A new look at child porn sentencing?
So you're a judge, and the first case on your docket this morning is a sentencing. The 48-year-old defendant -- we'll call him Joe -- was charged with 38 counts of distribution or possession of child pornography, and pled to 21 of them. The defense attorney's done a bang-up job: he had the guy go into treatment, and there are a number of reports indicating that Joe responded well to that. There's a report from a psychologist that indicates it's very unlikely that Joe would actually molest a child, and the testing by the court psychiatric clinic pretty much confirms that. Joe's never been in trouble in his life and has a good job, and the sentencing memorandum submitted by the defense is full of glowing recommendations by others and a statement of apparently heart-felt contrition by Joe.
Then you being reading the State's sentencing memorandum, and this is how they describe the first file they found on his computer:
"This is a compilation of video clips where the predominant theme is that of an adult nude male standing either over or in front of nude pre-pubescent females and ejaculating into either their mouths or their vaginal areas. In many of the clips the girsl are either crying or grimacing and in those instances the clip is repeated over several times. In a number of clips, the suspect is either holding the head of the child or the hair of the child, forcing that child to participate. In a number of other clips, the adult males are shown vaginally penetrating very young pre-pubescent females."
You scan the rest of the page, see a reference to another video where "the ages of the prebuscent girls range from 2-12 years old," and set the memorandum aside.
Jesus, you think to yourself, It's a good thing the guy pled or I'd have had to watch this stuff.
Disproportionate sentencing comes in two types: between offenders and between offenses. With 34 judges up here in Cuyahoga County, we have plenty of examples of the former. A couple years back, one lawyer representing a client who'd got caught up in the semi-annual child porn sting tracked the case of every other defendant who'd been nabbed at the same time. When his client got a 20-year sentence, he was thus able to present a record for the court of appeals showing that the other defendants got between probation and four years. This was at the time when the 8th District's sentencing analysis du jour had them reviewing excessive sentences to determine whether they were "outside the mainstream of judicial practice." But the panel was able to point to another defendant who'd also gotten a 20-year sentence. It turned out the same judge had handed down both sentences, and she was one of the judges caught up in the county corruption probe. So, for one shining moment which will hopefully be marked by future generations, the mainstream of judicial practice here was established by a judge who was ensconced in a Federal prison.
But disproportionate sentencing can also arise between offenses. In 2010, about eighteen hundred people were sentenced under the Federal porn statutes. They received an average sentence longer than those convicted of any other Federal crime except murder and kidnapping. Other studies have shown that at the state level, child porn offenders often receive longer sentences than defendants convicted of sex crimes against children. One former prosecutor in Kentucky recently lamented about his client's 16½-year sentence for possession of child pornography, noting that it was more than three times as long as the sentence he'd received a decade earlier for molesting three children.
But this raises the obvious question: why? To be sure, on the national level it's the result of a Congress intent upon proving its law-and-order bona fides by enacting increasingly harsher penalties. But at the state level, the truly Draconian sentences -- five years ago, the Supreme Court denied certiorari in a case where an Arizona man had received a 200-year sentence for child porn -- are largely the result of some judges imposing "max and stack" consecutive sentences.
On an empirical basis, there doesn't seem much justification for that. There are some claims that a large number of child porn offenders also molest children, but the methodology of studies showing that is open to serious question, as I discussed here. There's an argument that punishing those who possess child pornography will eventually dry up the market for those who produce it, but that theory didn't work out real well with drugs, did it? Besides, you're talking about a world-wide market, and in a number of countries child pornography isn't even illegal.
I think I know the reason for harsh sentences. I've been doing criminal law for a long time, and most crimes, why people commit them, I understand. I understand robbery and theft, and financial crimes; that's easy. Even violence I understand; some people have a hard time controlling their temper, and some people are just evil.
But I don't understand child pornography. I don't understand how anyone would want to look at the video I described above. (The description is word for word from the State's sentencing memorandum in a case I handled. And it's not the worst one.) I simply don't have a clue why someone would do that. I think that goes a way towards explaining why you see some of the sentences you do: the judge just reacts viscerally to something that he finds unimaginable and inexplicable.
At any rate, with the crack/powder cocaine disparity out of the way, the sentencing debate has now focused on child pornography. Especially at the Federal level, there's a backlash against the severity of the sentences. Two years ago, a survey of Federal judges found that seventy percent believed the sentences for receipt or possession of child pornography were too severe. (By the way, under Federal law, receipt of child pornography carries a mandatory 5-year minimum sentence; possession of child pornography does not. Go figure.) Forty-five percent of child porn sentences came in below the guidelines, more than twice the rate for all other crimes. The Sentencing Commission is wrapping up a three-year review of the issue, and will present its findings to Congress at the end of the year, and will probably suggest some reduction in punishment levels.
Good luck with that. The weapon of choice in political advertising is the meat cleaver, not the stiletto, and the first thing a Senator or Representative viewing the Sentencing Commission's report is going to envision is an ad featuring a bad picture of him on a black background with the words "SOFT ON CRIME" emblazoned across the screen and a narrator intoning that "Jim Hardfish voted to REDUCE penalties for child pornography offenders." There's little reason to believe that the Sentencing Commission's report is going to produce a reasoned, intelligent discussion of the penalties we should be imposing on people who possess child pornography.
The problem is, I'm not sure if the subject lends itself to a reasoned, intelligent discussion.
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