SORA Feelings

Many of you have asked me to write about my case, the prison system and Sex Offender Registration.  I am beginning that process with this post.  I hope it and the ones to follow are informative.

A major study recently published in the Univ. of Arizona College of Law and Univ. of Miami School of Law joint law review publication, Psychology, Public Policy and Law concludes that sex offender registration and notification laws have no effect.  This study was the first to look at the NYS law called SORA (Sex Offender Registration Act).  It traced the antecedents for the 50 state and federal laws.  While you might think the reasons for the passage of these laws was a wave of sex crimes and proliferation of repeat offenders, the exact opposite is true.

I'm no genius but none of this was news to me.  Contrary to public perception fueled by cable news and talk radio, the incidence of sexual crimes and especially those against children are on the wane and have been so for some time.  The study points out correctly that the sensationalism attached and the length of time given to reporting sex crimes is far out of proportion to their occurrence.  In fact, the study says, "the media reports sexual crimes such as rape by a factor of almost 14 times compared with the actual rate of incidence and to present sexual crimes in a manner that inspires fear significantly more than it does when reporting robbery, homicide or assault".  The study goes on to say that this distortion leads the public to perceive that sex offenders are not capable of rehabilitation although no research whatever supports that theory.  That is of course not to mention the ridiculous misapplication of these laws.  In Illinois public urination can cause you to be registered.  USA Today reported a case, I think it was also in Illinois, of a pizza store owner who witnessing one customer threatening a woman patron, grabbed the man by the throat and said, "if you ever do that again, I'll cut your balls off".  He was registered as a sex offender at a high risk level because of the risk he posed to society that he might cut people's nuts off.  Think how many times we hear that phrase in a day. Didn't Jesse Jackson say something similar about Obama?  He's from Illinois.  Should he be registered as a sex offender?  Of course these are ridiculous examples, that's the point.  Once we cross the Rubicon and diminish basic civil liberties then it becomes easier and easier to do.  I cannot imagine an instance where I would support registering anyone for anything.  But if I did it would have to be for the most heinous possible crime or greatest known threat. Think I am exaggerating about the effect?  States now register meth producers.  What possible evidence is there to suggest that someone arrested, convicted, sentenced and incarcerated would leaving prison and resume the production of meth?  The answer, none.  Yet some states now register them.  See how easy that was once we started registering sex offenders?  Where does it stop?  Especially when in both instances -sex offenses and meth production - it is based purely on fear without any supporting data.  As it stands now you can know that I went to prison for possessing 11 images of child pornography but you cannot know that the guy next door to you murdered the previous tenant or is a convicted terrorist.   Make sense?  Again to most of you it makes perfect sense.  Nothing I say will overcome the hysteria and fear.  Anything is logical if you will it to be so.  But there is a more compelling case for my argument.  The state and the federal government now have draconian (especially the feds) sex offender civil commitment laws on the books to keep one in prison after their sentence, should they believe they haven't reformed.  In the federal case they apply the applications so broadly and to so many cases -  without providing any guidelines as to how one can obtain release from commitment - that a federal court in conservative North Carolina ruled it unconstitutional.  What did the Bureau of Prisons do?  They moved all the inmates that they were seeking to civilly commit outside that court's jurisdiction so that they could continue with the commitments and that any appealed case would have to start fresh and take years.  Civil commitment laws now exist to prevent repeat, non-reformable offenders from going free, so the arguments goes.  Why continue the extraordinary practice of registering people?  Does no one understand what a huge diminution this is to our fundamental civil liberties? 

Why am I troubling you with this information?  Because at present I am involved in the process of being registered as a sex offender in NYS.  For the crime of possession of 11 images of child pornography I must be registered with the state - and soon the federal government - for the rest of my life.  That means, depending on the level of risk I represent, that I will have to provide my photo, fingerprints, DNA, home address, work address and have it posted on a website, forever.

Now I realize fully that many, if not most of you, think these laws are great.  They make you feel better and provide some comfort in the belief that "something is being done to this ever growing problem".  The reason registration and notification laws are constitutional is based on Supreme Court and NYS Court of Appeals decisions that these requirements are not punishment. Were they, they would clearly fall under the double jeopardy clause and would be blatantly unconstitutional.   I firmly believe that these court decisions were not premised on legal reasoning.  Rather, they were grounded in the public misconceptions regarding these crimes and fear of public backlash at striking them down.  No sane person can maintain that lifetime registration does not constitute a form of punishment after having served a prison term for the underlying crime.  Even post prison probation - clearly considered and acknowledged to be part of the punishment for the crime - is less intrusive and far, far shorter in duration than registration.

I am the child of Holocaust survivors; both my parents and grandparents.  My mother and grandmother had 'Juif' stamped into their passports by the French and the Nazis. The very notion of registering people, for any reason, makes me shudder.  Are the advocates of these laws seriously going to suggest that my family and the Jews of occupied Europe, who were legally bound to report to the local prefect of police on a daily or weekly basis to register their whereabouts, were not being punished?  That the act of registration is simply ministerial and not punitive?  Again, you cannot make that argument with a straight face.  Instead you make it from pure emotion; never a good indicator of successful legislation. 

All available data indicates that sex crimes, especially those against children, have the lowest recidivism rate of any major crime: robbery, drugs, homicide.  Again, contrary to the belief that unknown predators are lurking everywhere waiting to pounce on unsuspecting children, 93% of all victims of child sex crimes are known to their victims; either relatives or family friends.  You have a greater chance, by a factor of a thousand, that your child will be sold heroin at his/her jr. high school than that they will ever be approached by some sexual predator.

As for the internet and all this hysteria created by NBC and Chris Hanson, there is the simplest solution to the problem of online predators.  Something that could be enacted in a week and would, in all likelihood, resolve 95% of all crimes relating to internet offense directed at children.  Each state - I don't believe in most federal legislation, the 10th Amendment remember - should immediately enact legislation to require any entity that offers e-mail addresses or IM accounts, especially those companies geared towards children, mandate that a clearly visible label be attached to each sent e-mail or message for an account owned or used by anyone under the age of...pick a number.  It could say something like, "the individual you are messaging is a minor and every caution should be taken in your communications under penalty of State Law XXX".  Should it be 18, 17, 16?  It's immaterial. 

There should be penalties attached to the internet provider, the child and his/her parents for non-compliance.  If the advocates of child safety are so rabid that everything must be done to protect the children than surely this is a simple measure that would not cause much clamor.  There is more warning given in watching a videotape or DVD for the criminal penalties of duplication than Instant Messaging, texting or e-mailing with children.  In this way no adult could ever claim that they didn't know the age of the person they were communicating with.  Children could not pose as older teens or adults for the purposes of salacious chat or picture trading. Society in the main accepts that children lack maturity in most things.  Yet they are given free reign over powerful tools like the internet.  For research or learning, who could object with that?  But we've seen the proliferation of so-called 'Slam Books' and gossiping websites.  I am not for prohibiting them per se, but children should not be allowed to wander the internet freely when it comes to person to person communications.  For their own protection, as the child advocates would say.  The present solution, of course, is to go the other way and register sex offender's e-mail addresses.  Why?  Because it's punitive and makes us feel better.  Useful to the task?  Never.  As the study showed almost all registered offenders were first-timers not recidivists.  

Now let's get back to me.  With the exception of accompanying my brother to fight a speeding ticket, I don't know that I have ever been to a county court before.  That is before I was required to appear in one for a SORA hearing.  If you have been convicted of any type of sex crime you become a registered person with the state.  The point of the hearing is not to see if you should be registered, but at what level.  A Sex Offender Board in Albany fills out a form based on information from the courts, probation and your prosecutor.  Naturally, as in almost all aspects of this system the defendant (felon) is given no opportunity to weigh in.  The Board calculates your level based on a points system.  If you fall below a certain score you're a Level 1; between two more scores and you're a Level 2; higher than a certain number and you're a Level 3.  You are given points for various aspects of your crime. (I was assessed a Level 1 by the SORA Board.  You cannot be anything less.)  This score and its tabulations are forwarded to the local court in your home jurisdiction and to the local D.A.  A hearing is then held and a final Level is established.  All pretty cut and dry.  Or at least it should be.

I wound up in the Westchester County Court of the Hon. Jeffrey Cohen.  Judge Cohen does nothing else but hear sex cases, that's his specialty.  Better I assume to assign all these matter from arraignment through trial to one judge.  I'm not sure why it's better, but the county seems to think so.  I have now been summoned to Judge Cohen's court (eight) 8 times; all without having received a hearing.  You see defendant's don't have much rights in Judge Cohen's courtroom; only the prosecution, 'The People', have rights.  It is a surreal atmosphere, like no court I have ever been in.  I grew up in and around courtrooms.  The first job I remember my father having was as law secretary to a Supreme Court Justice in the Bronx (later to become an Appellate Division Justice - 1st Dept.).  I have known Judges from all courts: Family, Civil, Supreme, Appellate, Appeals, as well as Federal Judges from all levels excepting the Supreme Court.  I have served on state and federal juries.  And of course I have been a defendant in a federal criminal case.  But nothing could have prepared me for the goings-on in Judge Cohen's court.

I was brought up with an extreme reverence for the courts at all levels.  I have never been inside a court where I haven't worn a suit (except in my own case where that was not possible).  The first thing you notice when you enter Judge Cohen's court is his constant need to crack jokes.  Everything is a joke.  The sycophantic Assistant District Attorneys, legal aid lawyers and pro-bono counsels all guffaw endlessly at the Judge's jokes.  The next thing you notice is how lax everything is.  No need to stand when the Judge enters.  Cops testify in acid washed, torn jeans and sweatshirts.  The bailiffs - they like to be called court officers these days in the same way stewardesses like to be called flight attendants - conduct themselves like they were at a pub or gym.  They not only chew gum in court, they do so open mouthed and crack the gum regularly.  They perform calisthenics while defendants are being sentenced.  One "female" bailiff was doing lunges and swinging her arms wildly from behind to front culminating in the fist into the palm gesture.  All that was missing was the final snapping of the fingers.  But the worst part of this behavior is what they used to call "cutting up"; joking and laughing.  This is done by the bailiffs, again, standing behind defendants while they are being sentenced or arraigned.  It's not just that it is so wildly disrespectful to the Court, the defendant and to the process; it also, as I have seen first-hand, creates a serious appellate civil rights issue. 

As I was waiting on my fourth or fifth attempt to have Judge Cohen convene a hearing I witnessed a non-English speaking defendant being sentenced for a sex crime.  He had a court appointed interpreter.  Standing inches behind both of them were two bailiffs.  They were laughing and talking and guffawing loudly.  The interpreter was clearly upset and repeatedly shot them dirty looks in an attempt to shut them up.  It was apparent to anyone that she was not able to do her job effectively, thereby depriving the defendant of his right to understand that which was happening to him.  I kept waiting for the Judge to tell them to pipe down or have them remove themselves.  It is simply impossible that Judge Cohen wasn't aware of their behavior.  Remember he sits above all this literally.  This behavior is routine in his courtroom although I had not seen it this bad.  But no, not a word from Judge Cohen even when it was plain to anyone that the interpreter wasn't able to adequately do her job.  But Judge Cohen sentenced the man, he was escorted out and the Judge cracked another joke.

Two court observers have told me that they are unaware of Judge Cohen ever ruling for a defendant in a contested issue with the prosecution.  Yes, he'll split a bail request between the two sides occasionally.  But rule for the defendant in a black and white issue between defense and prosecutor?  I'm told it has never been seen.  Further, there appears to be no amount of delay or delaying tactics by the prosecution that Judge Cohen finds intolerable.  In my own case which began in July, I stated on that day I was ready for my hearing.  The prosecution said they need more time and Judge Cohen gave them 6 more weeks.  We returned to court.  Again, they needed more time; five more weeks.  Each time we objected. This went on and on.  On the third or fourth request for an adjournment the ADA announced that their need for additional time was based on their difficulty in obtaining evidence in my federal case due to a motion I had pending in federal court to prevent them from receiving said evidence.  I was furious.  It was a total fabrication.  I had no such motion in court, wasn't preparing one and had never prevented them from obtaining information.  I said through my attorney that this was 100% false, not a shred of truth.  For a moment Judge Cohen appeared to, perhaps, have had enough of the prosecutions delays.  He asked what proof they had.  The ADA said she wasn't handling the case and the ADA who was, had told her this.  The Judge called for a conference later that day with the appropriate ADA to explain the grounds for this charge.  I didn't stay around.  My lawyer told me that the ADA didn't bother to show up.  No explanation was forthcoming as to what basis they had to make this allegation against me.  And Judge Cohen gave them another 6 week adjournment.  No apology was ever proffered by the ADA for making this charge.  And to my knowledge the Judge lost interest in pursuing it.

Now you may say, I am just peeved at having a pro-prosecution judge.  Fair enough.  But here is why you should care.   As I said,  I personally cannot imagine a situation in which I would support the registration of our citizens but if I did it would have to be under the most extraordinary circumstances and with numerous safeguards built in.  This process I am currently involved in is frightening.  If you are a supporter of the process you should be equally concerned.  Because if it is meant to protect and inform you, it is failing miserably.  Take my own case.  I was accused and plead to possession of 11 images of child pornography.  That is all I was charged with and that is what I plead to.  The charge was 11 images found on a disk in my home.  There is no evidence and no suggestion - and believe me my federal prosecutor, Debbie Landis, turned the world upside down to find anyone, anywhere, who would come forward and make an accusation - of hands-on illegal behavior between me and a minor.  Further she attempted to find some suggestion that I had sought to induce, entrap, ensnare a minor.  Doesn't exist so she couldn't find it. 

Now in these Levels, a Level 3 offender is someone who has not only hands-on contact with a minor (because you can be a Level 2 offender with hands-on contact) but serious vicious and repeated behavior.  Moreover there needs to be evidentary proof to suspect you will behave this way again.  Last month at our latest attempt to have my SORA hearing before Judge Cohen, the District Attorney's office announced at the last second before the hearing was to start that they were seeking a Level 3 for me.  The ADA in the case who had been AWOL all morning came in as the hearing was starting, and hands my attorney a hastily prepared form showing that they calculate I should be a Level 3.  One piece of background.  There is a case recently decided at the Court of Appeals in Albany (Johnson v. NYS) that basically allowed the SORA Board in Albany to double and triple count in order to arrive at your points for a designation.  With the possible exception of a thought crime, you can pretty much never be a Level 1 anymore.  It was a unanimous decision.  I have read a number of U.S. Supreme Court decisions but never one from the NYS Court of Appeals.  I was shocked at how totally lacking in serious legal erudition it was.  I could have written this thing.  And I would certainly never, ever, make that claim about any Supreme Court decision.  If you read it you come away with the clear impression that it was written in total fear of appearing to side with "child molesters" although Johnson was a pornography case as well.  They conceded most all of Johnson's points and basically told judges to feel free to exercise their own discretion an ignore the Board.  But it was still a major loss to Johnson and anyone going through the process. 

The thing about the Board and the form is that it doesn't even recognize possession of child pornography as eligible for calculation.  The examiner has to check "Other" when describing the crime.  Now imagine this:  you get extra points if you possessed pictures of someone you didn't know, "a stranger", which of course is almost 99% of all child porn cases.  If you possessed pictures of someone you do know, no extra points. Although again, the form is written and designed for hands-on crimes.  So it it saying that sex with your niece or next door neighbor's toddler will earn you a lower score than a kid a few miles away you don't know.  I'm not exactly sure how that is supposed to make the nephew, niece or next door neighbor's kid feel any better.  In fact, since over 95% of hands-on crimes happen between relations and known parties you would think the greater deterrent - more points - would be assigned to knowing the victim.  But once you start measuring people's heads and quantifying their features in order to define racial purity, you can design a form and a system that will do anything. And rationalize it's methods.

Now it was obvious in my case that the ADA wanting another adjournment, filled out this form two minutes before walking into the court and essentially forced my lawyer to agree; since what they were asking for was so serious and required much discovery.  Additionally, they said that new evidence from my federal case that my federal prosecutor had promised them would be forthcoming.  They had said this in three prior appearances.  Judge Cohen should have said," Enough. This is clearly a naked attempt by the People to get an adjournment by coming in here at the last minute and announcing you've recalculated his points.  Further after three assertions of new information and seven months, there is no reason to believe this evidence is coming.  Let's start the hearing".  What did Judge Cohen say to the DA?  "How much more time do you need?"  Another adjournment.  Now bear something important in mind.  The "evidence" that my federal prosecutor has apparently promised them cannot be released without the signature of the federal judge in the case.  Yet she has promised it to them without Judge Kaplan's consent.  She even admitted in a motion last year that she could not release these documents without the Judge's consent.  Yet, given how she has behaved over the last 6 years I have no doubt she will ignore her own admission, defy Judge Kaplan, and turn over all material she chooses. 

But I said earlier you, the supporters of this system should care how bad it is.  If I am a Level 3 Offender than can there be no meaning to this registration system.  Is it informing you successfully?  I would have more respect for the system if it just labeled everyone convicted of an eligible crime "bad" and took uniform action.  It is this need to show that this is based on some legal and pseudo-psychological grounding that Levels exist and makes it so disreputable; the ability to predict future behavior based on fear.  If I am living on one side on your apartment with my crime and your other neighbor, also a Level 3, murdered, raped and decapitated 5 sisters all under the age of 12, are you served in having us both classified the same?  According to the DA, the answer is yes.  We present the same risk.  Make sense?  Like I said, to most of you it makes perfect sense. 

Comments

[tom]

Part of having a brilliant mind is curiosity and mental inertia. A person who serfs the net and picks a few fishes out of the sea of self-produced and distributed pornographic images of the under 18 exhibitionists out there is not neccessarily weak in the flesh. This simple possession of a few images after a search of his personal computer only suggests that he really is not very interested in such things. Remember they have forensic tool to also recover deleted images, and someone interested in this type of porn usuallyl has collections in the thousands, saveing any image you see is as simple as a click. I just wish people would be less quick to draw conclusions about a person just because they found something they did not want to discard and never be able to see or refer to it again. In my oppinion the treatment by the government of people in these cases is appalling and in the logic of Oscar Wilde If the government treats people like crimminals for things like this, then they don't deserve to have any crimminals.

[Pete]

I read your posts over the past several months and can only come away with the idea a brilliant mind has been squandered because of weaknesses of the flesh.

Great stuff.