Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Juvenile Law (page 1 of 2)

Moderate Requirements Results in Strict Penalties for Child Abusers. 

Witness swearing on the bible telling the truth in the court room

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Recently, the Seventh Circuit Court of Appeals reviewed what the district court called one of the most serious crimes it has ever seen. In doing so, it looks at evidence submitted during trial, consecutive v. concurrent sentences, supervised-release conditions, and restitution. So just what exactly occurred in USA v. Bour you ask?

Bour paid a woman on several occasions to molest her daughters, who were between 4-18   months and 3-5 years during the course of abuse. Bour, himself, sexually touched the youngest child, penetrated her mouth and genitals, and filmed at least two encounters with her. Additionally, he photographed the genitals of the older daughter. Bour later plead guilty to purchasing a child for the production of child pornography under 18 U.S.C. § 2251A(b), three counts of producing child pornography under 18 U.S.C. § 2251(a), and one count of possessing child pornography under 18 U.S.C. § 2252(a)(4). Bour was sentenced to life for purchasing a child for pornography production and 85 consecutive years on the remaining counts.

Bour objects to the description of the masturbation videos based on claims of the Fifth and Fourteenth Amendment right to privacy. Under 18 U.S.C. § 3661, Congress provides that for the purpose of imposing an appropriate sentence, no limits should be placed on information concerning the background, character, and conduct of a person. The guidelines, statutory law, and the constitution only limit information on certain enumerated characteristics from being admitted. Bour’s masturbatory conduct was relevant to sentencing in that it demonstrated that he took pleasure in producing graphic films.

The court reviewed Bour’s challenge on imposing consecutive versus concurrent imprisonment terms on procedural error and substantive reasonableness grounds. Bour alleges the district judge erred in failing to explain why he imposed consecutive sentences. If the sentence for the highest statutory maximum is “less than the total punishment, the district court may run counts consecutively”; when a ruling is made above this guideline an explanation must be given. Sentencing “based on factors sufficiently particularized to the individual circumstances of the case” will not be found to be in error. As the district court considered all factors set out in Bour’s memorandum and considered mitigation, no procedural error is found. Further, a sentence is not deemed unreasonable because it is above the advisory sentencing guidelines. “While a more significant justification is needed for a major departure from the guidelines, that justification need not be extraordinary”.  Considering the horror of Bour’s crimes, the district court did not abuse its discretion in substantive reasonableness. The judge believed it was necessary to ensure Bour never left prison.

The court reviewed the challenge of supervised release for plain error. Bour challenged six conditions of supervised release that were inapplicable to him, overbroad, or vague. He failed to show that his substantive rights, the criminal proceeding’s fairness or integrity, or the proceeding’s public reputation would suffer. As Bour is serving a life sentence he will never be subject to his conditions of release, therefore his point is moot.

Finally, Bour challenged the restitution award, which was reviewed for plain error. If a victim’s losses are not apparent ten days before sentencing, the prosecutor must inform the court, and the court shall set a final-determination date no more than ninety days from sentencing. As the minor victims had no guardian at the time of sentencing, the government could not decide the needed restitution until after the minors received court-appointed guardians. However, if the district court makes it clear that restitution will be ordered, the power is retained to set restitution after the time period. The district judge made it clear 89 days after sentencing that restitution would be ordered, reserving the right to set it at a later time.

The court affirmed all challenges in this order. This case sets out a precedent that not only will affect the defendant, but the rest of society. Bour’s case proves that children are among one of the most protected classes of individuals and we aim to keep it that way.

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Minimum Wage for Inmates?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA), which set the federal minimum wage at $7.25 per hour. But are detainees and pretrial detainees able to receive minimum wage when they acquire jobs in jails or prisons? The Seventh Circuit Court of Appeals helps us to better understand the answer to that question and more while reviewing Smith v. Dart.

Smith was a pretrial detainee at the Cook County Jail. He brought this claim pro se in a civil rights action under 42 U.S.C. § 1983 alleging that Sheriff Thomas J. Dart violated his federal rights by paying him insufficient wages and subjecting him to inhumane working and living conditions. The trial court dismissed the claims as to his insufficient wages and working conditions on a preliminary review under 28 U.S.C. § 1951A. Dart moved to dismiss the remainder of the claims for failure to state a claim for relief under FRCP 12(b)(6), or alternatively for a more definite statement under rule 12(e) .

In response, Smith sent two letters to the court. The district court did not address the first letter, and it treated the second letter as a motion to introduce evidence, which the court denied. The district court then granted Dart’s motion to dismiss as uncontested and dismissed Smith’s complaint without prejudice. Smith was informed of the pleadings deficiencies and instructed to amend his complaint and resubmit it. Smith attempted to do so, but the court construed his attempt as a motion for reconsideration, which the court denied. The court gave him a second chance at amending his complaint and Smith, again, attempted to resubmit an amended complaint, but the court again construed this pleading as a motion for reconsideration, which was again denied. The court then dismissed the case with prejudice pursuant to FRCP 41(b).

Smith then appealed his case to the 7th Circuit which reassessed his complaint because pro se pleadings are to be held to “less stringent standards than formal pleadings drafted by lawyers.” The court found that the trial court should have considered the first letter that Smith wrote in response to Dart’s motion to dismiss as it clarifies Smith’s initial pleadings. The court held that, as Smith’s letter alleges that the jail food did not meet nutritional standards in accordance with regulations, the claim should not have been dismissed. The letter further clarifies that the jail water is contaminated and contains various pollutants, constituting allegations sufficient to state a claim upon which relief can be granted.

As to Smith’s work wages, the court held that the federal minimum wage set out by FSLA was intended to protect all employees in the free market, of which he was not a member. As the jail is responsible for providing him with his basic needs such as food, shelter, clothing, and medical care, his job in the jail helps to offset those living costs. In conclusion, the court reversed the district court’s decision with respect to his inadequate food and contaminated water claims and remanded for further proceedings on those aspects. The Seventh Circuit affirmed the dismissal of Smith’s other claims.

This case demonstrates the demand for the judicial system to allow pro se defendants to be given the benefit of the doubt. Further, it puts an emphases on the importance of the Courts to not reject a defendant’s petitions based on rules that even the most educated lawyers struggle to master. Before an individual decides to break a law which may be punishable by jail or prison time, you may want to think twice. If being behind bars is not enough of a deterrent, an individual will be additionally be required to pay numerous fines, attorney’s fees, and may also be subject to less than desirable living conditions and very little—if any—pay for work.

Proportionality: 150 years is a long time



By: Faith Alvarez
Valparaiso University Law School
J.D. Candidate, 2015

According to an Associated Press report this week, the Indiana Supreme Court unanimously called for a reduction of the 150-year sentences two teenagers received for the fatal shootings of Stephen Streeter and his girlfriend Keya Prince in their Anderson home.

This wasn’t your average couple. One of the defendants, sixteen-year-old Martez Brown, said they had targeted the couple because Streeter was a drug dealer and kept large amounts of cash in the house.   And according to the opinion, the teenagers in fact left with several thousand dollars in cash, several pounds of marijuana, two video game systems, two flat-screen televisions, and a 9mm handgun. That was, they left after fifteen-year-old Jacob Fuller shot Prince in the chest and eighteen-year-old Na-Son Smith shot Streeter in the back of the head.

Seemingly unaffected by the deaths, where did the teenagers go with all the money? Disneyworld? No, Walmart, of course. After the robbery, the teens went on a shopping spree and were ultimately identified by police in a Walmart surveillance video.

Even though Brown was not one of the shooters, the State charged him with two counts of murder, one count of robbery, one count of burglary, and one count of theft, seeking a sentence of life imprisonment without parole. Brown waived his right to a trial by jury and after a three-day bench trial, the court found Brown guilty of all charges except burglary, which the state had dropped. At the sentencing hearing, the court decided to reduce the robbery charge to a class B felony due to double jeopardy concerns and found that theft was a lesser-included offense of the robbery. The trial court ultimately sentenced sixteen-year-old Brown to the maximum term of 65 years for each murder and the maximum term of 20 for the robbery, all to be served consecutively, resulting in an aggregate sentence of 150 years.

Brown challenged the appropriateness of his sentence all the way up to the Indiana Supreme Court.

The Eighth Amendment of the United States Constitution declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” In Solem v. Helm, the United States Supreme Court held that as a matter of principle, a criminal sentence must be proportionate to the crime for which the defendant was convicted. However, an extensive proportionality analysis is only required in cases involving life sentences without parole.

Article I, Section 16 of the Indiana Constitution, however, requires that “all penalties shall be proportioned to the nature of the offense.” The fact that a sentence is allowed by law does not relieve the court of the constitutional duty to review a sentence because the sentencing statute can be constitutional, yet unconstitutional as applied in a particular instance.

Pursuant to Indiana Appellate Rule 7(B):

The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.

In this case, looking at the nature of the offense, the Indiana Supreme Court found two important considerations for the nature of Brown’s offense. First, Brown did not kill anybody himself. Second, the murders in this case were not particularly heinous.

As for the character of the offender, Brown’s prior offenses were neither grave nor related to his murder convictions. The record also reflected that Brown had been using alcohol and marijuana since the age of 10. While this may be interpreted as evidence of bad character, the court viewed Brown’s drug use from childhood as “reducing his culpability for the life path that led him to this crime.” The court also recognized that psychology and brain science “continue to show fundamental differences between juvenile and adult minds in, for instance, parts of the brain involved in behavior control.”

In a footnote, the Indiana Supreme Court also criticized the trial judge’s statement, “[This crime is] a significant community tragedy and it requires a powerful response and my job, my role here is to act as the voice of the community and tell you what the community thinks about what you’ve done.” The Indiana Supreme Court disapproves of considering a community’s outrage in criminal sentencing.

Ultimately, the court reduced Brown’s sentence to 80 years and Fuller’s to 85 years.

The full opinion can be accessed by clicking here.

Do you agree with the reduced sentences? Does Indiana proportionality protection balance out controversial excessive mandatory minimums?

Indiana House passes concussion training bill

By: Kevin Hansen
Valparaiso University Law School
J.D. Candidate, 2015

On Monday March 3rd, the Indiana House passed a bill requiring high school and youth football coaches to undergo concussing training. The bill also includes a mandatory 24 hour hold out period for any athlete that has been removed from the game or practice with suspicion of a concussion. Indiana is the first of any state to pass such legislation focusing on the training of coaches to be better prepared in handling concussion like symptoms of their players.

The bill focuses the training of coaches on proper technique for tackling and blocking, heat stroke symptoms, proper fitting equipment and identification of concussions. Statistically speaking, football players have the highest rate of concussions and football itself shows to have the greatest proportion of concussions across any of the sports at 47.1- 56.8%.

This law is trying to protect children’s health as well as aid schools and coaches with their liability concern. Football is inherently dangerous but also incredibly fun. Players that agree to play assume the risk they will get hurt in the course of their time playing the game. Concussion lawsuits arise when the risk taken on by the player is increased because of a failure by a coach or trainer to properly identify symptoms  and allow that player back into the game; that is negligence. This law combats that issue by creating awareness of the symptoms while forcing coaches to be trained in handling these types of injuries and trying to prevent most of them from occurring. The mandatory 24 hour hold out period is also a big part of the legislation, it removes any gray area in the decision making process and influence the player may have in saying he’s “fine”. If there is suspicion of a concussion, the player is done playing for 24 hours.

This law may alleviate the ability to sue trainers or coaches for negligence but it still doesn’t attack the main problem of stopping concussions from happening. No matter what type of training on proper technique or symptoms of concussions, players will still get concussions and could ultimately be let back into the game before they are ready (healed brains) even though they feel like they can play.

What do you think? Good step in player safety? Will more states follow suit? Is this attacking the biggest problem?

Reading Program Helps Juvenile Recidivism Rate in Indiana


By: Michelle R. Laux
Valparaiso University School of Law
J.D. Candidate 2015

The Juvenile Justice system was created to help rehabilitate youth and prevent them from becoming adult criminals.  However, in 2010, the juvenile recidivism rate in Indiana was 39.2 percent.  The children who participated in juvenile deterrence programs or detention were being recommitted after completion and release.  The system programs had Band-Aid effects: temporarily relieving issues without addressing the core needs of the child.  The effect of sending children to the Department of Correction (DOC), a long-term detention facility for juvenile offenders, can easily be more punitive than rehabilitative.  However, early intervention has been effective in keeping young people from going down a path of crime.  Programs like Reading for Life have helped decrease the recidivism rate, which was down to 34.0 percent in 2012.

Reading For Life is a program developed in St. Joseph County, Indiana, offered to low-risk juvenile offenders as an alternative mandate for their probation, and uses novels to facilitate virtuous character development. The novels are uniquely suited to moral development because of the experiences and contextual relationships provided within.   The theory behind programs like Reading For Life is that by exposing the children to virtues and engaging them in moral education, it can encourage them to make prudent choices, despite any challenges facing them at home or in the community.  Dr. Alesha Seroczynski, the program director, explained: “We let the kids choose the books to read together as a group, and it’s very small groups; just five students with two mentors. We start talking about how the characters in the stories make life choices and which may or may not be virtuous and then they begin to think and journal about how they might make life choices that are more virtuous.”

Only three percent of Reading For Life graduates are ever convicted of another crime. The success of the Reading for Life program is evidence that moral development is crucial in reforming delinquent behavior.  The program has recently undergone the transition into a non-for-profit organization and hopes to expand from St. Joseph County into Elkhart County.  The expansion of the Reading for Life program provides hope that the Juvenile system is returning to its rehabilitative intent.  When the child is in the court’s care, the opportunity for reform and growth should not be squandered.  Handled properly, the court can develop any child’s potential and change their life track.  By implementing the virtues in their life decisions, the children will be able to overcome the challenges of society.

The children of today will be the people of tomorrow.  If the children are prepared to flourish in society through rehabilitating programs, there will be no need for the constant expansion of the prison industry.–245873431.html

Reforms to Juvenile Sex Registry


By: Michelle Laux
Valparaiso University Law School
J.D. Candidate 2015

State courts have once again found the implementation of the federal Sexual Offender Registration and Notification Act (SORNA) unconstitutional. For the second time in three months, Pennsylvania’s SORNA-based juvenile sex offender registration law has been held unconstitutional. The law required juveniles 14 years or older who are convicted of certain sexual offenses to register for at least 25 years. Marsh Levick of the Juvenile Law Center in Philadelphia stated, “We call juvenile court the court of second chances, this law takes away that second chance.”

Indiana juvenile sex registry laws are not as harsh, only requiring registration for 10 years. Further, under IC 11-8-8-4.5 juvenile commitment of a sexual offense does not automatically trigger registration but requires a hearing to determine by clear and convincing evidence that the juvenile is at high risk of recidivism for a sexual offense. However, Indiana’s law is not in compliance with SORNA regulations. Therefore, Indiana loses 10% of their federal funding from the Bureau of Justice Assistance Grant every year. For the fiscal year of 2012, Indiana’s losses were equivalent to approximately $526, 400. Currently, only 16 states are in compliance with SORNA regulations because the majority of states believe the requirements are too harsh.

Even state laws that have lower requirements for juvenile sexual registration than SORNA demands may still be too harsh. For example in Alabama, a state of non-compliance, Christian Adamek, a 15-year old, committed suicide after facing the possibility of being placed on the sex offender registry. Adamek was facing charges of indecent exposure for streaking at a high school football game. State and federal sex registry requirements need to be construed more narrowly to actually protect and inform the public of the danger of sexual offenders. Indiana’s law requiring a case-by-case application to determine the risk of recidivism before placing juveniles on the sex registry should act as a guide for other state and federal law.

Should the court use a case-by-case analysis? Is SORNA too strict?

Wisconsin Sex Registry Fee Ruled Constitutional


The Court of Appeals in the 7th Circuit held the lifetime condition requiring sex offenders to pay a yearly fee of $100 was constitutional. The two plaintiffs, Tobin Mueller and Gregory Deangelis, were convicted as sex offenders prior to the adoption of the Wisconsin sex offender monitoring law.  However, the Court of Appeals reversed the U.S. district court’s holding that the $100 fee was equivalent to a fine, and therefore unlawful “ex post facto” punishment.  The three-judge panel included Judge Richard Posner, Judge Diane Sykes, and Judge Frank Easterbrook.  Judge Posner commented, “The fee is intended to compensate the state for the expense of maintaining the sex offender registry.  The offenders are responsible for the expense, so there is nothing ‘punitive’ about making them pay for it.”

Mueller and Deangelis, who no longer reside in Wisconsin, but live in Connecticut and Florida, respectively, requested to remain unnamed in the proceedings.  The 7th Circuit also denied that request.  The plaintiffs’ argued that incidents of shunning, harassment, and disruption of their personal lives warranted them to remain anonymous.  Nevertheless, the court stated that the proceedings did not cause any additional harm than was already suffered by the plaintiffs.

JSOnline Article

By: Michelle Laux
Valparaiso University School of Law
J.D. Candidate 2015

US Supreme Court Found Life Without Parole Sentences for Juveniles Violates 8th Amendment

In 2012, Miller v. Alabama and Jackson v. Hobbs imposed life without parole sentences on two juveniles who were convicted of homicide offenses. In an opinion delivered by Justice Kagan, the court used the analysis in Graham v. Florida and Roper v. Simmons to base its decision. These cases held that juveniles as a class are less culpable than adults. Roper described three ways that children differ from adults, and are therefore constitutionally different from adults for purposes of sentencing. First, children have a “lack of maturity and an underdeveloped sense of responsibility.” Second, because they lack maturity, children are more vulnerable to outside influences, whether positive or negative. Children lack control over their surroundings, particularly their own family, and may be exposed to a crime-producing environment. Third, whereas adults have more formed characters, a child’s character is very malleable, with a higher possibility for rehabilitation.

The mandatory sentencing schemes in place in Miller and Jackson prevent the sentencer from considering the above factors. Justice Kagan emphasizes, “By removing youth from the balance—by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.” The United States Supreme Court, therefore, concluded that the 8th Amendment’s Cruel and Unusual Punishment Clause forbids a sentencing scheme that mandates life in prison without the possibility of parole for juveniles.

By: Michelle R. Laux
J.D. Candidate 2015

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