You're representing a defendant accused of child pornography in Cuyahoga County. You tell me everything about the offense -- that he's charged with about 65 counts, that there's nothing out of the ordinary (basically, that the charges don't involve anything besides downloading and possession). You tell me the defendant is 41 years old, has never been in trouble with the law, and that he's been in counseling for his sexual problems. You have a psychologist who'll come in and testify about that, and the results of the Static-99 indicate he's not a risk of ever molesting a child. He's got plenty of family support, and a decent job. You ask me, "How much time is he likely to get?"
"I have no idea," I tell you. "He could get anywhere from probation to a couple of decades in prison."
Then you give me one more piece of information: the name of the judge your client drew at the arraignment.
I can probably tell you within a couple of years what your client's going to get.
There's something wrong with that.
There were two child porn cases out of the 8th District last week, and we mentioned both of them yesterday. State v. Thomas presented an out-of-the-ordinary case: in addition to a cache of child porn, the defendant, a teacher, had engaged in sexual contact with two of his students. The judge had given him 93 years the first time around, and 21 the second, after the case had been remanded for consideration of allied offenses. As I explained yesterday, the court dismissed the second appeal for lack of a final appealable order, so we'll have to wait to see what happens.
We don't have to wait for a further result in State v. Mannarino; the court affirmed his 15-year sentence. Mannarino's lawyers argued that was too long, forcing the court to again confront the issue of disproportionality in sentencing. That's an issue that frequently arises here; as the beginning of this post indicates, the sheer number of judges gives a lot of opportunity for disparity. (Cuyahoga County has 34 judges in the general division; Franklin County, with only 80,000 fewer people, has half that many.)
The 8th has come up with a come up with a variety of ways of addressing that. One of the earliest approaches was to hold that comparison of other cases wasn't appropriate; the consistency in sentencing was achieved by "the trial court's proper application of the statutory sentencing guidelines." This was nonsense; consistency in sentencing means that sentences are to be consistent among judges, not that individual judges are consistent in their sentences. Then the court shifted to determining whether sentences were within the "mainstream of judicial practice." That led to the court upholding a sentence of sixteen years in a child porn case because it found that another defendant had received a sixteen-year sentence. By the same judge, as it happens, who later was caught up in the county corruption scandal, leading to the unseemly result that, for at least one brief shining moment, the "mainstream of judicial practice" in Cuyahoga County was established by a judge who would soon take up residence in a Federal prison.
Mannarino represents the court's rejection of yet another approach to handling the issue of disproportionate sentences. In his brief, he included a list of 18 cases involving other defendants charged with similar child pornography offenses in the county, "including the name of the case, the case number, the statutory offense each offender was convicted of and the number of counts, and the sentence the offender received." That's not a novel approach; it's the same one that was used in the last few years in State v. Siber and State v. Stein. With no success. In Stein, the court found that "these journal entries tell us little, if anything, of the offender characteristics and provide no information beyond the convictions and terms of the sentences." In Mannarino, the court is even blunter: "the cases that Mannarino lists do not tell us anything about the individual case, and thus, are of no use to this court."
No use? Disproportionality analysis obviously requires comparison of one case to another, and it makes little sense to contend that the only valid basis for comparison is the defendant's clone. We're talking about a comparison of similarly situated defendants, not identically situated ones. Or at least, we should be.
What's more, child porn defendants are similar, if depressingly so. All of them are white males, generally middle-aged, with no prior criminal record. All of them have between 40 and 120 or so images or videos on their computers. The court in Siber used the fact that "the number of pornographic images and the disturbing nature of those images" might provide a basis for a harsher sentence, but guess what: all the images are "disturbing." To be sure, there are outside the mine-run cases, to borrow a term from Federal sentencing law: cases where the defendant was engaged in production of the pornography, or where there are indications that viewing had progressed to acting out.
But there is ample evidence of what the mine-run is, of what judges here normally hand out in these types of cases. An analysis of that shouldn't serve as the complete discussion of disproportionality, but it should be the beginning of one.