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May 29, 2007

Judge Posner provides a great sentencing lesson

In the course of affirming a 30-year sentence for the producer of child pornography, Judge Posner writing for the Seventh Circuit in US v. Beier, No. No. 06-3374 (7th Cir. May 29, 2007) (available here) provides an effective lesson on post-Booker 3553(a) arguments.  Here is a brief excerpt from a short opinion that is packed with intriguing (and sometimes debatable) assertions:

The statute [3553(a)] does not attach weights to these factors, thus leaving the sentencing judge with enormous latitude, reinforced by the vagueness of some of the factors (what is "just punishment," for example?).  A party who fails to provide cogent reasons or credible empirical evidence for or against a proposed sentence is pretty much at the mercy of the instincts and intuitions of the sentencing judge.

The defendant failed to give the district judge any help in picking a sentence.  It was not nearly enough for his lawyer to point out that his client had been a victim of child molestation; the lawyer presented no evidence or studies to indicate that such a history makes a person less able to avoid becoming a child molester, let alone becoming a producer of child pornography (which might however be considered a form of child molestation when it involves photographing actual children in erotic poses).

May 29, 2007 at 11:16 AM | Permalink

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» 3553(a) and Sex Crimes from Sex Crimes
At Sentencing Law Policy, Professor Berman points to Judge Posner's discussion of 3553(a) factors in a child pornography case. Judge Posner points out that 3553(a) factors seemingly require empirical evidence to be introduced by the defense:The defenda... [Read More]

Tracked on May 29, 2007 4:48:50 PM

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