Tuesday, July 24, 2007

Reading Judge Todd

Debra Todd, currently Judge of the Superior Court of Pennsylvania, is a candidate for the Pennsylvania Supreme Court. In addition to her JD (Pittsburgh, 1982), she also received an LL.M. (Master of Laws in the Judicial Process) from the University of Virginia in 2004. As part of the requirements for that degree she wrote a masters thesis which she adapted and published as “Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late? A View from the Pennsylvania Bench” (109 Penn State Law Review 487).

The article is 77 pages long and very informative, yet accessible to a non-lawyer. I found it an interesting read and have already been able to use some of what I learned from it. It is definitely “chewy” but not dense. I was pleased to note that she mentions the political work of a number of individuals, of both parties. The sources she cites are broad ranging and show effective research; the footnotes are from legal cases, law statutes, statistical sources, journal articles from law, criminal justice, and social science journals, books, poetry. Emile Durkheim and Hillary Clinton are among the names scattered throughout the footnotes.

There are 14 sections to the text.

The introduction sets the tone. The first paragraph reads:

As an appellate judge in my fifth year on the bench, I can state with certainty that no cases have affected me more than those involving the sexual abuse of children. I have been astounded by the sheer number of such cases that come before my court and have, at times, been disturbed by what would appear to be the low-end sentences for these, the most appalling of crimes, perpetrated upon the most innocent and vulnerable members of our society.

The second section gives a concise outline of the historical treatment of children in America, also providing British legal antecedents. As early as 1696 the legal system recognized the ability of the state to intervene in family matters for the protection of children, although early on property interests were also a factor. The 1875 founding of the New York Society for the Prevention of Cruelty to Children was pattered on the existing Society for the Prevention of Cruelty to Animals. The legal precedent in Pennsylvania allowing abused children to be removed from their home was set in 1838. Pediatric radiologists were the first medical group to systematically note and categorize injuries that were frequently the result of parental abuse. Their findings were published in a 1962 article in the Journal of the American Medical Association. Federal legislation to address the problem came in the form of the 1974 Child Abuse and Prevention Act.

The third section discusses the epidemic of child abuse and is chock full of statistics, none of them pleasant. She reports on the prevalence of young abusers; younger children are frequently sexually abused by juveniles. As the age of the victim rises so does the age of the abuser. And, contrasting the stories we read in the news, most abusers are family members of friends of the family, not strangers. For abuse generally she found “The most common pattern of maltreatment was a child victimized by a female parent acting alone.” However, “In contrast, male parents were identified as the perpetrators of sexual abuse for the highest percentage of victims.” Girls are more likely to be sexually abused than boys. She also provides the rather shocking statistic that for children age 4 and younger the leading single cause of death by injury is abuse and neglect. For children under age 1 homicide is the leading cause of death by injury. Two other factors she considers noteworthy are that nearly one-half of the substantiated cases of child neglect and abuse are associated with parental alcohol or drug abuse, and households prone to domestic violence are at higher risk for child abuse as well. She also mentions the long term effects of childhood abuse and the problems those children encounter as adults, such as increased occurrence of depression, substance abuse and the potential to repeat the pattern as an abuser.

The fourth section is entitled “Despite Everything We Have Learned, Have We Really Evolved,” and discusses the language used by judges and the media which implies consent by abused children, such as referring to the sexual abuse as a “relationship.”

The fifth section delves deeper into “Where are the Perpetrators?” It reports a 1997 Dept. of Justice statistic that “60% of the 234,000 convicted sex offenders under the care, custody or control of corrections officials in the United States are on parole or probation.” In other words, out in the world. It also points out that while convicted sex offenders, once outside of prison, are less likely to be arrested again than other violent offenders, if rearrested it is more likely to be for the same crime. So while burglars might murder and murderers might assault, sex offenders tend to commit only sex crimes, and often in alarming numbers. From p. 514:
For example, in a study of pedophiles funded by the National Institute of Mental Health, the results revealed that each of the 453 perpetrators studied reported molesting an average of 52 girls or 150 boys. Another study revealed that the pedophiles victimized an average of seventy-two children.

The sixth section, “Criminal Behaviors and Theories of Sentencing,” contrasts those who believe criminals act as individuals and must be punished rather than rehabilitated and those who believe criminal activity is a product of environment (poverty, social conditions). The judge makes an excellent point in reporting research showing 78% of prison inmates have used drugs or alcohol compared with 37% of the general population. She also describes the three categories of correctional action: punishment, treatment, and prevention. Theory is not one of my strengths and those interested in correctional theory would do well to read this section themselves.

Section seven is on “The History of Sentencing in Pennsylvania.” It provides a very interesting but brief description of the influence of Quakerism on early Pennsylvania prisons and corrections, stressing confinement and rehabilitation, and the changes and amendments to the state’s penal code through the years. In 1987 the penal code was amended further to assign new guidelines which take into account the gravity of the offense, the offender’s prior record, mitigating factors, and establish a sentence range chart.

The eighth section, “Appellate Review of Sentencing in Pennsylvania,” discusses the difference between an illegal and a legal sentence, and the difficulty in appealing a legal sentence. Generally, the sentencing court has a closer look at the particulars of a case, including the character of the defendant and any indications of remorse.

The ninth section is on “Megan’s Law.” Then Gov. Ridge signed Pennsylvania’s initial version of Megan’s Law in 1995. It was struck down in 1999 and Megan’s Law II was enacted in 2000. There are significant but detailed differences between the two. One being that sexually violent predators, in lieu of an increased sentence, are required to “undergo lifetime registration, notification, and counseling procedures…” Todd also points out three problems with the registration process. First it requires the cooperation of the offender, to provide accurate information. Second, it may encourage vigilantism. Third, authorities may not have the resources to search for those don’t register, or to ensure that registration is done correctly. She also details some of the work done by then Auditor General Bob Casey, Jr. Among his findings:
According to the Auditor General, the State Police gave incorrect information to local police departments, schools, and child care centers nearly half the time, resulting in families no knowing that a sexually violent predator was living nearby, sometimes for weeks and even months.

Todd also notes the proposal to use a national sex offender registry so that offenders who move from state to state do not become lost in transit.

The tenth section is “Sexual Abuse Crimes in Pennsylvania.” One of Todd’s most important points in this section is that Pennsylvania, like most states, does not separately categorize crimes with underage victims, so sexual assault victims are listed together regardless of the age of the victim, although some crimes, such as statutory rape by definition involve children. The statistics for the years 2000, 2001, and 2002 are similar in that of reports of suspected child abuse, around 21% were substantiated and about half of those involved sexual abuse. Almost half of the abuse children were living in single parent homes, compared with about 30% living in homes with two parents. Almost 80% of the substantiated reports of sexual abuse involved girls. And perhaps most disturbing, “Of all perpetrators, 74% had a parental relationship (mother, father, step-parent or paramour of a parent) to the child.”

The eleventh section, “Some Pennsylvania Stories,” is difficult to read. It provides 19 brief descriptions of particular cases, giving the sentence handed down to the perpetrator.

Section twelve is “Considerations in Sentencing” is relatively short. Some of the concepts it covers are the pros and cons of having children testify (importance to the trial, possible further damage to the child) and thus the possibility of plea bargains to avoid children testifying. Also the reliability of child witnesses who may not be able to remember dates and places as well as adults. Since sexual abuse may not always leave physical evidence the trail can become a he said / she said of the accused and the abused.

The thirteenth section is “Pennsylvania’s Response.” This section covers some of the ways that the state is trying to protect child. One is the change in parole guidelines to put primary consideration on public safety. The legislature also increased the penalties for sexual crimes involving children. Todd quotes from State Rep. Ronald Marsico. She also mentions two 2003 ballot questions regarding legal testimony of children. Other items in this section are changes to law that allow the state to remove children from neglectful or dangerous homes. A kudo is given to Allegheny County District Attorney Stephen A. Zappala, Jr. and his work against domestic violence. Todd cites this alarming statistic:
Recognizing that 37% of Pennsylvania women who visit emergency rooms do so for injuries inflicted by an intimate partner and that domestic violence claimed 115 lives in our Commonwealth during 2000, …”

Some examples of community organizations working against domestic violence and child abuse are also given.

In the “Conclusion,” Judge Todd discusses some of the strategies employed by other countries. She also provides some specific recommendations for prevention and intervention:
better training in identifying and reporting cases of abuse for coroners, police officers, prosecutors, doctors, teachers, and social workers; increased funding for in-home support services for families at risk; teaching children that they have a right to say “no” to physical contact with others if it is sexually threatening; letting children know that they can and should confide in other adults if they are abused or threatened by someone; and establishing community-based crisis intervention services and education programs on child abuse.

More than once in the conclusion, and in earlier sections, Todd contrasts the public outcry when strangers abuse children and the relative ignorance of the large numbers of children abused in their own homes. She ends with this:

Our nation’s children deserve to feel safe and secure, particularly in their own homes. They deserve the carefree days of youth. Those of us whose decisions affect the criminal justice system, and whose voices can be heard, must be vigilant in protecting those children, the most vulnerable among us. Our children are entitles to nothing less.

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