans (1996), Lawrence v. Texas (2003). While there is progress, sexual orientation is still not given the strict scrutiny that applies to court cases on race, religion, and national origin. Sexual orientation, even though increasingly recognized as an immutable characteristic, is at the “rational basis” third tier, which is more difficult to get courts to support. Eric stated that both racial and sexual minorities have always been disproportionately impacted by the U.S. criminal justice system. Today rates of imprisonment for LGBTQ people are over three times higher than rates of imprisonment of the general U.S. population. Nevertheless, gay rights activist groups such as the Human Rights Campaign, National LGBTQ Task Force, and Lambda Legal have not been supportive because they fear being associated with “sex offenders” and “pedophiles.” They need to be called to account, to follow in the same way that the African-American civil rights organizations now are leaders in the criminal justice reform movement.
Eric pointed out that because so many LGBTQ people are imprisoned, they lose their right to vote and to hold public office, and this constitutes selective disenfranchisement which weakens the queer vote generally. “This is a threat to democracy,” he said; “an effective way to approach people is to emphasize that the right to vote, the right to voice our opinion, and the right to disagree is fundamental to American values. These shared beliefs are the basis on which we can argue for the end of discrimination, even against those who have been incarcerated.”
When David Whitehead, a grant writer, spoke, he said that “While the gay community may not want to be associated with sex offenders, but it IS associated with sex offenders, whether they want to acknowledge it or not. The only way this will change is for sex offenders to “come out” and influence our friends and relatives to see the reality of what is happening with mass incarceration. We need to reach out to more people. There are over 100,000 sex offender registrants in California alone. If all of us come out publicly, then the public attitudes will change.” This is a theme of many speakers at this conference.
Marty Weiss, an agent in the Hollywood entertainment industry, also emphasized the need to come out as “a survivor of the registry.” He gave an energetic presentation, emphasizing “the great harm the registry does. In the name of protecting children, it stigmatizes over 40,000 children as sex offenders, when they may have done nothing more than sexting nude pictures of themselves. In the name of protecting children, it traumatizes many LGBTQ youth who are engaging in consensual relationships, and intimidates them from expressing their natural sexuality. In the name of protecting children, it harms the children and other relatives of registrants. Children of registrants are bullied and discriminated against because of something they had no control over.”
Marty said, “We need to become activists, placing our emphasis on helping others rather than just wallowing in our own self-pity. We must stop being defensive, and instead to characterize haters as unpatriotic slackers who are against the Constitution. We are in the right. We are defending Constitutional rights for everyone.” He sees those who oppose our civil rights movement as “alt-right scammers.”
“We need to pressure Equality California, Human Rights Campaign, National LGBTQ Task Force, and Lambda Legal to take leadership on prisoner and registrant issues, just like black civil rights groups exercise leadership on the prison-industrial complex. We need to support legislators like California state senator Scott Weiner of San Francisco, and work to defeat haters like assemblywoman Lorena Gonzales
“We need to talk to our local chapter of Parents and Friends of Lesbians and Gays (P-FLAG), to tell them our personal stories and enlist them as allies. Mobilizing our relatives and friends can become important voices for our issues, and PFLAG should be a natural ally to develop.”
Treating nudity like murder
On Saturday afternoon there were speeches by ACSOL president Chance Oberstein, an attorney in Laguna Niguel, California, who has had great success in post-conviction relief and in getting people removed from the registry. Janice Bellucci led a panel on domestic and international travel, and the restrictions imposed by the International Megan’s Law. I attended the panel on child pornography Issues. led by University of California, Berkeley, professor Ira Ellman. He and his wife Tara Ellman published an influential article, “Frightening and High: The Supreme Court’s Crucial Mistake About Sex Crime Statistics,” which was widely cited in the media as well as in judicial decisions. He has written amicus briefs for many sex-offense court cases. He spoke on federal CP cases, which are one third of all CP prosecutions. The FBI has 56 specialized CP units in all its field offices, working on the “Innocent Images Initiative.” ICE has “Operation Predator,” and Homeland Security regulates international travel by registrants. The National Center for Missing and Exploited Children has a huge database of pictures of unclothed children and matches them to get money restitution if a registrant has that minor’s picture on his computer.
“Congress defines crimes and sets sentencing, then the U.S. Sentencing Commission sets guidelines for judges. These guidelines are supposed to be based on empirical facts, based on how much actual harm was caused, and how much of a chance there is that the accused will reoffend. But that is not the reality of how it really works. Since 1990 the incidence of sex crimes against children, like all crimes, has gone down sharply. However, it was only in 1990 that possession of child pornography became a federal crime. Since 1990 the number of prosecutions of CP have gone way up, As late as 2000 there were only 402 arrests for CP nationally (and 380 of these were adults). By 2009, there were 1,910 arrests (and, most shockingly, over half — 1,198 — were persons under age 18). People arrested for looking at CP hardly ever reoffend, so it is not worth setting big treatment programs because the reoffense rate is so low.
“Nevertheless, despite the lack of harm shown and the low rate of reoffense, the average length of sentences have become significantly longer. In 1987, the sentences for possession of CP were 12 to 18 months. In 1991 it increased to 21 to 27 months. By 1996 it was 41 to 51 months. In 2000 was 70 to 87 months, and by 2004 it mushroomed to 210 to 262 months. Likewise, before 2003, time awarded for supervised release was zero to three years. Since 2003, the time was increased to five years to lifetime (the mean CP sentence is 23 years).
“A recent survey of federal judges show that 70% think the sentences for CP are much too long. The 9th Circuit Court of Appeals said these long sentences ‘make no sense.’ Federal sentences are much longer than in any other country. State sentences vary widely by region. Sentencing is longest in the South and the Midwest, and lowest in California. Federal sentencing is harsh, and in most states it is an advantage to be prosecuted under state law, where at least there is the possibility of pleading to a misdemeanor. There are no misdemeanors in federal law. However, in states like Arizona, their state law is harsher than federal.
“Now pending in the Supreme Court is a case U.S. v. Haymard to decide how long a judge can sentence someone on supervised release back to prison for a parole violation. In 2000 the Johnson case said the maximum time depends on the length of the original sentence, but now the court may further restrict reincarceration after someone has finished their sentence.
“Another pending case is Matthews v. Harris, to decide whether therapists must be required to report clients who wish to discuss their interest in CP.
“Congress imposed long sentences for child pornography in an attempt to deter people from looking at it. But all the research shows that draconian punishments and long sentences do not work to deter crime. American law needs another way.
“One area of progress is that the Supreme Court has held that Japanese anime’ or other drawings, sketches, paintings, or other artwork is NOT illegal. The whole rationale for making CP illegal is that it harmed a real child. But if there is no real child involved, then artistic or digital creation harms no one. On the contrary, it might be an outlet that allows those with an interest in children to satisfy their desires without interacting with a real minor.”
[A question was raised: If the Supreme Court has decided that artistic or digital creations are not illegal, and that sex toys are not illegal, then this would imply that sex dolls, sex robots, and virtual-reality computer programs, even those that look like minors, are not illegal as well. A future case may be brought if a parole officer tries to prevent a person on supervised release, who has already completed his or her sentence, from possessing such robotic or digital technology. A person might be able to argue that possession of such a device is a means of making sure they do not commit another crime in the future. The law is way behind the technology, especially since technological change is happening faster and faster.]
Effective advocacy, suicide prevention
In the last session — on Saturday June 15, 2019 — Janice Bellucci and Roger Hunnicutt presented a panel on “Effective Advocacy” [NOTE: Janice Bellucci’s outstanding speech at the previous ACSOL conference is available as a Youtube.com video at the ACSOL website.] Another panel “Why Suicide Prevention Efforts Must Include Registrants,” was by Laura Simmons, a suicide prevention researcher in Kentucky who began her work as a youth counselor at a group home for children and teenagers convicted of sex crimes. I attended the panel “Practical Solutions for Surviving Supervision,” led by attorney Chance Oberstein. He said, “You must begin your preparation for supervision while you are still in prison. Avoid violations while in prison, take classes, and become a lifelong learner to promote your education. Develop a spiritual practice, however you may define it, through prayer, meditation, or other sense of moral duty to making the world a better place. Shift your attention from self to selflessness, to giving back to the community by dedicating yourself to helping others.
“When getting out of prison, follow the same path in dealing with your parole officer. Avoid violations, try to have secure and stable housing and income, pursue educational programs, develop a strong social network (with family and/or friends), and be self-reflective in a spiritual or community-centered focus. Seek counseling, enter recovery programs if appropriate to your case, and value input from others. Be transparent, by reporting every topic of concern to your probation officer or therapist. Call your treatment provider if you have a question or a problem. Approach them as if they are there to help you, rather than in an oppositional antagonistic way. When in doubt, ask your parole officer or treatment provider. Keep a dialogue going, and be non-confrontational. Keep a journal and take notes every time you talk to your probation officer, or write down the interchange immediately after. Always have a copy of your particular court conditions on hand when talking with your PO.
“If your PO makes a decision you do not like, consider how to avoid a conflict if possible. You have to pick and choose your battles, and you won’t get everything you wish. If you can think of another alternative, take it if possible. If you still do not agree, write very politely that you request an appeal to the PO’s supervisor, without meaning to be disrespectful to the PO. Remember that the PO is dealing with a lot of people, and does not want to have trouble. If the supervisor backs up the PO, the other alternative is to write to the judge. But this should be done only as a last resort. Try to find an alternative or a compromise instead.
“You should try to get early termination of supervision. The big factors are having secure housing, developing economic security, overcoming addictions, showing strong family ties or a strong social network, and demonstrating that you can live a constructive life as a law-abiding citizen. Get a letter of support from teachers of classes you have taken or treatment providers you have worked with. Get references from community leaders showing your contributions to the community. After compiling all this, if possible get a letter from your prosecutor to support your early termination.
“The more your parole officer trusts you, the more you will be on the road toward termination. Ask your PO and your treatment provider, “What do I need to do to get early termination?” Set a strategy to accomplish these needs.
Amazing progress in a short time
At the end of this very successful conference, Janice Bellucci made final remarks. She said ACSOL has made amazing progress in only a short time, in challenging excessive restrictions on prisoners, registrants, and those on supervised release. ACSOL board members like Professor Ira Ellman’s and Southwestern Law School Professor Catherine Carpenter’s law review articles are being read by judges and cited by them in their decisions. The more ACSOL accomplishes, the more respected it will be. But it needs more funding. To help ACSOL accomplish its goals, please make tax-deductible donations to the “Family Safety Foundation.” Set aside a monthly donation from your job, to the extent you can afford. If your employer offers matching donations to tax-deductible foundations, ask them as well. We are all in this together, so we must support each other.
Together, we can win. Show up, stand up, speak up. Thanks!