An Interview with U.S. Congressman Ted Poe

To close National Victims’ Rights Week, I interviewed United States Congressman Ted Poe about his work chairing the Congressional Victims’ Rights Caucus. Poe observed that victims’ restitution can come in several different forms. Money is obviously one of those forms, but it’s not the only one. Click here to listen to the podcast.

An Important Victims’ Restitution Case in the Fifth Circuit

A woman identified by the pseudonym “Amy” was the victim of child sexual abuse. The abuse was photographed, and the pornographic images are widely circulated on the internet. An East Texas man named Doyle Paroline is one of the individuals who has viewed the images. Authorities found two images of Amy among 280 images of child pornography on Paroline’s computer. He pleaded guilty to possession of child pornography in 2009, and he was sentenced to federal prison.

At Paroline’s sentencing, Amy sought over $3.3 million in restitution from Paroline, pursuant to the Crime Victims’ Rights Act. 18 U.S.C. § 3771(a)(6). She arrived at the $3.3 million figure by combining her lost income, attorney’s fees, and the cost of her psychological counseling. The trial court, however, denied her restitution request, holding that in order to recover the restitution, Amy was required to demonstrate that Paroline – rather than the thousands of other individuals who have viewed the images – “proximately caused” her injury.

In March of 2011, the Fifth Circuit Court of Appeals overruled the trial court in a case styled In re Amy Unknown. The appellate court, in an opinion by Judge Edith Jones, held that there is no proximate cause requirement in the Crime Victims’ Rights Act, and thus the district court had erred in insisting that proximate cause be demonstrated.

This, however, was not the end of the story because in early 2011, the Eleventh Circuit Court of Appeals reached precisely the opposite conclusion. In U.S. v. McDaniel, Judge Charles Wilson’s opinion concluded that the Crime Victims’ Rights Act did include a “proximate cause” requirement. Shortly, thereafter, the D.C. Circuit Court of Appeals agreed with the Eleventh Circuit in U.S. v. Monzel.

Next Thursday, the Fifth Circuit will rehear In re Amy, along with their decision in U.S. v. Wright, yet another case involving a restitution claim by Amy. In Wright, Judge W. Eugene Davis directly urged the appeals court to grant a rehearing en banc to consider the vexing “proximate cause” question.

It is an important question and one with obviously significant consequences for victims’ restitution. If the Fifth Circuit once again interprets the statute as lacking a proximate cause requirement, then the circuit split will remain, and it is likely that the U.S. Supreme Court will feel the need to decide the matter.

For more on this case, see Professor Doug Berman’s comments or these comments from former federal Judge Paul Cassell, who represents Amy before the Fifth Circuit.

National Crime Victims Rights Week 2012

In 1981, Ronald Reagan signed an executive order establishing National Crime Victims Rights Week (NCVRW). This week marks the 32nd annual celebration of the week, which promotes victims’ interests and recognizes those who work on behalf of victims. NCVRW is managed by the federal Office for Victims of Crime, but people throughout the U.S. – for example in Oklahoma, Wisconsin, New Mexico, Arizona, Florida, and New York – are holding their own commemorations. Even Canada has begun to recognize the week.

Right On Crime will have coverage of NCVRW throughout the week, focusing on several core principles, among them:

  • Victims must be given the choice to participate, receive restitution, and even be reconciled with first time, non-violent offenders;
  • In appropriate cases, enable crime victims to choose pretrial victim-offender conferencing;
  • Victims must be notified about developments in the case against the offender; and
  • The amount and share of the restitution a victim collects should be used as a performance measure for probation and parole systems.

For a better sense of how sensible criminal justice reform would approach the interests of crime victims, read Right On Crime’s page on victims’ issues or read this Daily Beast piece which RoC signatory Pat Nolan penned about NCVRW just one year ago.

School Discipline: When Should Law Enforcement Step In?

This week, several schools and districts are grappling with the issue of when—if ever—it is appropriate for police officers to get involved with school discipline issues.

The Albuquerque school district, for example, is currently the defendant in a class action lawsuit over referring students to law enforcement for allegedly minor offenses. When a student was talking to her friend and refused to return to her seat, her teacher called the police.

In contrast, a Georgia six-year-old throwing a violent tantrum—which included destruction of property and assault, according to published reports—was arrested and taken away in a police cruiser. She was also put in handcuffs while in the cruiser, according to standard department policy, but to the outrage of many.

The Georgia example highlights that law enforcement may sometimes be required, but it is nevertheless essential that schools are not unduly relying on law enforcement and other serious disciplinary measures. A recent report out of California estimated that 40 percent of suspensions are for “willful defiance” or disrupting class.

This is a significant issue because suspensions translate to time out of school and lost education hours. Arrests for minor offenses often result in increased risks of further justice system involvement. While discipline is an important component of administering effective education, it is essential that it “fits the crime,” so to speak. Teachers and school district officials must create careful discipline policies that do not overly rely on the justice system or out-of-school suspensions for minor misbehavior that is more appropriately corrected with traditional school discipline methods.

Juvenile Mental Health Court in D.C. Shows Early Success

In Washington D.C., juveniles charged with certain offenses (including some misdemeanors and non-violent, low-level felonies) and diagnosed with a mental illness, can apply to be diverted to a specialized mental health court.

There, under the guidance of Judge Joan Goldfrank, youths are held accountable for their specific problem behavior—such as school attendance, substance abuse, or avoiding mental health treatment.

Early results are encouraging: out of the 56 enrolled in 2011, only eight were subsequently re-arrested. This rate, 14 percent, is far lower than the average re-arrest rates out of D.C.’s general juvenile courts, which hovers around forty percent.

While the Washington Post story highlights some of the problems a mental health court faces—namely, acceptance of a mental health diagnosis by a juvenile and his or her family—the early indicators of success (as measured through reduced recidivism and reduced costs), should make Washington, D.C. residents optimistic.

Prison Population Pressures Plague Two States

Rising prison populations in two states are stimulating legislative attention to criminal justice reform—and neither state, fortunately, is resorting to merely letting inmates out early. Instead, both states are turning to proven, evidence-based reforms that decrease unnecessary incarceration for non-violent, low risk offenders, and reforms keyed to decreasing recidivism rates.

In Alabama, Republican State Senator Cam Ward pushed sentencing reform through the Alabama Senate which would focus on non-violent offenders charged with drug and alcohol offenses, shifting the focus for those offenders from long prison terms towards community based programming that would include substance abuse programming. Senator Ward pointed to the 50 percent decrease in costs for this type of treatment as evidence that prison bed space as well as taxpayer dollars would be more efficiently prioritized in Alabama with this legislation.

In South Dakota, however, experts are seeking to pass legislation next year that would deal with higher rates of recidivism as well as low-level, non-violent offenders. After hitting record high prison populations, the state started looking at why—and realized fewer inmates were working to become eligible for parole, and recent spikes in parole violations.

The state hopes to have legislation ready in 2013 that would deal with substance abuse issues—such as drug courts and DWI courts—to stem the flow of inmates into the system, tailored treatment for female offenders, and targeted intensive reentry services for younger ex-inmates to put more of them on the track to productive, law-abiding lives.

Jobs for Inmates In and Out of Prison

For a prisoner exiting the corrections system, the ability to secure steady employment may determine whether he or she is able to successfully reenter society and begin a productive, law-abiding life.

In Texas and New York, two vocational programs—one for those behind bars and one for those freshly out—aim to increase the odds that an ex-inmate will be gainfully employed.

The Texas Correctional Industries system includes factories in 37 prisons for over 5,000 inmates, and it produces license plates, inmate clothing, tires, signs, furniture, shoes, and repaired computer equipment. TCI boasts a recidivism rate for its longest tenured employees that is half that of the general population. It aims not only to keep prisoners busy while behind bars, but also to provide technical skills useful for the job hunt on the outside.

In New York, the Transitional Jobs program out of the Center for Employment Opportunities puts ex-offenders to work, first by learning soft work skills, then through low-skill employment. An independent evaluation of the Transitional Jobs program found that it reduced recidivism by 16 to 22 percent.

Criminal Law and Antitrust

At times, prosecutors have used the Sherman Antitrust Act for regulation via criminal penalty. The Act, as it stands today, begins:

“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.”

Originally passed in 1890, the Act was intended to give the federal government the power to criminally prosecute monopolies and cartels. Far too often, however, it is used without evidence of traditional monopolistic behavior or illegal cartel actions, and is instead aimed at large corporations whose successes create a high bar for other market entrants (see, e.g., United States v. Microsoft).

With a hefty criminal penalty looming—one million to one hundred million dollars, or ten years in prison, or both—it is essential that antitrust law only regulate those activities constituting a truly criminal “restraint of trade,” while not sweeping up mere market dominance or superior innovation in its path.

To that end, legislation was recently introduced in Congress that would make explicitly clear that the Sherman Antitrust Act does not involve voluntary economic associations, agreements, or cooperation. Such limiting legislation might ensure that criminal penalties are narrowly focused on the economic activity intended to be prohibited, and do not too broadly inhibit marketplace growth and self-selection.

An Update on Juvenile Justice Reform in Georgia

The outlook was bright when the House voted 172 – 0 to pass ambitious legislation that would rewrite nearly every section of the state’s juvenile code.  But the outlook proved to be too bright when the Governor’s Office said it wanted more financial analysis and the current bill died.

Much like adult criminal justice reforms, the bill emphasized treatment over incarceration when appropriate for juveniles.  It also made changes to policies that regulate foster care, permanent placement hearings, adoption codes, family mitigation hearings, children who are status offenders and the rights of parents.  None of the changes would have been enacted until July 1, 2013.

Advocates – and there are many inside and outside government — believed they could work out funding details before July 2013 and during the next General Assembly.  That strategy came up short at the Governor’s Office and the bill never reached the Senate.  It has been at least five years since hard work was begun to rewrite the code and it will be at least one more.

Resources:  House Bill 641.  Georgia Public Policy Foundation Issue Analysis.

An Update on Adult Corrections Reform in Georgia

When the final ink was dry, everyone in the Georgia legislature agreed it is time to move forward with widespread criminal justice reform.  The House voted 162-0 and the Senate 51-0 in March on legislation that will emphasize treatment programs over hard-time incarceration for some property crime offenders and low-level drug users.  From the beginning, supporters said these are not going-soft-on-crime strategies.

New ideas adopted this year recognize the state cannot continue to absorb more than the $1.5 billion per year that it spends on prisons, parole and probation.  State prisons hold 56,000 inmates and each day local jails contain hundreds to thousands of inmates who are waiting for an empty state bed.  Georgia also has 22,000 adult parolees and 156,000 on felony probation.

These ideas will take years to fully incorporate.  They include new and expanded accountability courts, especially drug and mental health courts that will reroute eligible offenders into treatment programs with severe oversight.  New definitions and penalty levels were established for several property crimes including theft, burglary, shoplifting and forgery.

The state will move toward prosecution of drug offenses based on the type and weight of drugs to clarify the distinction between casual users, sellers and traffickers.  Child abuse laws were tightened as were requirements for reporting suspected sexual abuse and suspicion of human trafficking.

Criminal justice reform is not a single year issue.  It will take money and time to develop public and private resources.  Sheriffs and the county district attorneys are concerned about the impact of reform on their budgets, facilities and staffs. Everyone already knows this will take a steep learning curve and some corrections are likely.  Governor Nathan Deal kept the Special Council on Criminal Justice Reform intact and it is expected to have new assignments this year.

Resources:  House Bill 1176.  Georgia Public Policy Foundation Issue Analysis.