Child porn sentencing
One of the things I did when I was on vacation was reread Tom Wolfe's Bonfire of the Vanities. It's a great book, and one of my favorite parts is where the main character, a bond trader, tries to explain to his six-year old daughter what he does for a living. I had a similar experience a long time ago, when my daughter, then about the same age, asked, "Daddy, what do criminal lawyers do?"
I smiled, pulled her up on my lap, and said, "Well, mostly damage control."
Take my friend Mike. I ran into him in the elevator in the Justice Center last summer, fuming because his client, who we'll call John, had just been sentenced in a child porn case. John had the misfortune of appearing before one of the two or three toughest judges on the bench, and gotten 24 years. "I oughta appeal it, but I don't handle appeals," Mike says to me. "You do appeals?"
"Does the Pope wear funny hats?"
So a couple of months later, I get the transcript, and this is what I mean about damage control. The stuff was found on John's computer. The search was legit. He'd confessed. So you try to work out the best plea possible, and then present the best arguments you can at sentencing: John's got no prior record, he's in his 50's, he's the caretaker of his elderly parents, there's no indication he ever acted out on what he'd watched, and in fact the psychological testing shows he's at a very low likelihood of sexually offending. Mike did all of those things, but there are certain things a client needs to do, too. Or not do. Like tell the judge that he downloaded the stuff out of idle curiosity, and had no real interest in it. Or act like he's sure he's going to get probation.
One of my key failings as a lawyer is that I don't like taking people's money if I can't do anything for them, and if the only argument I had to make on appeal was that the sentence was too severe, I wouldn't have taken the case. It's not impossible to win an appeal here in Ohio on that basis, but if you do, especially in a child porn case, book an immediate flight to Vegas, because you're never going to be luckier than you are that day. But there was also an Ice issue: the judge had given John consecutive sentences, and a couple months ago the Ohio Supreme Court had arguments in State v. Hodge, which addresses the question of whether Oregon v. Ice overrules State v. Foster's holding that judges don't have to make findings in order to impose consecutive sentences. If the defendant wins in Hodge, then John will be entitled to a new sentencing hearing, at which time the judge will have to make those findings before imposing consecutive sentences.
Well, big deal, you say. The "finding" in this case would be that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public," and that the harm caused by the offenses was "so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct." There's some well-defined standards, huh? Back in the pre-Foster day, an opinion reversing a judge for a failing to make sufficient findings to impose consecutive sentences was little more than a Post-It note saying, "Pssst. If this is what you want to do, this is what you have to say."
Of course, that's assuming it's the same judge. The judge who sentenced John had been mentioned as a target in the FBI's probe of Cuyahoga County corruption, and sure enough, she got indicted a month ago, and was suspended, with pay. She was up for re-election, and normally would be a shoo-in, but last week 141,519 voters voted for her opponent, deciding that they'd rather not give her $121,000 over the next year to do nothing until her case is tried, plus give a visiting judge another hundred large to handle her case load. That was exactly 15,952 more than the voters who thought it was a good idea to do all that. So if I hit on Hodge, John will have a different judge.
How will damage control play out then? Well, first we've have a facts of life talk with John, about what he can expect and his need to accept responsibility. But there's another issue here. Go back to that part about John never acting out on what he saw. That's the real debate going on right now: Are people who watch child porn likely to be child molesters? If not, there's not much justification for punishing them as severely as we do. (I'm also currently handling an appeal where the defendant kidnapped an 11-year-old neighborhood boy, held him in his apartment overnight, and raped him at least twice. He got 8 more years than John did.)
Mike had tried to raise that argument with the judge, pointing to testimony by several Federal judges at hearings before the Sentencing Commission contending that "the current sentencing structure for possessing or viewing child pornography is too severe." In fact, two recent Federal cases have made that very finding; the 3rd Circuit in this case upheld a sentence of 60 months, instead of the 235 months recommended by the Guidelines, and in this one the 2nd Circuit overturned a within-guidelines sentence on the grounds that it was too harsh.
The prosecutor at John's sentencing had anticipated this argument, and submitted a sentencing memorandum arguing that the "research" tells us that pornography watchers become child molesters, relying principally on the a study by psychologists with the Federal Bureau of Prisons, who, as reported in this article, claimed that 85% of those convicted of child pornography admitted to having committed acts of sexual abuse. But a couple of weeks ago I came across this article, which you can download here. It conducts an in-depth examination of the methodology and results from the Federal study, and does a pretty good job of showing that it's severely flawed.
So, if things go right, we'll have plenty of stuff for damage control at John's resentencing. And if you're defending a child porn case, now you do, too.
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