A few years ago, Roseberline Turenne, an 18-year-old aide at a Maryland day care center, used her cellphone to take photographs showing "the naked genitals and pubic areas" of eight little girls. Seven of the girls were lying on changing tables, while the eighth was standing in a bathroom. Turenne later claimed she was documenting preexisting diaper rashes, lest she be blamed for allowing them to develop while the girls were in her care.

Turenne was fired after the pictures were discovered because they violated the day care center's policies, which prohibited staff members from photographing children. She also was charged with eight counts each of child sexual abuse, production of child pornography, and possession of child pornography.

Discounting Turenne's explanation of her motive for taking the pictures, a jury convicted her on all 24 counts, resulting in a 126-year prison sentence. Last Friday, the Maryland Supreme Court upheld Turenne's convictions, concluding that the jury reasonably rejected her account, that her conduct met the elements of the three crimes, and that "the evidence was sufficient for the jury to conclude that Ms. Turenne took the photos of the children for the purpose of sexual gratification."

Although Turenne's astonishingly severe sentence was not at issue in this appeal, it vividly illustrates how laws related to child pornography can generate penalties that make little sense. Even if you join the jurors, the intermediate appeals court, and the Maryland Supreme Court in disbelieving her account of why she took the pictures, she did not share them with anyone, and she was not accused of assaulting the girls. Yet under Maryland law, Turenne will have to serve at least a quarter of her 126-year sentence—nearly 32 years—before she is eligible for parole.

People convicted of violent crimes in Maryland have to serve at least half of their sentences before they are eligible for parole. But someone who was convicted of voluntary manslaughter and received the maximum 10-year sentence still would have a shot at parole after five years. Even someone convicted of first-degree rape, which triggers a mandatory 25-year minimum, could end up serving less time than Turenne faces for noncontact offenses that consisted of nothing more than taking pictures.

That reality is especially troubling because it is not clear that Turenne committed the crimes with which she was charged. Just four out of seven justices agreed that all of her convictions were valid. In a partial dissent joined by Justice Brynja Booth, Chief Justice Matthew Fader concluded that there was insufficient evidence to convict Turenne of producing and possessing child pornography. Justice Shirley Watts concurred, and she filed a separate dissent arguing that Turenne's sexual abuse convictions also should be overturned.

As relevant here, Maryland law defines child pornography as a "visual representation" that "depicts a minor engaged as a subject…in sexual conduct," which includes the "lascivious exhibition of the genitals or pubic area of any person." Although the statute does not define "lascivious exhibition," the Maryland Supreme Court settled on a "content-plus-context" test for determining "whether the image is objectively sexual in nature."

The production and possession charges, in other words, did not hinge on Turenne's personal motivation. In concluding that Turenne's pictures were "objectively sexual," the majority noted that "all eight girls were partially or fully nude," that "all had nude genitals and pubic areas on display," that "none of the children's faces are visible in the photographs," that the picture "were all very similar to one another," and that several girls were in "poses that resemble what one might see in some adult pornography: the subject on her back, her legs spread, displaying her genitals."

Fader agreed with the test used by his colleagues but argued that they misapplied it. "I would conclude that none of the eight photographs at issue depicts a 'lascivious exhibition of the genitals,'" he writes. "Seven of the photographs depict a child on a diaper-changing table, naked, in a position that is fully consistent with a child having her diaper changed. The final picture depicts a child in a standing position in a bathroom, naked from sternum to the knees. None of the children are posed in anything resembling a sexual position. There are no other people in any of the photographs, nor are there any objects that are sexual in nature or that change the nature of the images from children getting diaper changes to anything objectively sexual."

Although "the framing of the photographs is a relevant consideration," Fader says, "the
framing here still makes clear that the pictures are of children during the process of a diaper change." And contrary to the majority's claim that the girls' "poses" are reminiscent of adult pornography, he adds, "the children are situated in the midst of diaper changes—a perfectly ordinary, nonsexual event—not posed in sexual positions. That an image of an adult posed in a similar manner might be viewed as an objectively sexual image—perhaps viewed as sexual because the position is unnatural for an adult in the ordinary course of a day, or perhaps just because of anatomical development—is irrelevant, because these are images of infants, not adults."

Fader says other "contextual elements" cited by the majority—including the photos' similarity to each other, the fact that "they were all taken at a daycare center," the fact that "they were all taken in the center's bathroom, where Ms. Turenne was secluded," her initial statement that the photos had "no meaning," and her "implausible documentation-of-diaper rash explanation"—were "relevant to the jury's consideration of Ms. Turenne's likely purpose in taking and keeping the images." They therefore were "proper considerations for the jury in determining whether Ms. Turenne exploited the children for her own benefit in connection with the child sexual abuse charges." But the test that the majority applied in upholding the child pornography convictions is supposed to be "objective," making her motivation irrelevant.

"The only contextual element that is relevant to the jury's understanding of what is depicted in the images themselves, to the extent it is unclear in any of them, is that the children in seven of the eight images were lying on a changing table and the eighth was in a bathroom," Fader writes. "But knowledge of the setting in which the pictures were taken does not add any element of objective sexuality to them, separate and apart from Ms. Turenne's subjective motivation. The other contextual elements identified by the Majority speak to Ms. Turenne's subjective motivation, not what is depicted in the images themselves."

To convict Turenne of the sexual abuse charges, the prosecution had to prove beyond a reasonable doubt that the photos constituted "exploitation of a minor," meaning she "took advantage of or unjustly or improperly used the child for…her own benefit." That "benefit," according to the prosecution, was "sexual gratification." Fader agreed with the majority that "there was sufficient evidence for the jury to infer that Ms. Turenne took the eight pictures at issue for her own benefit."

Watts, however, dissented on that point too. She notes that the prosecution made much of Turenne's sexual orientation, which Watts thinks improperly figured in the verdict.

During Turenne's trial, a prosecutor asked her if she was attracted to women. "I wouldn't say attracted to women," she replied. "I'm bisexual, like, I'm still confused about what I like between men or women. But not children, no."

The prosecution, which noted that all the photographs featured girls and presented testimony from a co-worker who said Turenne had told her "she was gay," argued that her sexual orientation was relevant in assessing why she took the pictures. Prosecutors also noted that Turenne had adult pornography featuring both men and women on her phone—although, contrary to what you might expect given the charges against her, there was no indication that she had "conducted any internet searches for child pornography."

The Maryland Supreme Court explicitly declined to consider that evidence. But Watts argues that it played an important role in the case. Turenne "was prejudiced by the admission of the evidence," Watts says. And "with these circumstances omitted, the remaining evidence is insufficient to support Ms. Turenne's convictions for child sexual abuse."

Watts suggests that Turenne's explanation of her behavior is more plausible than her colleagues think. "Some of the photos show redness or darkened areas—i.e., consistent with diaper rashes—near the genital area and/or in the fold of the buttocks, and one of them shows diaper cream in and around the fold of the buttocks," she writes. "Ms. Turenne testified that she took the photos to prove that children had diaper rashes before she started watching them. Although the jury evidently did not find this part of Ms. Turenne's testimony credible, the nature of the photos and the circumstances surrounding them being taken do not alone establish that the photos were taken for the purpose of sexual gratification."

The majority emphasized that Turenne initially denied taking the pictures, later said they had "no meaning," and did not offer the diaper-rash explanation until her trial. But Watts thinks Turenne's evasiveness and reticence are understandable in the circumstances, even without accepting the prosecution's theory of why she took the photos.

"Although the photos were taken clandestinely in violation of the daycare center's no-photo policy and Ms. Turenne initially denied having taken them, these facts were not sufficient for a rational juror to infer that the photos were taken for sexual gratification," Watts writes. "A rational juror could have inferred that Ms. Turenne took the photos because she was concerned about being blamed for diaper rashes and lied about having taken them because she knew doing so was against the daycare center's policy. A rational juror also could have inferred that Ms. Turenne took the photos while she was alone with the children because she knew that taking the photos was against the center's policy….Without consideration of evidence admitted at trial concerning Ms. Turenne's sexual orientation and possession of adult pornography, no rational juror could have found beyond a reasonable doubt based on the appearance of the photos that they were taken for sexual gratification."

Although Turenne did not challenge her sentence in this appeal, Watts notes that "the circuit court imposed an aggregate sentence of 280 years of imprisonment, with all but 126 years suspended, followed by 5 years of probation and lifetime registration as a sex offender." While "criminal offenses against children are heinous and must be dealt with appropriately," she says, "it is disproportionate and draconian to impose an aggregate sentence of nearly 3 centuries of imprisonment, with all but 126 years suspended, under the circumstances of this case." Whatever you make of Turenne's defense, that much seems clearly true.

The post A Day Care Worker Who Says She Was Documenting Diaper Rashes Got 126 Years for Taking 8 Photos appeared first on Reason.com.

Last November, federal prosecutors invited Ilene Wahpeta, an incarcerated woman, to give a victim impact statement at the sentencing of Andrew Jones, a Bureau of Prisons (BOP) employee who was convicted of sexually assaulting three other inmates.

Less than a year later, the U.S. government is fighting a petition Wahpeta filed for early release based on the same allegations that prosecutors previously invited her to speak about, arguing she wasn't a named victim in the criminal case against Jones and that her claims aren't credible.

The Justice Department announced in 2022, amid several damning investigations into sexual assault by staff in federal prisons, that it was working to expand a program for early release to include women who'd been abused behind bars, but Wahpeta's case is one example of what criminal justice advocates say is the Justice Department undercutting that policy. Lawyers representing incarcerated women filing for early release based on their status as sexual assault survivors say federal prosecutors are now routinely fighting to disqualify their clients because of an unreasonably narrow definition.

At the heart of the issue is a new policy passed in April 2023 by the U.S. Sentencing Commission that makes federal inmates who were sexually abused by staff eligible for compassionate release. Compassionate release is a policy that allows federal inmates to petition for early release for "extraordinary and compelling" reasons, such as terminal illness or family emergencies. However, the expansion included a major caveat that was added at the recommendation of the Justice Department. To be eligible, a prisoner's claim of sexual abuse "must be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding."

Families Against Mandatory Minimums (FAMM), a criminal justice advocacy group, has been coordinating legal representation for women who were formerly incarcerated at Federal Correctional Institution (FCI) Dublin, a federal women's prison in California that was infested with so much corruption, sexual abuse, and whistleblower retaliation that the BOP shut it down earlier this year. 

Shanna Rifkin, the deputy general counsel at FAMM, says they have secured releases for 17 women out of the 25 cases they've taken on. But Rifkin says government opposition has increased significantly since the new policy statement took effect.

"Before November 1, 2023, when this policy statement went into effect, in almost every single case the government was agreeing or not opposing the compassionate release motion," Rifkin says. "Since then, there has been a lot more resistance to compassionate release motions based on sexual abuse."

The Justice Department argued that requiring a finding of guilt would set a clear standard for judges. It wrote in a public comment on the Sentencing Commission's proposed changes that "permitting compassionate release hearings only after the completion of other administrative or legal proceedings will help ensure that allegations are more fairly adjudicated, prevent mini-trials on allegations, and reduce interference with pending investigations and prosecutions."

However, Rifkin says this undercuts one of the major reforms in the FIRST STEP Act of 2018. That act changed compassionate release to allow inmates to directly petition federal judges, significantly reducing the BOP's power to stonewall and delay petitions.

"It effectively puts the Department of Justice back in the driver's seat," Rifkin says of the new policy statement, "because who drives a criminal case? The Department of Justice. Victims of abuse have no say over when a case against their abuser will be brought, if it will be brought, and who will be charged as the victims in the case."

And while a finding of guilt may sound like a reasonable standard, it is a surprisingly difficult one to meet in cases of sexual assault perpetrated by government employees.

According to the Bureau of Justice Statistics, from 2016 to 2018, perpetrators of staff sexual misconduct were only convicted, sentenced, fined, or pleaded guilty in 6 percent of substantiated incidents in federal and state prisons.

Reason detailed last year how a cadre of corrupt guards at a federal minimum security camp in Florida was allowed to prey on women for years without oversight. Those guards eventually admitted under oath to internal affairs investigators that they had assaulted incarcerated women, yet most were allowed to retire and none was ever prosecuted.

Over the past year, the Justice Department has ramped up scrutiny of prisons and prosecutions of corrupt BOP employees, but even with more vigilant oversight, criminal cases do not move quickly through the court system, especially if the defendant goes to trial. Rifkin cited one pending case against a former FCI Dublin correctional officer who has been charged with assaulting three women. He was indicted in May 2023, but his trial isn't scheduled until 2025.

"So women who are survivors of his abuse ostensibly have to wait until the government has concluded their case in order to have a cognizable claim under this policy statement," Rifkin explains.

As for civil suits against government employees, they routinely take years to resolve, and settlements often stipulate that they do not constitute admissions of guilt by the defendants.

The difference between how petitions have been handled before and after the new standard was enacted is stark. Take the case of Aimee Chavira, a former inmate at FCI Dublin who says she was abused by five correctional officers and continued to suffer retaliation after she was transferred out of the prison.

When Chavira filed her compassionate release petition, only one of those officers had been indicted, and another committed suicide while under investigation. Nevertheless, the U.S. Attorney's Office for the Southern District of California filed a motion of nonopposition in response to her petition. Chavira was released in May of last year.

Contrast that with Wahpeta's case, where prosecutors have not only tried to apply the adjudication requirement but also attacked her credibility.

In a court filing opposing Wahpeta's petition, prosecutors note that Wahpeta never gave her victim impact statement because of objections from Jones' attorney and concerns that her story was insufficiently corroborated. The government also puts significance on the facts that she initially refused to cooperate with FBI investigators and denied being abused; that she didn't mention being abused in letters to her family she wrote while in solitary confinement; that she contemplated getting a lawyer; and that her descriptions of abuse were remarkably similar to the narratives of the named victims in the criminal case against Jones.

"Even when writing to her parents, her main concern was getting out of confinement early, not reporting what she had seen," federal prosecutors argue. "Also, defendant never mentions being a victim of abuse, but rather that she witnessed the abuse."

But this behavior is all too common in cases of sexual abuse in prison. Incarcerated victims of sexual assault often initially refuse to cooperate with investigators out of fear of retaliation from correctional officers, who remain in total control of their lives. Indeed, Wahpeta was put in solitary confinement while Jones was under investigation, and she remained there for more than two months before Jones was removed from the prison. Besides embarrassment or any other number of personal reasons, survivors are also often vague in communications with family because correctional officers can read their letters and emails.

Bay Area news outlet KTVU has interviewed dozens of women over the past two years about sexual abuse and retaliation inside FCI Dublin, and a lawsuit on behalf of multiple incarcerated FCI Dublin women described the repression inside the prison in detail: "Survivors who report sexual abuse are verbally threatened, physically assaulted, sent to solitary confinement, given false disciplinary tickets, have their cells tossed and property destroyed, have their mail (including legal mail) interfered with, strip searched, and transferred to other BOP institutions away from their families—and are even targeted for further sexual abuse."

In a sentencing memorandum filed in Jones' case, prosecutors were keenly aware of how retaliation works inside federal prisons. "To enforce the silence that was so critical to the perpetuation of his predation, Jones created an environment of intimidation, fear, and reprisal," prosecutors wrote. "It wasn't just words. Jones also enforced silence and obedience through violence and threats of violence."

Yet, now federal prosecutors take Wahpeta's silence as a mark against her.

"DOJ has already decided whether Ms. Wahpeta is lying. And it decided she isn't," Wahpeta's attorney wrote in a response. "It decided she isn't when the U.S. Attorney's Office for the Northern District of California invited her to read a victim impact statement at Officer Andrew Jones's sentencing hearing. If the government believed that Ms. Wahpeta was lying, it would have had a duty to tell the Court. It did not do so. In fact, until its response here, at no point during the duration of Ms. Wahpeta's cooperation with the government has the government questioned what happened to Ms. Wahpeta to either her or her counsel. Nor could it. Because it's true."

The Justice Department did not immediately respond to a request for comment.

The post Advocates Say the Justice Department Is Failing To Provide Relief to Women Who Were Abused in Prison appeared first on Reason.com.

Federal judges will be limited from enhancing defendants' sentences based on conduct a jury acquitted them of, a practice that has drawn condemnation from a wide range of civil liberties groups, lawmakers, and jurists.

The U.S. Sentencing Commission, a bipartisan panel that creates guidelines for the federal judiciary, voted unanimously Wednesday to adopt an amendment prohibiting judges from using acquitted conduct when calculating a defendant's sentencing range under those guidelines. The only exception is if the conduct "also establishes, in whole or in part, the instant offense of conviction."

"Not guilty means not guilty," U.S. District Judge Carlton W. Reeves, the chair of the Sentencing Commission, said in a press release. "By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system."

Although it sounds antithetical to what everyone is taught about the American justice system, at the sentencing phase of a trial, federal judges could enhance defendants' sentences for conduct they were acquitted of if the judge decided it was more likely than not—a lower standard of evidence than "beyond a reasonable doubt"—that the defendant committed those offenses. This raised defendants' scores under the federal sentencing guidelines, leading to significantly longer prison sentences.

For example, Reason's Billy Binion reported on the case of Dayonta McClinton, who was charged with robbing a CVS pharmacy in Indiana at gunpoint and killing one of his accomplices during a dispute after the robbery. A jury convicted McClinton of robbing the pharmacy but acquitted him of killing his accomplice. A federal judge nevertheless used the accomplice's death to enhance McClinton's sentence from the 57–71 months recommended under the guidelines to 228 months.

McClinton filed a petition to the Supreme Court challenging the use of acquitted conduct at his sentencing, but despite several Supreme Court justices previously expressing doubt about the constitutionality of the practice—including Justices Brett Kavanaugh and Clarence Thomas—the Court declined to take up the case last June. Reuters reported that four of the justices signaled they would defer to the Sentencing Commission.

The Justice Department opposed a previous proposal by the Sentencing Commission to limit the use of acquitted conduct.

"Curtailing courts' discretion to consider conduct related to acquitted counts would be a significant departure from long-standing sentencing practice, Supreme Court precedent and the principles of our guidelines," Jessica Aber, the U.S. attorney for the Eastern District of Virginia, testified before the Commission last February.

The Justice Department declined to comment on the new policy.

The practice also outraged members of Congress. For the past several years, Sens. Chuck Grassley (R–Iowa) and Dick Durbin (D–Ill.) have introduced legislation to ban the use of acquitted conduct at sentencing in federal trials, but so far none have passed.

In a statement today, Durbin continued to call for the passage of his and Grassley's Prohibiting Punishment of Acquitted Conduct Act, saying "this unjust practice must be prohibited under federal law."

"Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt," Durbin said. "However, federal law inexplicably allows judges to override a jury verdict of 'not guilty' by sentencing defendants based on acquitted conduct. This practice is inconsistent with the Constitution's guarantees of due process and the right to a jury trial. That's why I applaud the Sentencing Commission's important step to limit the use of acquitted conduct."

The post U.S. Sentencing Commission Restricts Federal Judges' Ability To Use Acquitted Conduct at Sentencing appeared first on Reason.com.