Tuesday, December 11, 2007

Sex offender residency restrictions rise again in Georgia

The Daily Report tells us that Georgia will try again to ban where sex offenders may live. You will recall that the state’s Supreme Court declared unconstitutional the strict residency requirements approved by state lawmakers two years ago:

Under the new bill being pushed by House Republicans, a sex offender who owns his or her home would no longer have to vacate it if a center where children gather later opens up in the neighborhood. The bill would carve out a similar exception for sex offenders who have established employment, allowing them to keep their job if they had it first. [...]

The residency portion of the new bill would apply only to homeowners. Renters would still have to relocate if a childcare center, church or school moves into the neighborhood after they do.

House Republicans said they took their direction from the court’s own ruling, which hinged on home ownership. The court said that to force a homeowner to abandon his property or be in violation of the law amounts to an illegal taking of property.

Via Maggie at Of Counsel:

Also, for the die-hard-residency-restriction types, how does this help anything? It’s creating situations where sex offenders will be close to schools or day cares or playgrounds or all those other things they want to keep them away from. It seems to me like a rather large compromise. If they don’t mind letting some of them do it, why are we bothering?

The biggest problem remains the one-size-fits-all approach. The danger of someone who’s committed a misdemeanor sexual battery against another person ever hurting a child is slim to none. People who committed statutory rape twenty years ago? Pretty low. And yet we continue to treat all sex offenders like pedophiles. Worse, I don’t know of any treatment regimes in place to try and better assist or monitor those who may be at risk of re-offending. It seems like a lose-lose situation, and it continues to create mountains of work for local law enforcement and probation officers, which means it’s costing the state more money to do something that seems to have little value and risks losing track of offenders all together.

RELATED: Sex offender residency restrictions DO NOT WORK.

Monday, December 10, 2007

Gang-Rape Cover-Up in Iraq. By U.S., Halliburton/KBR

To the sexual atrocities in Iran, Dubai and Saudi Arabia, now we add Iraq. But this time the alleged victim was an American citizen attacked by her contractor coworkers:

A Houston, Texas woman says she was gang-raped by Halliburton/KBR coworkers in Baghdad, and the company and the U.S. government are covering up the incident. [...]

In a lawsuit filed in federal court against Halliburton and its then-subsidiary KBR, [22-year-old Jamie Leigh] Jones says she was held in the shipping container for at least 24 hours without food or water by KBR, which posted armed security guards outside her door, who would not let her leave.

“It felt like prison,” says Jones, who told her story to ABC News as part of an upcoming “20/20” investigation. “I was upset; I was curled up in a ball on the bed; I just could not believe what had happened.”

Finally, Jones says, she convinced a sympathetic guard to loan her a cell phone so she could call her father in Texas.

“I said, ‘Dad, I’ve been raped. I don’t know what to do. I’m in this container, and I’m not able to leave,’” she said. Her father called their congressman, Rep. Ted Poe, R-Texas.

“We contacted the State Department first,” Poe told ABCNews.com, “and told them of the urgency of rescuing an American citizen”—from her American employer.

Poe says his office contacted the State Department, which quickly dispatched agents from the U.S. Embassy in Baghdad to Jones’ camp, where they rescued her from the container.

She says an examination by Army doctors showed she had been raped but the rape kit used disappeared after it was handed over to KBR. The perpetrators are unlikely to be brought to justice because contractors in Iraq are beyond the reach of United States law.

Her only recourse is civil court. Except that:

KBR has moved for Jones’ claim to be heard in private arbitration, instead of a public courtroom. It says her employment contract requires it.

In arbitration, there is no public record nor transcript of the proceedings, meaning that Jones’ claims would not be heard before a judge and jury. Rather, a private arbitrator would decide Jones’ case. In recent testimony before Congress, employment lawyer Cathy Ventrell-Monsees said that Halliburton won more than 80 percent of arbitration proceedings brought against it.

It looks like her only real recourse is a media-induced public outcry.

LATER - The blogosphere is doing its part: John Aravosis, Atrios, Steve Benen, Lindsay Beyerstein, Crooks and Liars, Digby, Miss Laura @ DailyKos, Amanda Marcotte, Open Left, Siva Vaidhyanathan, Pam Spaulding, Michael J.W. Stickings, and Wonkette. To name just a few.

Saturday, December 08, 2007

Iranian execution for sex at 13

Doug Ireland:

The Islamic Republic of Iran murdered Makwan Moloudzadeh, a lad of 21, on the cold morning of December 5. Makwan was dragged at dawn from his jail cell in the Kermanshah Central Prison and hanged in secret within the prison, without the required presence of his lawyer and family, for the so-called “crime” of having had anal sexual relations, which the authorities claimed was rape, with boys of his own age eight years ago, when he was 13.

Given witness recantings during his trial, it is impossible to know what, if in fact anything, actually transpired.

Amnesty International released a statement denouncing the execution as a “mockery of justice.” The International Gay and Lesbian Human Rights Commission’s executive director, Paula Ettelbrick, said in a statement, “This is a shameful and outrageous travesty of justice and international human rights law. How many more young Iranians have to die before the international community takes action?” [...]

The state murder of young Makwan - who was only 20 if one uses an American calendar, but 21 if one uses an Iranian calendar - was triply illegal, in violation of international law and Iranian law.

As we’ve come to expect, the details are horrendous. Ireland’s story features an interview with the only Iranian journalist to have covered Makwan’s case extensively, Mitra Khalatbari:

“[E]ven in the last hours of Makwan’s life, the authorities continued to break the law… There was no prior notification of the execution to the family or the lawyer, as the law requires, so Makwan’s lawyer was not allowed to be present, as the law also requires.

“Thus, Makwan was not allowed to say goodbye to his family, nor were there any plaintiffs present at the place of execution with whom Makwan could plead for his life and ask their forgiveness to escape death.”

Iran ignored two international treaties to which it is a signatory. Its chief justice ordered the execution halted and a retrial. Iran was intent on killing that kid.

As many as 78 other Iranian children are facing execution right now in Iran, as are several dozen more Afghan children arrested in cross-border smuggling operations. In June, Amnesty International issued a report entitled “Iran: Last Executioner of Children;” which you can read here.

More on Broun and the SAFE Act

Still looking for why our conservative Republican representative, Paul Broun, opposed the SAFE Act (he and Ron Paul were the only 2 in the House to do so), I found this in the Athens Banner Herald:

While Broun finds people who make or look at child pornography “beneath contempt” and has “nothing but disdain and disgust for them,” he thinks the bill is unconstitutional and could lead to police harassing innocent people, said his spokesman, John Kennedy.

When police investigate child pornography based on information turned over as a result of the bill, or when police discover child pornography that wasn’t reported by the service provider, it will be difficult to tell who was responsible, Kennedy said.

“It puts an innocent person potentially in the position of having to fight off the presumption of guilt,” he said.

Broun believes states, not the federal government, should pass and enforce laws restricting pornography, Kennedy said. The bill also lacked a clear definition of child pornography and was rushed through without a committee hearing, giving lawmakers little time to read it before voting, he said.

States Rights aside, I’m right there with him.

Thursday, December 06, 2007

NYPD “sting operation” or “entrapment?”

James Wolcott quoting the NY Daily News:

[H]ere in New York the police department has come up with a gotcha program dubbed (with appropriate ironic cynicism) Operation Lucky Bag. Here’s how it works.

The decoy operation involves planting shopping bags, purses, backpacks and wallets around the subway system, where unsuspecting passersby are watched to see how they react.

The plants used to be worth a few hundred dollars at most.

“Sting operation” seems to be the more appropriate term, and the word “entrapment” also floats to mind. Operating on the principle that finders aren’t keepers, those who made off with the goodie bags risked being arrested if they didn’t return them to the proper owner, which in this case was the police department.

But decoy/sting, whatever you call it, it was a ruse that only nabbed small fry. Until the ante was upped.

Now the [strategically dropped decoy bags] contain real American Express Cards, issued under pseudonyms to the Police Department. Theft of a credit card is grand larceny, a Class E felony, so anyone cops believe has the intention of stealing the decoy wallet or bag could face up to four years behind bars.

Yes, let’s create a crime which we can crack down on and make sure our prison facilities never lack for inmates. Even those who are not arrested are treated to a special helping of public humiliation, courtesy of New York’s Finest.

Freelance photographer Carlos Alayo says he was late for a business meeting when he spotted a wallet lying abandoned on a subway platform bench.

He picked it up and put it in his bag, with every intention of later finding its owner, but as he rushed to board the 6 train last Wednesday at Grand Central, he felt a hand on his shoulder.

“Where’s the wallet?” the undercover cop asked him.

[snip]

After giving the officers the wallet, he was frisked, made to put his hands against the wall and hand over his identification so they could do a criminal history check.

“It wasn’t even crossing my mind what was inside [the wallet]. I was trying to get to my appointment,” Alayo said.

“It made me feel like I was a criminal, like I did something wrong. The look on [the cop’s] face, it was like he already knew that I was arrested.

“He said, ‘Don’t lie to me, just tell me how many times you’ve been arrested.’

“That just stabbed me right there in the heart.”

Alayo, who is from Peru, felt the eyes of all the rush-hour commuters on him as he was searched by officers.

“I was so ashamed, my face went red and people were looking,” he said.

“God knows what they were thinking, a Spanish guy on the platform surrounded by cops. It made me feel very uneasy inside.

“I’ve been in this country 17 years and not felt discriminated against until that day,” Alayo said.

Heckuva job, fellas. Memo to self: Make sure to send in that year-end donation to the NYCLU.

The NYPD’s definition of theft:

“Even property which is lost or mislaid can be stolen,” said NYPD Deputy Police Commissioner Paul Browne. “A person who takes or finds property which is lost or mislaid has a legal obligation to make efforts to return the property to its owner, which can include delivering the property to the police.

So is there a time limit? The guy was legally obligated to skip his meeting once he picked up the wallet?

Tuesday, December 04, 2007

Sperm donor liable for child support???

I sent this one right off to Walter Olson. Absurd:

A Nassau County man who said he donated sperm to a female co-worker as a friendly gesture—and then sent presents and cards to the child over the years—is legally considered the father and may have to pay child support for the college-bound teenager, according to a judge’s ruling. [...]

Nassau County Family Court Judge Ellen Greenberg ruled on Nov. 16 that despite the mother’s willingness to have the child’s DNA tested, the man was barred from seeking a paternity test to determine if he is truly the father because the results could have a “traumatic effect” upon the child, who is now 18 years old and lives in Oregon with the mother. The next step is a meeting with a support magistrate to determine the amount of child support payments—if any—the man would have to pay until the teen turns 21, Kelly said. [...]

Even without genetic evidence, the man’s interactions with the child over the years had a patriarchal nature, said Jeffrey Herbst, an attorney who represents the mother in the lawsuit through a federal agreement called the Uniform Interstate Family Support Act.

“It’s still a parental relationship,” Herbst said.

Monday, December 03, 2007

Judge finds no Michelle Bruce gender fraud

The Riverdale runoff election will proceed on Tuesday:

A Spalding County Superior Court judge threw out a petition to halt the runoff after nearly four hours of testimony Monday.

“The court finds no facts shown of illegality or irregularity,” Judge Johnnie Caldwell Jr. said. “There has been no fraud perpetrated to the citizens of Riverdale.”

It will be interesting to see how this affects turnout - less than 800 people voted in the disputed city council election.

With this post it looks like it’s been Michelle Bruce day on my blog. See also: The targeting of Michelle Bruce and Gender neutrality. And why the T belongs in LGBT!.

Thursday, November 29, 2007

Judges need leeway in teen sex cases

Maureen Downey for the AJC editorial board on the Widner plea deal and calling for a fairer approach to teen sex sentencing:

A judge ought to be able to look at those facts and determine how long Widner should serve rather than be bound to a 10-year sentence. Voters elect judges in Georgia to make those tough calls.

Yet lawmakers eroded the powers of judges by mandating the sentences they can impose. “We should trust our judges to make decisions and not pen them in with mandatory minimum sentences,” says [Widner’s attorney, J. Scott ] Key. “We now have a system where there is little opportunity for the punishment to fit the facts.”

Widner is leaving jail a felon, which means he’ll be on the state’s sex offender registry. The registry is another example of the Legislature’s abandoning common sense and fairness, putting consensual sexual activity between teens on the same level as violent rape or child molestation. [...]

The courts must have greater flexibility in teen sex cases where force is not involved and where both teens are willing participants. Neither Widner nor Wilson is a hero for what he did. But antiquated laws that view older teens as dangerous predators and younger ones as helpless victims ignore the realities of high school society where seniors and freshmen often date.

Most Georgians understand that a world of difference exists between two classmates having sex and a 35-year-old molesting a 10-year-old. Georgia’s laws and its sex offender registry need to recognize that distinction.

RELATED: Josh Widner accepts life sentence for release.

Wednesday, November 28, 2007

Activist judges or willfull prosecutors?

This quote from the AJC’s story on Josh Widner’s plea deal merits emphasis:

Constitutional law expert Robert Shapiro said Floyd’s decision to clear the way for Widner’s release was highly unusual. It showed the discretion prosecutors have in finding a fair result.

“The fairness in the system may depend on prosecutors following the principle of fairness,” said Shapiro, a professor at Emory University law school.

Conservatives have been incredibly successful at promoting the construct of “activist judges.” Worse, they have successfully codified it into onerous limits on judicial discretion to right obvious wrongs. Liberals should not just fight back this challenge, they should take on willful prosecutors. We need a justice system that includes real safeguards against willful and/or discriminatory prosecutionS.

The indisputable fact is that the vast majority of all cases prosecuted never get to court. They are, instead, settled in negotiated plea bargains. And the decision of how, what and whether to prosecute is decided entirely through Prosecutorial Discretion:

Courts recognize a prosecutor’s broad discretion to initiate and conduct criminal prosecutions, in part out of regard for the separation of powers doctrine and in part because “the decision to prosecute is particularly ill-suited to judicial review.” In the absence of contrary evidence, courts presume that criminal prosecutions are undertaken in good faith and in a nondiscriminatory manner. So long as a prosecutor has probable cause to believe that the accused has committed an offense, the decision to prosecute rests within her discretion. A prosecutor has broad authority to decide whether to investigate, grant immunity, or permit a plea bargain, and to determine whether to bring charges, what charges to bring, when to bring charges, and where to bring charges. [...]

There are other limits to a prosecutor’s discretion, and the judiciary has a responsibility to protect individuals from prosecutorial conduct that violates constitutional rights. Such conduct usually involves either selective prosecution, which denies equal protection of the law, or vindictive prosecution, which violates due process.

Emphasis mine. It’s time that liberals right the wrong of willful and discriminatory prosecutors and do it in a manner similar to - and with as much vehemence as - the way big ‘C’ Conservatives have taken on activist judges.

Richard Moran, a professor of sociology and criminology at Mount Holyoke College, has documented that there is malicious prosecution:

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel.

It’s time we on the Left do something about it!

SEE ALSO: Josh Widner accepts life sentence for release.

Josh Widner accepts life sentence for release

I promise you, I’m not second guessing the young man. What choice did he have?

Like Genarlow Wilson, Joshua Widner received a mandatory 10-year sentence for nonforcible sexual activity with a fellow teenager.

Like Wilson, Widner argued through his lawyer at the Supreme Court of Georgia that his sentence was unconstitutionally cruel and unusual.

Widner last year lost in a unanimous decision from the high court, while Wilson last month prevailed in a 4-3 ruling. One key difference between the cases, the court’s majority said, was that Widner was about 4 1/2 years older than the 14-year-old girl involved in his case, while Wilson was about two years older than the 15-year-old girl in his case.

But on Monday, a Henry County, Ga., judge signed off on a plea deal that will allow Widner out of prison within days, less than five years into his sentence. [...]

Widner still will need to register as a sex offender, McGarity explained to him. That was a primary complaint by Wilson’s supporters about his sentence.

Asked about the sex offender registry, Widner’s lawyers said they didn’t think they should look a gift horse in the mouth.

Unfortunately, that’s a gift horse that promises to keep on giving. While Georgia’s draconian sex offender residency restrictions have been struck down by the GA Supreme Court, Maggie at Of Counsel suspects they’ll be back soon:

...Law enforcement had decided that it didn’t matter that the law was unconstitutional and they were going to enforce it anyway. The Attorney General has thankfully clarified the issue, telling police that unconstitutional does in fact mean unconstitutional, no matter the person’s circumstances. However, it’s not the end. In this article, a Republican congressman from Sandy Springs says the legislature will re-draft. Based on my reading, it seems all they’ll have to do is allow grandfathering of sorts, that offenders can stay where they are if something new shows up after a certain date. I’m betting that’s the route they’ll take, though it completely ignores the bigger issue.

I recently attended a JUSTGeorgia Town Hall meeting. The group aims to rewrite the juvenile justice code in Georgia. They are conducting a survey right now which can be found here. If you care, as I do, about the serious injustices we are perpetrating on our youth through an inadequate and outdated legal system, take a moment to complete the survey.

In the meantime, good luck Josh. We’re pulling for you.

SEE ALSO: Sex-offender residency restrictions don’t work! and Statutory rape reform: Stop locking up kids for being kids!

Tuesday, November 27, 2007

Sunstein on the 2nd Amendment

A few weeks ago I listened to a podcast of a Cass Sunstein lecture, “The Second Amendment: The Constitution’s Most Mysterious Right.” That lecture appears this week as a piece in The New Republic.

In it he examines the textualist and originalist positions and concludes that the Second Amendment probably does not create an individual right, because it was designed to protect state militias. But, in the end, he concludes:

Some people are drawn to judicial “minimalism,” and want to decide cases as narrowly as possible. (Chief Justice Roberts and Justices Alito, Breyer, and Ginsburg have shown minimalist tendencies.) Could we imagine Second Amendment minimalism? Even if it is agreed that the Second Amendment should be construed to protect individual rights, it does not follow that all, most, or many restrictions on gun ownership must be struck down. People have an individual right to free speech, but that right is not absolute. Courts allow governments to regulate obscenity, libel, bribery, criminal conspiracy, false commercial advertising, child pornography, and criminal solicitation. Even the minority report in the Pennsylvania ratification convention, much emphasized by advocates for gun rights, says that the right to bear arms can be overcome in the face of “real danger of public injury.”

It would not be difficult for judges to conclude that a “real danger of public injury” exists when those with criminal records seek to buy handguns, or when people get sawed-off shotguns, or when they do not agree to keep their guns in secure places at home. Judges who embrace minimalism would prefer to resolve Second Amendment cases in the following way: “We need not answer the disputed question of whether the Second Amendment confers individual rights at all. Nor need we specify the precise nature of any individual rights that might be conferred by that amendment. Even if the Second Amendment does confer individual rights, it is not violated by the restriction at hand. That restriction preserves the right to possess guns; it merely imposes a reasonable condition on the enjoyment of that right.”

An approach of this kind, now followed by many state courts under state constitutions that protect gun rights, would leave open the possibility that courts would invalidate the most draconian or severe restrictions on gun ownership, while also allowing the democratic process considerable room to maneuver. To be sure, some gun-control laws, including the law in the District of Columbia, are quite severe, and make a minimalist approach hard to implement. But even when confronting such laws, courts can rule in a way that leaves open many of the hardest questions.

Many people would like to reject a minimalist approach on the ground that...the legal materials, including the original understanding and the broader tradition, do not recognize an individual right at all. But whatever the founding generation may have thought, the Second Amendment has become a shorthand, or a rallying cry, for a deeply felt commitment on the part of tens of millions of Americans. There would be not merely prudence, but also a kind of charity and respect, in judicial decisions that uphold reasonable restrictions without rejecting that commitment, and without purporting to untangle the deepest mysteries about the meaning of the Constitution’s most mysterious provision.

I agree with that conclusion and recommend reading the whole piece.

Monday, November 26, 2007

Newegg.com Rebate scam!

UPDATE: Newegg has issued the rebate and sent it via UPS. I will have received it within the 10 business days I stipulated. Further, they have offered $30 towards my next order. Now I have to tell the BBB how satisfied I am. I will wait to get the rebate and verification of the $30 before responding to the BBB. Newegg has clearly resolved my situation. But they have not changed my conviction that we need some serious rebate regulation!

Today, Cyber Monday of all days, is 6 months to the day after I purchased my 32” flat panel HD display. You may recall how pleased I was that after a $50 mail-in rebate the $500 price even included shipping.

Here’s what the Newegg Rebate Status website says about the rebate I’m still waiting for today:

I have emailed them repeatedly and documented prior visits to the rebate status website here, here and here.

On Thanksgiving Day, 10 days after my last email enquiry, they finally replied, “We did not receive an original UPC symbol or proof-of-purchase tab with your request.”

Well, of course, they did!

I copied the code and documented the purchase of the extra postage and the larger envelope required to send it in. Color me suspicious, but this rebate abuse is a scheme to scam people out of their money. Why didn’t they contact me when they discovered the UPC code was missing? Why does the website to this very second say that my order is being processed?

I sincerely believe that these rebate abuses cry out for investigative attention and appropriate state and/or federal legislation. At a minimum, companies offering rebates should be required to clearly state who is offering the rebate (manufacturer or retailer?), how to contact the appropriate party, and how long until the rebate will be received. And they should pay a penalty when a rebate is late.

If any such laws are in place now, I have yet to find them!

I have filed a complaint with the Better Business Bureau; I will follow up with the state of Georgia and the Federal Trade Commission. I am confident that I am not the only consumer to have had this experience.

I wonder how many of us are willing to go through all that it takes to recover the rebate? In the extended entry I have copied their letter to me, my complaint to the Better Business Bureau and my last reply to Newegg. 

Read the rest of "Newegg.com Rebate scam!" in the extended entry.

Zero tolerance for motorists’ blood alcohol

Don’t go there:

On a May night in 2005, Debra Bolton, a lawyer and single mom from the Washington suburb of Alexandria, Virginia, was leaving the Café Milano in Georgetown after socializing with some friends. She had driven her SUV only a few hundred yards before she was pulled over by D.C. police for driving with the headlights off. She told the officer the parking attendant at Café Milano probably had turned off her vehicle’s automatic light feature.

Not mollified, the officer asked Bolton to step out of the car, walk in a straight line, recite the alphabet, stand on one foot, and count to 30. He checked her eyes for suspicious jerkiness and insisted on a breath test for alcohol.

The breath test revealed that Bolton’s blood alcohol content (BAC) was 0.03 percent, a level a 120-pound woman could expect after drinking one glass of wine. It was well below the 0.08 percent limit that marks a driver as legally intoxicated in D.C. It was not low enough for the arresting officer, however. This middle-aged mother of two, who hadn’t drunk to excess, who hadn’t run a red light or run a stop, was arrested, handcuffed, and fingerprinted for an innocent mistake. She sat in a jail cell for hours and was finally released at 4:30 a.m. Bolton spent four court appearances and over $2,000 fighting a $400 ticket. She then spent a month fighting to get her license back after refusing to submit to the 12-week alcohol counseling program.

The arresting officer, inaptly named Dennis Fair, insists: “If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C. We have zero tolerance*....Anything above 0.01, we can arrest.” Fair recognized that nearly everyone in D.C. was unaware of this zero tolerance policy. Still, he told The Washington Post, if “you don’t know about it, then you’re a victim of your own ignorance.”

So is prohibition working?

In 2000 President Clinton signed a federal law aimed at pressuring states to lower their BAC limits from 0.1 percent to 0.08 percent. States that didn’t go along were threatened with the loss of federal highway funds. Karolyn Nunnallee, president of Mothers Against Drunk Driving (MADD), predicted that a nationwide 0.08 percent standard "will save nearly 600 lives every year."

It hasn’t worked out that way. In the July 2007 issue of Contemporary Economic Policy, Sam Houston State University economist Donald Freeman examines the most recent data available and concludes "there’s no evidence that lowering the BAC limits...reduced fatality rates, either in total or in crashes likely to be alcohol related." This is true, he found, both in states that adopted a 0.08 percent BAC standard on their own and in states that did so under federal pressure.

Read on; it turns out that even the founder of MADD believes “the emphasis on .08 laws was not where the emphasis should have been placed. The majority of crashes occur with high blood-alcohol levels, the .15, .18 and .25 drinkers. Lowering the blood-alcohol concentration was not a solution to the alcohol problem.”

* the Zero Tolerance policy was defeated in DC in October 2005.

Saturday, November 24, 2007

GA trans pol accused of gender fraud

This in the reelection battle after she served as openly transgender for four years:

One of the few openly transgender elected officials in the U.S. faces a lawsuit from opponents who allege she deceived the public by identifying as female.

Two losing candidates in the Nov. 6 city council election in Riverdale, Ga., filed a lawsuit last week in Clayton County Superior Court against incumbent City Councilmember Michelle Bruce, accusing her of fraud for identifying as female.The lawsuit also alleges election fraud and seeks to stop a Dec. 4 runoff election between Bruce and the second-place finisher for her post. [...]

Deana Johnson, city attorney for Riverdale, said an answer to the lawsuit was filed Nov. 20 and denies all allegations in the suit including fraud by Bruce. She said the city is awaiting a hearing date.

“She is Michelle Bruce and has been for the past four years,” Johnson said. “She is identified as female on her drivers license. This is a frivolous suit. I really don’t understand what the allegation is.”

Matt Carrothers, spokesperson for the Secretary of State’s Office, said there is no place to identify gender on the form people file to run for political office in state, county or municipal elections.

“Nowhere on the form does it ask for the sex of a person,” he said. [...]

Bruce, who lives with her mother, said Tuesday that the lawsuit is painful, as is an anti-transgender website administered by anonymous opponents to mock her.

Via Autumn Sandeen:

As a transwoman, It’s a little frustrating to have the word “deceit” frequently linked the to “transgender” and “transsexual”—based on the concept that my transgender peers’ and my gender presentation is a bald-faced lie as too our “real” sex.

When I know how I present my gender isn’t a lie, but knowing that it’s widely perceived as one—well, it’s a little frustrating.

Friday, November 23, 2007

Sex-offender residency restrictions don’t work!

More on Wednesday’s GA Supreme Court ruling striking down residency restrictions for sex-offenders:

“It is apparent that there is no place in Georgia where a registered sex offender can live without continually being at risk of being ejected,” the ruling said.

The Georgia law had been considered one of the most comprehensive in the nation, not only for the breadth of its residency limits but also because it covered even the mildest types of sex offender, such as those convicted of having consensual sex acts as high school students. [...]

In finding the residency restrictions unconstitutional, the Georgia Supreme Court ruled that, by forcing a sex offender from his home, the law violated his Fifth Amendment right to be safe from the government “taking” his property.

Here’s the ruling. While I agree the reasoning is particularly interesting and could garner US Supreme Court attention, the efficacy of these laws needs to be examined.

While the argument for these laws is always about protecting children, experience tells us they don’t work:

You can find a very good discussion of issues presented by the residency restrictions on sex offenders by Lior Strahilevitz and many commentors at PrawfsBlawg’s “Sex Offender Residency Restrictions and the Right to Live Where You Want,” Aug. 3, 2005, and Michael Cernovich reviews many of the relevant legal issues at Crime & Federalsim, in his posting Doe v. Miller: The Legal Theories.  Residency restrictions have been in the news a lot recently, and have been covered well by Corey Rayburn Yung at Sex Crimes (e.g., here), and by Prof. Douglas A. Berman, at Sentencing Law and Policy weblog.  Last year, Prof. Berman pointed to “A potent and important prosecutorial statement against sex offender residency restrictions” (Feb. 9, 2006).  The document was released by the Iowa County Attorneys Association, an organization of county prosecutors seeking “to promote the uniform and efficient administration of the criminal justice system.” In its five-page statement ICAA explains that Iowa’s broad sex offender residency restriction “does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measure.”

USA Today had two stories this week on the dangers that come from sex offender homelessness resulting from these laws:

In Boston, nearly two-thirds of 136 high-risk sex offenders lack permanent addresses. In New York City, more than 100 registered at two homeless shelters. In Miami last month, 22 reported living under the Julia Tuttle Causeway that links the city to Miami Beach.

“People should be concerned about this,” says Jill Levenson, sex-crimes policy analyst at Lynn University in Boca Raton, Fla. She says homeless sex offenders are more likely to commit another crime.

Do you doubt her?

“Being homeless is also demoralizing,” Levenson says.

Sex offenders are likely to behave better if they have a stake in their community and “something to live for,” says psychiatrist Fred Berlin, founder of the Johns Hopkins Sexual Disorders Clinic. Sex offenders are increasingly being shunned and isolated. “They are the modern-day lepers,” he says.

Here I propose the death penalty for all of them. It is very clear to me that this is not about safety or prevention. It is naive and dangerous caving to the retributive proclivities in all of us.

Our punishment judgments are rooted in outrage - deterrence is secondary - and it would be better for all of us if we’d understand that. Maybe then we could start to come up with some measures to honestly and effectively address the very real problems of sexual dysfunction, abuse and deviance.

Standing on the sidewalk not a crime

In NYC:

Hanging out on the sidewalk isn’t a crime, the state’s top court has ruled, even if you and your friends are blocking people’s paths through bustling Times Square.

The New York Court of Appeals decided Tuesday to overturn the conviction of Matthew Jones, who was charged with disorderly conduct and resisting arrest on June 12, 2004. Police said other people “had to walk around” him, he wouldn’t move when asked and he flailed his arms.

Here’s the NYTimes story that brought the topic to my attention. No word yet on the reporter arrested for standing on a sidewalk in Miami.

Wednesday, November 21, 2007

GA court strikes down sex offender residency restrictions

It was a unanimous Supreme Court victory and I’d never have guessed the grounds:

The Georgia Supreme Court on Wednesday declared unconstitutional a provision of a 2006 state law that prohibits registered sex offenders from living within 1,000 feet of day care centers, schools, churches and other places where children congregate.

In striking down the residency restrictions, the justices said they can amount to an “illegal taking” because they force sex offenders who are homeowners to abandon their homes if a place where children congregate is suddenly built nearby.

“Sex offenders face the possibility of being repeatedly uprooted and forced to abandon homes in order to comply with the [law’s] restrictions,” Justice Carol Hunstein wrote.

“It is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected,” Hunstein added.

According to the Georgia Bureau of Investigation, there are almost 15,000 sex offenders on the state’s sex offender registry. While the court’s ruling focused on the issue of sex offenders who are homeowners, it appears to also extend to all sex offenders because the entire residency restrictions were stricken.

Tuesday, November 20, 2007

Juvenile Justice

The NYTimes says the Juvenile Justice and Delinquency Prevention Act of 1974 is up for reauthorization, and that’s an opportunity for needed reform:

As incredible as it seems, many states regard a child as young as 10 as competent to stand trial in juvenile court. More than 40 states regard children as young as 14 as “of age” and old enough to stand trial in adult court. The scope of the problem is laid out in a new report entitled Jailing Juveniles from the Campaign for Youth Justice, an advocacy group based in Washington. Statistics are notoriously hard to get, but perhaps as many as 150,000 young people under the age of 18 are incarcerated in adult jails in any given year.

As many as half of the young people who are transferred to the adult system are never convicted as adults. Many are never convicted at all. By the time the process has run its course, however, one in five of these young people will have spent more than six months in adult jails.

Some jails try to protect young inmates by placing them in isolation, where they are locked in small cells for 23 hours a day. This worsens mental disorders. The study says that young people are 36 times more likely to commit suicide in an adult jail than in a juvenile facility. Young people who survive adult jail too often return home as damaged and dangerous people. Studies show that they are far more likely to commit violent crimes - and to end up back inside - than those who are handled through the juvenile courts.

The rush to criminalize children has set the country on a dangerous path. Congress must now reshape the Juvenile Justice and Delinquency Prevention Act so that it provides the states with the money and the expertise they need to develop more enlightened juvenile justice policies. For starters, it should rewrite the law to prohibit the confinement of children in adult jails.

I recently attended a community forum on rewriting the Juvenile Justice Code in Georgia. I was the only non-professional, the only interested citizen, to attend. Hosted by JUST Georgia, they have an ambitious plan to overhaul the entire outdated inadequate system here.

I was impressed by everyone there and all I heard. My one piece of feedback to them was that there will need to be citizen participation, broad citizen support and understanding, if they imagine they will get such an overhaul through the Georgia legislature.

RELATED: Can a 9-year-old be a rapist?

Can a 9-year-old be a rapist?

I don’t think so. He can be sick; he can need help or treatment. But a criminal rapist in the sense that I understand it? The answer is just plain no!

I’ve been watching this story since it broke, speechless and wondering. How can a rational evaluation of even the basic facts be made through the filter of a sensationalist market press that has only one interest - making money.

A 9-year-old rapist is a market opportunity, three a market bonanza in today’s media ecology. Most especially, it seems, here in the Bible Belt. One of the boys is characterized as a third grader at a local Baptist school and a batboy for his church’s softball league.

We know that factoid for what reason except as an exclamation point for our disgusted outrage?

The only reasoned response I’ve seen is digby’s:

I do not have any doubt that it’s possible that these boys “raped” this girl. The legal definition doesn’t require penetration (and for all I know maybe that happened too.) If they did it, then they need to be dealt with in the juvenile system and given intense psychological counseling.

But what if it was “consensual” in the sense that the kids were all playing a game or the boys thought they were, or any number of other possible scenarios? Remember, we are talking about 8 and 9 year olds. They’re all hardly more than babies. No matter what it was, it cannot, by definition, be legally equivalent to a gang rape by adults or even teen-agers.

But this police chief says that even if it was a game or there were some other mitigating factors, the girl cannot, under the law, consent. Again, I’m not saying that it couldn’t have happened just as this little girl said it did. But it’s obvious to me that if an 8 year old can’t consent to sex --- which I agree, she can’t --- it’s equally clear that 8 and 9 year old boys cannot “rape” in the legal sense.

American culture has always been violent and somewhat backwards in these ways, at least compared to other first world countries. But in the last couple of decades we seem to be nurturing it to the extent we have lost all common sense and certainly any sense of proportion. Arresting little boys on charges of felony rape is not only ridiculous on it’s face, it demeans the entire justice system.

There is such a thing as prosecutorial discretion, something that is in very short supply in the Georgia legal system, apparently.

I whole-heartedly blame the prosecutor, but it’s the population that needs to wake up.

Sunday, November 18, 2007

Death penalty deterrent: let’s test it

I’m with the skeptics:

According to roughly a dozen recent studies, executions save lives. For each inmate put to death, the studies say, 3 to 18 murders are prevented. [...]

The studies have been the subject of sharp criticism, much of it from legal scholars who say that the theories of economists do not apply to the violent world of crime and punishment. Critics of the studies say they are based on faulty premises, insufficient data and flawed methodologies.

The death penalty “is applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors,” John J. Donohue III, a law professor at Yale with a doctorate in economics, and Justin Wolfers, an economist at the University of Pennsylvania, wrote in the Stanford Law Review in 2005. “The existing evidence for deterrence,â€Â� they concluded, “is surprisingly fragile.”

Gary Becker, who won the Nobel Prize in economics in 1992 and has followed the debate, said the current empirical evidence was “certainly not decisive” because “we just don’t get enough variation to be confident we have isolated a deterrent effect.”

But, Mr. Becker added, “the evidence of a variety of types - not simply the quantitative evidence - has been enough to convince me that capital punishment does deter and is worth using for the worst sorts of offenses.â€Â�

You know, I dislike and oppose the death penalty but I equally dislike life imprisonment. Lock ‘em up and throw away the key seems more inhumane - particularly with the way we treat prisoners - than a quick, painless death. Death is cheaper, too, if we do away with all those pesky procedural safeguards.

So let’s test it. Sex offenders already have de facto life sentences. We can start with them. Murderers next. The list is endless. Why not “three strikes, your dead?” Let’s go ahead and give in to the vengeance we feel to gather the quantitative evidence we need.

Thomas Cahill on Bill Moyers Journal last week:

THOMAS CAHILL: I think that there are many things within the human soul or within the human character that we ignore. There’s a tendency to violence in all of us. There’s even, I believe, a prehistoric desire for human sacrifice. We see it in all ancient cultures… Why have there been so many movies about Romans sitting in the Coliseum going like that? We get a kick out of it. The real evil in the world, it seems to me, is cruelty. That’s-- to me the word evil equals cruelty. It’s human cruelty that is evil. And you-- we all have to deal with that. We all have a tendency to that that we’re not willing - we’re not willing to acknowledge that this is inside of us. It’s there.

Cass Sunstein is quoted in the NYTimes piece, “The evidence...seems sufficiently plausible that the moral issue becomes a difficult one. I did shift from being against the death penalty to thinking that if it has a significant deterrent effect it’s probably justified.”

Meanwhile he was featured last week on TPM’s Table for One where, in an entirely different context for entirely different reasons, he pointed to an experiment involving jury behavior:

That experiment, conducted by Nobel Prize winner Daniel Kahneman, David Schkade and me, can be found here and in shorter form in Cass R. Sunstein et al., Punitive Damages: How Juries Decide (University of Chicago Press, 2003). The suggestion is that the experiment has implications for certain uses of the Internet, above all because it helps explain the dynamics of outrage.

To understanding the experiment, we have to begin with an earlier one, involving individuals, not groups (this study, also done with Kahneman and Schkade, can be found in the Punitive Damages book as well)… People are intuitive retributivists, and their punishment judgments are rooted in outrage. (Deterrence is secondary.) And if certain scales are used, outrage turns out to be stunningly uniform across demographic groups (at least in personal injury cases involving corporate wrongdoing).

Emphasis mine: If his finding that “punishment judgments rooted in outrage” have implications for the Internet don’t you guess they’d have death penalty implications as well? I’m no economist, or academic researcher, I’m a lay citizen admirer of both. My lay experience and intuition tell me that economics is no way to make these decisions.

And if those decisions are to be informed by economics, then it should be behavioral economics and the libertarian paternalist economics researched and favored by Sunstein himself.

I understand that these are deep, impenetrable problems with no easy or clear solution. But I expect that the research reported in today’s NYTimes piece (and this WSJ’s piece, too) will be understood by lay people - citizens, who are, like me, overwhelmed by the problem - as reason to give in to their Roman retributive proclivities and justify the pro-death penalty position.

I think that’s sad tragic.

Wednesday, November 14, 2007

RIAA v Georgian who was 13 or 14 at time of infringement

Recording Industry vs. The People:

We have just learned of a case being prosecuted in Columbus, Georgia, in which the RIAA is pursuing an 18-year-old girl based on infringements she apparently committed when she was 13 and 14, Elektra v. McDowell.

The RIAA moved for summary judgment.

The Court granted the motion to the extent that it sought an injunction against further infringement, but denied the motion as to damages, holding that there were factual issues concerning the defendant’s defense of innocent infringement.

RIAA’s Statement of Material Facts*
Defendant’s Opposition to Motion for Summary Judgment*
November 6, 2007, Order, Granting in Part, and Denying in Part, RIAA’s Motion for Summary Judgment*

* Document published online at Internet Law & Regulation

Youth Radio on Genarlow Wilson

Youth Radio did a piece on the Genarlow Wilson case:

ALIX
I asked my friend Alix Joslyn, who is a high school senior in Atlanta, what she thinks about Genarlow Wilson having been prosecuted as a sex offender.

JOSLYN (On Tape)
I just think that it’s one of the most absurd things in the world.

ALIX
I asked Alix because a few years ago, Alix herself had been a 15 year-old dating an 18-year-old guy at her high school. Alix doesn’t think that Wilson’s sexual partner was a victim…

JOSLYN (On Tape)
It’s not like she hadn’t consented to this. It’s not like he took advantage of her. And it’s not like she was young enough to not understand what she was doing. You know they were both young…and it’s ridiculous to think he is in any way a criminal at all.

Genarlow nemesis Eric Johnson is interviewed:

ALIX
Many of my peers complain that legal age limits seem to be randomly assigned. Eric Johnson is Republican president pro tem of the Georgia Senate. He admits that age limits are arbitrary, but says that they have to be set somewhere…

SENATOR (On Tape)
Some 13-year olds may be perfectly capable of driving a car and some 40 year-olds probably ought to be banned from the roads, but we can’t do that when we create laws. We have to establish at what point is the community standard for making certain decisions.

ALIX
Senator Johnson says laws need to apply to everyone. Age of consent statutes are designed to protect those who are physically but not emotionally ready for sex, from being manipulated by people who are older and more experienced.

SENATOR (On Tape)
A young female may feel, well, if I want this football player to be my boyfriend I’m gonna have to do something to keep him. She may not have the ability to make that informed decision of what the risks are of having sex, what the long-term effect on her psyche is just like drinking and smoking. I mean sex is far more dangerous than some of those other things.

That Johnson quote says it all. Sex is dangerous. Period. And so it must be outlawed. Those of us on the other side of the issue believe teens must be educated and the laws must be changed.

Some resources:

- William Saletan writing in Slate distinguishes between physical, cognitive and emotional maturity and offers up a thoughtful starting point for changing statutory rape laws.

- the Midwest Teen Sex Show creates a safe space for frank discussion of all things related to teen sexuality.

- In March Youth Radio did an excellent piece on the need for parents to talk to kids about sex.

For people like Johnson it’s easier to make kids into outlaws when it looks to me like the problem is the parents and we’re blaming the kids. They need us. Talk to your kids!

Monday, November 12, 2007

Troy Anthony Davis hearing Tuesday

Tomorrow the Georgia Supreme Court will hold a hearing for Troy Anthony Davis, convicted of murdering Savannah police officer Mark MacPhail in 1989 and sentenced to death, to determine whether the recanted testimony of seven of the nine witnesses in the case should be heard in a court of law.

I have to say that after reading the three AJC pieces in anticipation of the hearing, I do understand how hard it must be for the MacPhail family.

But it would be even worse if the real killer’s still free and the wrong man is behind bars. This from today’s AJC story:

Davis’ lawyers will tell the justices that the new testimony not only exonerates Davis in the murder of Officer Mark Allen MacPhail, but also implicates another man: Sylvester Nathaniel Coles.

Otherwise known by his nickname “Redd,” Coles still hangs out in Davis’ old Savannah haunts. On those streets, according to affidavits, he is considered a thug.

“Since Mr. Davis’ trial, substantial evidence has surfaced that shows not only that Troy Davis is innocent, but that Sylvester “Red [sic]” Coles murdered Officer MacPhail,” Davis’ lawyers wrote in a document filed with the Board of Pardons and Paroles. It is an assertion they repeat in their motion before the state Supreme Court.

This is a tale of two families:

In the summer of 1989, Troy Davis was almost 21 and living at his mother’s house in Cloverdale, a modest subdivision of tidy lots where the residents, mostly black, all knew each other.

His name had appeared five times on charge sheets in the Chatham County court system. The most serious charge: carrying a concealed weapon. He paid a $252 fine.

One police report said Davis’ alias was R.A.H. - “rough as hell” - a reference to his street acumen. His family says Rah was short for Raheem, his acquired Muslim name, which means “compassion” or “merciful” in Arabic. That’s how his family describes him.

His mother, Virginia Davis, said her son stayed at home to take care of a sister suffering from multiple sclerosis and left $80 on her dresser every payday, even though his minimum wage salary was meager. He wanted a better job, a decent life.

Mark MacPhail already had the stability Davis craved. The former Army Ranger was a Savannah police officer, happily married and the father of two: newborn Mark Jr. and 1-year-old Madison.

MacPhail was only 13 when his own father died of a heart attack, and he was especially close to his mother, Anneliese MacPhail. On dark days after his father’s death, he tried to cheer up his “Mumsy.” He would put on her clothes or an old hat to make her smile.

We all want justice:

The families of both MacPhail and Davis say they will pray for justice Tuesday.

But their prayers could not be more different: One asks for Davis’ death sentence to be imposed; the other that it be overturned. The first would close the murder case of Mark Allen MacPhail forever; the other would open it up all over again.

Saturday, October 27, 2007

A model of juvenile justice

The NYTimes says Missouri has turned its juvenile justice system into a nationally recognized model of how to deal effectively with troubled children:

Missouri has abandoned mass kiddie prisons in favor of small community-based centers that stress therapy, not punishment. When possible, young people are kept near their homes so their parents can participate in rehabilitation that includes extensive family therapy. It is the first stable, caring environment many of these young people have ever known. Case managers typically handle 15 to 20 children. In other state systems, the caseloads can get much higher.

The oversight does not end with the young person’s release. The case managers follow their charges closely for many months and often help with job placement, therapy referrals, school issues and drug or alcohol treatment. After completing the program, officials say, only about 10 percent of their detainees are recommitted to the system by the juvenile courts.

A law-and-order state, Missouri was working against its own nature when it embarked on this project about 25 years ago. But with favorable data piling up, and thousands of young lives saved, the state is now showing the way out of the juvenile justice crisis.

Again Georgians, it’s time we get out and advocate change for our outdated and inadequate juvenile justice system. If you’re in Gainesville, Augusta, Griffin or Milledgeville, there’s a town hall meeting coming soon to your town (scroll down). Go and speak up!

Court decision freeing Genarlow: scarier than Halloween

The pithy Senate President pro tem Eric Johnson on the court decision freeing Genarlow:

Senate President pro tem Eric Johnson (R-Savannah) condemned the ruling, saying that, by a single vote, the court opened the prison door for the release of “hundreds of sexual predators.”

Georgians, he said, “may cheer the release of Genarlow Wilson, but they should be scared to death of what that means for their own safety and the safety of their children. This is scarier than Halloween.”

He’s been singing that same song for a very long time.

BTW, I’ve been reading Johnson’s claim that 1,100 sex offenders could be freed to suggest that there are 1,100 kids in jail for sex offenses in Georgia. Thankfully, that is way, way wrong:

According to the Department of Corrections, as of this summer, 58 of 1,322 inmates imprisoned for aggravated child molestation were 18 years or younger at the time they were sentenced.

Johnson’s just been using the baseless notion that to free a kid opens up the prison gates for all sex offenders as a scare tactic to keep Genarlow locked up. I’d still like to know more about Johnson and McDade and the distribution of that sex tape.