Child Abuse Sentencing Dilemmas | The Hoglawyer

Monday, July 7, 2008

Child Abuse Sentencing Dilemmas

Posted By on Mon, Jul 7, 2008 at 4:57 PM

I heard a great interview with State Rep. Dawn Creekmore on the Dave Elswick show this afternoon. Creekmore has been consistently advocating for enhanced sentencing for convicted sex offenders for several years, and has been effective in getting many of her bills made into law. She has also successfully expanded the types of sexual offenses that are included on the Arkansas Crime Information Center.

Are minimum sentences appropriate for child abuse crimes?   Most of my professional career has been spent on child abuse and neglect issues, so obviously I'm not very sympathetic towards offenders. The problem with minimum sentences is that they obviously take away sentencing discretion from the prosecutor, judge, and jury. There comes a point in criminal sentencing where a defendant is willing to "roll the dice" that a child victim will be a poor witness or even refuse to testify instead of pleading guilty to what he considers an excessive minimum sentence.

In Massachusetts they are considering "Jessica's Law," a law that would impose stiff minimum sentences for child sex offenders. As Fox News reports, a state politician, James Fagan, who is also a criminal defense attorney, gave a floor speech against minimum sentences. "I'm gonna rip them apart," Fagan said of young victims during his testimony on the bill. "I'm going to make sure that the rest of their life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.” Fortunately, I can only think one one former and potentially future Arkansas State Representative who would feel the same way about minimum sentences.

    The issue comes down to whether we have enough faith in our prosecutors and juries to give an appropriate sentence for sex offenders. Setting a minimum sentence does send a message about what we will not tolerate. A longer prison sentence obviously makes the guilty pay through longer prison time. Every year a convicted sex offender is in prison is one more year he can't re-offend. So, it certainly has a deters the convicted offender from re-offending while in prison and once released.
    Do minimum sentences deter potential sex offenders? I would hope so, but I have  some  doubts.  There are about  a dozen or so  different sex offenses. Every two years we change the definitions and punishments, usually to make them more strict. Do all of these laws deter people? I'm not sure the common potential sex offender knows the difference in a class A,B,C,D or Y felony. Does the fact that we change a minimum sentence from 6 years to 15 years stop a potential sex offender from abusing a child? Since most sex offenders, like most criminals, don't assume they will be caught, they don't factor what their minimum prison time would be before deciding to sexually abuse a child. I think they know that if they are caught, they will be arrested and punished, but that is about the extent of their criminal calculator.
    A minimum sentence prevents prosecutors and even the defendants from reaching a compromise as to what a fair sentence should be. A minimum sentence may mean longer sentences for some offenders, but may ( and from my experience certainly will) lead to some offenders refusing to plead guilty and getting off when a child victim refuses to testify or testifies so poorly that a jury doubts their credibility
    I would prefer to give the prosecutor, judge, and even defendant the discretion to agree to a plea bargain based on the strength or weakness of the evidence. Where the evidence is rock solid - the prosecutor can be tough and offer a long sentence or let the defendant take his chances with a jury. Where the evidence is weaker - a short sentence or even probation with mandatory sex offender registration might be more appropriate - as opposed to losing a trial. A minimum sentence ties the prosecutor's hands as to what he can offer and we should be careful not to go overboard next legislative session.

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