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Proportionality in sentencing

One December day in 2005, Carl Geddes decided to spend some time downloading kiddie porn.  Bad Decision #1 was to do it on a computer at the Cleveland Public Library.  Bad Decision #2 was to print it out.  Bad Decision #3 was to throw some of it into a lavatory trash can in the library.  Bad Decision #4 was to include with the jettisoned materials a copy of the resume that he'd copied at the library, which of course contained helpful information such as his name and address.  Considering that Carl was on parole from a three-year sentence for molesting a 9-year-old female relative in 2001, and had served a year for groping a 12-year-old neighbor girl back in 1992, one can only wonder what kind of job he was looking for.

His career plans were substantially deferred on April 19, 2006, when he appeared for sentencing.  Geddes had pled his twenty counts down to six of pandering sexually oriented material involving a minor, a second-degree felony.  The judge sentenced him to five years on each count, and ran the sentences consecutively.  The newpaper account reports that upon hearing the sentence, "Geddes cursed the court and his lawyer, demanded that he be able to retract his plea and shouted, 'This is ridiculous!'"

And last week, the 8th District agreed, finding that "the imposed sentence is manifestly disproportionate to the crimes committed by Geddes."

This wasn't the first time that the 8th District had thrown out a sentence on grounds that it was excessive, as I pointed out last year.  Nor is it the first time that a court has addressed the issue of proportionality, although the result is usually worse, as was the case in the 9th District decision I discussed a few months ago.  It would be nice to tell you that the court in Geddes synthesized those rulings and articulated a clearly-definable standard for trial judges to follow, but it didn't. 

Just two months ago, in State v. Tish, the court had rebuffed a defendant's claim that an 8-year sentence -- out of a maximum of 21 possible -- for various child porn charges was excessive, but the Geddes panel distinguished that case on the basis that there was "an inference of gross disproportionality" in Geddes' sentence.  In fact, in Tish it rejected the contention that there should be any comparison with other sentences unless there was an inference of gross disproportionality in the sentence under review.  Since the court found such an inference in Geddes' case, it could proceed to a comparison of the two cases, and found no difficulty in distinguishing them:  Unlike the defendant in Tish, "Geddes took responsibility for his actions, demonstrated remorse for his actions, and admitted to a prior history of sexual criminal conduct and admitted that he needs assistance with his problem." 

But the court never gets around to explaining the standards for determining whether "gross disproportionality" exists in the first place, allowing a comparison with other cases.  (While the court gives a cite for the "gross disproportionality" test, if you follow it through, it actually leads to a US Supreme Court case on the application of the 8th Amendment's Cruel and Unusual Punishment Clause to sentencing.)  One comes away from the court's opinion thinking that perhaps "gross disproportionality" is like Justice Stewart's definition of obscenity:  "I know it when I see it."

But maybe that's the best you're going to do here.  The primary function of an appellate court is to provide guidance to the lower courts, so as to harmonize their rulings.  Usually, that should be done by providing relatively clear standards for what should be done.  When those standards don't exist -- and they don't here -- the next best thing is to strike down the occasional ruling that lies outside what should be acceptable.

And Geddes probably fits that bill.  There's no question that the guy is a sleazoid, but there are a fair amount of people who do things a lot worse than download kiddie porn who don't wind up with anywhere close to thirty years.  One other thing the appellate court might have factored into all this:  as the newspaper account somewhat indelicately pointed out, the trial judge was "running for re-election amid criticism that she is soft on crime," and the sentencing was just a couple of weeks before the primary, which the judge would go on to lose.  I remember reading about the sentencing at the time, and thinking, tongue in cheek, that the best assignment of error would be ineffective assistance of counsel, because the lawyer didn't try to get the sentencing delayed a month.

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