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October 15, 2007
Arizona prosecutor drops child-porn charges after convictions(!) to avoid "disproportionate" sentence
A helpful reader sent me this interesting article from Arizona describing a case in which a local prosecutor has dropped numerous child-porn charges "in the interest of justice" --- after a conviction was obtained on these charges! Here are the particulars:
Mesa jurors found a defendant guilty on nine counts of child-pornography charges, setting him up for a potential 90-year sentence under Arizona's tough dangerous-crimes-against-children law. But, in a rare move, the Maricopa County Attorney's Office urged a Superior Court judge to drop five counts, leading instead to a 40-year sentence handed down Oct. 5 for Todd Robert Laughlin.
Laughlin, 46, was convicted of possessing three movies and six computer images depicting children performing sex acts. A motion filed by prosecutor Ronald M. DeBrigida Jr. noted that jurors found Laughlin guilty of all nine counts Aug. 21, but asked Judge Helene Abrams to dismiss five counts, saying that it was "in the interests of justice." He offered no further explanation.
Deputy County Attorney Daniel Strange prosecuted Laughlin, but the motion was filed by DeBrigida, a supervisor in the office. Maricopa County Attorney Andrew Thomas was unavailable for an interview but released a statement. "Upon further review of the facts in this case, I concluded that the mandatory 90-year sentence facing the defendant was disproportionate to the offenses he was convicted of," Thomas' statement said. "As a result, our office exercised its prosecutorial discretion in dismissing five of the criminal counts, so that the mandatory sentence now will be 40 years in prison," it said.
Barnett Lotstein, one of Thomas' top assistants, said his office tried Laughlin on nine counts to prove a pattern of child pornography, removing any possible defense that he accidentally accessed child pornography on the Internet. "It's not uncommon to look at a case again and re-evaluate it," Lotstein said. "He (Thomas) is not being soft. Forty years is a harsh sentence. Murderers serve 25 years."
Regular readers will recall that similar stacked child-porn charges against a former Phoenix high school teacher, Morton Berger, ultimately led to Berger receiving a 200-year prison sentence (basics here, commentary here and here). Though the Supreme Court denied cert in Berger (details here and here), Mr. Berger likely has a habeas claim in the works; the statements from the prosecutors in this other case should provide some help for his sentencing claims.
October 15, 2007 at 02:51 PM | Permalink
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As is often the case, the unstoppable Professor Berman beat me to the punch on this strange story:Mesa jurors found a defendant guilty on nine counts of child pornography charges, setting him up for a potential 90-year sentence under Arizona's [Read More]
Tracked on Oct 15, 2007 10:54:49 PM
Comments
Because 40 years is so proportionate for a non-producer.
But, I guess this prosecutor was actually thinking about protecting his verdict.
Posted by: S.cotus | Oct 15, 2007 3:20:54 PM
40 years while murderers get 25 years? not to mention that this guy had very little stuff compared to other lifetime collectures. I think this case would fall under unusual punishment, but under the current sex hysteria, I doubt anyone will step up in his defense.
Posted by: EJ | Oct 15, 2007 3:46:02 PM
He'll be 86 when the forty years are done, so it still might be a life sentence. Have to admire the courage of the prosecutors though because that was a brave move.
Posted by: George | Oct 15, 2007 3:53:39 PM
If you are going to show mercy because child porn sentences are too serious relative to murder sentences, why don't you dismiss seven instead of five?
A twenty year sentences is less than murder, a forty year sentence is still well in excess of murder in a case where nobody was killed.
Also, the man's life expectency, actuarially, is to live to about 76, and I suspect, although I don't know for sure, that child porn offenders in state prisons have a below average life expectency.
Of course, one supposes that 40 years may not really mean 40 years, and that a realistic release date from a 40 year sentence may be quite a bit sooner than an age 86 release date (perhaps as early as 20 years, locals would know better).
But, no matter how early the release date is, it will still be later than the release date for a murder, and unlike a murder conviction, will likely carry a lifetime sex offender registration requirement.
The move seems more tactical than merciful. It may be easier to defend a 40 year sentence on appeal and to be able to argue that you actively sought to limit the sentence, than to defend a 90 year sentence, even if they both amount to life in prison.
Perhaps an appeal isn't even the issue. This may simply be a date calculated to give the state a real chance of avoiding having to pay a funeral bill and expenses associated with a final illness out of the corrections budget, effectively making the sentence just a little harsher.
Posted by: ohwilleke | Oct 15, 2007 4:17:53 PM
"The move seems more tactical than merciful. It may be easier to defend a 40 year sentence on appeal and to be able to argue that you actively sought to limit the sentence, than to defend a 90 year sentence, even if they both amount to life in prison."
Bingo. The defendant just lost any and all appeal claims he might have had, as the response from the prosecutors and the court will be: "you're lucky you don't have a 90-year-sentence. Now go away."
Posted by: Anon | Oct 15, 2007 4:29:40 PM
The one time I should have been cynical, I wasn't.
Consider my praise retracted.
Posted by: George | Oct 15, 2007 5:20:33 PM
News reports indicate that new kiddie porn is being created to cater to these sickos. What about all of those child victims? Why can't a decent society try to stamp out the market for this stuff by sending these twisted sickos to prison?
Posted by: federalist | Oct 15, 2007 5:22:28 PM
Federalist, there are harsh punishments for this precisely because possession fuels the market (and also the "revictimization" theory, which I don't buy but some people do). That being said, can you really argue that simple possession should expose someone to 40 or 90 years in prison? This is possession, not distribution (to another adult or minor), and certainly not production. Assuming this guy was a first offender, in federal court his exposure would be 0-10 years. Compared to what most people convicted of this offense possess (images and movies in the hundreds to thousands), his was a relatively minor offense. In California it would be a misdemeanor. This guy's in the same position that a first time offender would find himself in for production in federal court.
I am not saying that possession should not be a felony. We have an extraordinarily compelling interest in deterring the production of that material (as opposed to drugs, but I digress). But forty years?
Posted by: Alec | Oct 15, 2007 8:29:38 PM
Don't download kiddie porn and you won't get 40 years. The people paying for this stuff might as well be buying the body parts of dead children, since they fuel a market that kills these children. I wonder if these deviants ever stopped to think, during their onanistic escapades, about whether the depicted children are even still alive.
And yes, each time a sicko looks at one of these pictures, the victim is re-victimized.
Posted by: federalist | Oct 15, 2007 8:40:44 PM
I'm jealous, federalist. I've been trying to work "onanistic," or some variant thereof, into this blog for a long time. Nice work.
Posted by: Anon | Oct 15, 2007 9:45:27 PM
“That being said, can you really argue that simple possession should expose someone to 40 or 90 years in prison?”
Of course he can. In fact, many people (strangely very few actual prosecutors) take a glee in watching people go to jail for the rest of their lives on seemingly minor charges. They get to say “Ha… don’t do X.” Strangely, they also refuse to say that the ideal percentage of the population that should be incarcerated is. Talk about evasive.
And, in terms of simple possession of drugs used by white people, in most cases, the maximum sentence is around six months, and first offenders will rarely get jail time in most jurisdictions.
But, getting away from the drug “hysteria” we have “victimization” theory and “re-victimization” theory. It s virtual symphony of buzzwords that can be used to explain to the lay people why we need to spend so much money incarcerating such a high percentage of them.
Strangely enough, I wonder why nobody is at all concerned with the market for “true crime” photos? Don’t they fuel they market for “crime.” What about the market for ivory? That not only victimizes the elephants but people that like to look at pianos re-victimize the elephants again and again.
The fact that some pianos are made out of plastic doesn’t change the fact that they fuel the market for underground elephants. If you don’t want to go to jail, don’t listen to pianos.
Posted by: S.cotus | Oct 16, 2007 6:46:00 AM
Nobody should spend a day in prison for possession of a photograph. Go after the people who abuse children, not the people who look at pictures of the crime. Nobody gets in trouble for looking at pictures of murdered dead bodies or videos of robberies in progress. I see those videos/pictures on the news every night. We can possess pictures of heroin, cocaine, pot, etc.
The idea that someone would be spending 90 years in prison, and the state was "kind" to reduce it to 40 years, for possession of icky pictures, is simply deplorable. By all means, go after the people who produce the pictures (assuming they are real) because the production of said pictures equates to the molestation of children.
Someone spending 90 years in prison for possession of a picture is much more grotesque, horrifying, and shameful than someone possessing a picture of a 4 year old toddler being raped by a donkey (get the people who made the picture).
Posted by: bruce | Oct 16, 2007 6:58:51 AM
Bruce, The prosecutor wasn't being "kind" but trying to avoid a "disproportionateness" challenge.
Posted by: S.cotus | Oct 16, 2007 7:37:35 AM
How does deleting counts alter the proportionality review at all? It's 10 years per count run consecutive to one another. Whether he gets 90 years for 9 counts or 40 for 4 counts, it's the same proportionality review. If he had one picture and received 10 years, do you think his challenge would have less oomph than 40 years for 4 pictures? (Oomph is a legal term that you nonlawyers need not look up as the definition will only confuse you.)
Posted by: JustClerk | Oct 16, 2007 9:36:35 AM
The most questionable part of the Berger opinion was the one that said that you have to match offenses to sentences individually, in proportionality review, rather than looking at all offenses (or, at least, all offenses that are part of a common plan or scheme committed at the same time) in doing so.
This prosecutor obviously doesn't trust that the Berger analysis will hold in the long run.
Posted by: ohwilleke | Oct 16, 2007 12:04:36 PM
I agree with ohwilleke's analysis.
But I think that the Supremes will stick to count-by-count analysis when/if they get to this. Whatever the case, the prosecutor's actions cost him nothing. The guy will die in jail on the state's dollar without the people even knowing how much its costs them, and therefore the prosecutor can consider this a victory.
Posted by: S.cotus | Oct 16, 2007 12:29:03 PM
I wonder why people, in considering the proportionality analysis, don’t think in terms of dollars and sense.
To put this person in jail will cost the state upwards of 400,000. He will not be paying taxes in jail. He will likely require medical care. The taxpayers will have to pay for this. Yet, the jury is never told about this. Conservatively speaking, this conviction and sentence will cost about a million.
Did he do a million dollars worth of harm? Not sure. I am not even sure that he encouraged a “market” for child pr0n. It is unclear whether he paid for it or not. If he didn’t pay for it, at best, he effectuated some sort of sick society that runs not on money but on pr0n. Nobody seems to even ask these questions. If little or no money is involved, and the produces of pr0n are nothing but a bunch of sick f/cks, then this sentence probably does not actually hurt the pr0n “society.” (I am not going to call it an industry, anymore.) At best, all it does is deter people from viewing pr0n (which, if they are addicted to it really can’t be done), and isolate society from a person that simply viewed pr0n. Is that really worth $1 million?
See, I would agree if this guy was producing pr0n. But, this guy was not. Further, he can’t even assist law enforcement in getting to the producers (unlike drug users). So, this 40-years helps nobody, apart from the people on the receiving end of the expenses.
Posted by: S.cotus | Oct 16, 2007 3:03:26 PM
I don't think re-victimization is a very compelling theory. Market demand is. Re-victimization would cover any picture of a crime involving a victim, be it sexual or physical assault, whether or not the victim is a minor an adult. Pornography is different in that the act is recorded to sate the demand of a preexisting market; the only way to effectively combat the demand is to prohibit the possession and receipt of the material.
S.cotus: I think the difference is that "true crime" photos are usually not produced by offenders to satisfy a market base. That is simply not the case with child pornography. By definition child pornography is produced to satisfy a market for child pornography. And the ivory example is similarly distinguishable; few would question a law prohibiting possession of ivory, but ivory is not ripped from elephants to provide a market for people who simply want to "look" at ivory in pianos.
Federalist, your assumption that child pornography "kills" children is questionable; I don't know what data the National Center for Missing and Exploited Children has, but I seriously doubt a high percentage of child sexual abuse victims who appear in pornography are also murder victims. It reminds me of the excessive claims made by activists who were conviced that "satanic ritual abuse" was a major epidemic in American society...until the early 90s cooled down that debate. I recommend "Moral Panic" by Philip Jenkins, which has a fairly sober analysis of sex offender panic in America over the centuries.
To the (sentencing) topic at hand, even if the USSC retained the count by count analysis, the sentences in these cases are unduly harsh in many jurisdictions (including federal). Even if you consider child pornography a serious and potentially felonious offense (which I do), it is not equivalent to actual child molestation and is less serious than physical assault, armed robbery, etc. I think these sentences, for pornography possession alone, illustrate that sex offender mania is out of control.
Posted by: Alec | Oct 16, 2007 3:39:26 PM
To my knowledge, the market for ivory is purely aesthetic, so, yes, ivory is plucked from tusks purely for people that want to look at it.
I am not really sure if there is a large market for child pr0n, or whether it is more of a “sick” society that isn’t fueled by greed so much as it is by evil carnal lusts. The government is very evasive when it comes to this issue.
Posted by: S.cotus | Oct 16, 2007 3:50:56 PM
In case you missed it, Comcast just leaked its document for cooperating with the police. It's interesting because they charge the federal government $1000 per wiretap unless the case involves child explotation, in which case it's free. Interesting because there is the direct implication that child abuse is worse than terrorism and other crimes, a position I find rather far-fetched.
Like others here, I don't buy the re-victimization line. The market theory is more difficult to evaluate. That has been part of theory justifing the war on drugs and going after drug addicts hasn't limited drug use in the least. I think the truth of the matter is that catching producers is hard and consumers much easier. So this way society can appear to be addressing the problem without actually doing anything to root out the source.
Posted by: Daniel | Oct 16, 2007 7:06:58 PM
To possess a photo of a crime, is a crime?
To possess photos of the Nuremburg war trials evidence would be a crime. To possess photos of Buchenwald would be a crime. To show same to the public would be criminal. Every so called child victimizer should email George Bush their collections and make him a war criminal. This is the stupidist law in Amerika.
Posted by: M. P. Bastian | Oct 16, 2007 11:14:44 PM
This is one of the more bizarre examples of justice I've seen, since the perpetrator will still be serving the functional equivalent of a life sentence. Had they dropped 7 or 8 out of 9, rather than just 5 out of 9 charges, that would be something.
I do agree that there is some merit in punishing these offenses at the demand side, but there is surely something wrong when the penalty for merely looking at pictures is worse than the penalty for committing an actual child rape.
Posted by: Marc Shepherd | Oct 17, 2007 9:20:21 AM
"The people paying for this stuff might as well be buying the body parts of dead children, since they fuel a market that kills these children. I wonder if these deviants ever stopped to think, during their onanistic escapades, about whether the depicted children are even still alive."
federalist, you have a very vivid (and morbid) imagination, but that is the status quo in criminal justice today. All crack users are potential drive-by shooters, for example. All sex offenders are John Couey. All parolees are the Cheshire parolees. The states as experimental laboratories are fantasy worlds. What is perhaps even more disturbing than these pictures is the idea that you could sentence someone based you own imagination because you project it on the defendant. There is no evidence a child was dismembered or murdered and yet you want to sentence as if there is. Why isn't the actual abuse harm enough?
Even more disturbing than that is your clime that the child is forever a victim and will be victimized with every viewing of the picture. What kind of person would sentence a person, who was only a child at the time, to LWOP in victim purgatory? Wouldn't a more sane and social view say, "It's not the child's fault and the child should not suffer, will not suffer, refuses to suffer over and over again even as an adult for ever and ever." It is as morbid as saying child abuse victims (only sexual abuse victims for some unknown reason) have murdered souls.
Posted by: George | Oct 17, 2007 1:29:38 PM
Daniel:
The market demand theory underlying the drug war is not per se unreasonable, but the problem is the focus of the drug war is not on demand but on supply. And going after addicts without addressing addiction (which is typical of how America handles the demand side) will not resolve our drug problem.
You are right that it is more difficult to target supply in this area, but given that this kind of crime by definition involves victims there is also a more pressing need to prohibit simple possession in this context. More to the point, I am not suggesting that going after those who possess child pornography will eliminate child sexual abuse; it does deter the production of child pornography, which deters some child sexual abuse. Given the de minimis value of child pornography for First Amendment purposes, I have no problem with going after people who create the demand.
Looking at these sentences, I wonder how those who support harsh sentences for sex offenders feel about our draconian drug laws, offenses which do not by definition involve victims? If you support ten years for possessing an image of child pornography, either on revictimization or market demand grounds, you have no business supporting long sentences for possessing any amount of any drug.
Posted by: Alec | Oct 17, 2007 2:33:45 PM
I am a criminal justice student.
90 years was quite a sentence. I think that what he did is sick and should pay for his crime for sure, but is 90 years morally justifiable? Murderers and rapists should have harsher punishments! What this man did was not right, but the punishment was outrageous! Still 40 years is a long time. Why is his sentence more than a murderers or rapist? It does not make sense to me why he is. I think we need some work on our whole criminal justice system!
Posted by: Eric | Oct 17, 2007 3:08:03 PM
Eric, "I think we need some work on our whole criminal justice system!"
Why not start with just Arizona./
Posted by: S.cotus | Oct 17, 2007 4:04:19 PM
"Mr. Gonzales, You Have The Right To Remain Silent..."
by Badmoon
Fri Sep 14, 2007 at 07:47:19 AM PDT
On May 26, 2006, Gonzales, FBI Director Mueller and other DOJ officials met with civilian representatives of Internet Service Providers (ISP) in a closed door meeting at the Justice Department. At issue were data retention measures, a pet project of Gonzales.
During the meeting, officials passed around pixellated images of child pornography aimed at pressuring the ISPs to agree to long term data retention policies.
It's clear the spirit of the child pornography laws were violated, but was the letter of the law violated. The Fifth Circuit says yes.
Posted by: George | Oct 18, 2007 1:22:05 AM
One thing to consider about these types of sentences is whether we can really continue this policy. There are a lot of folks downloading this stuff: If you just do a simple google news search with the words child pornography you'll see that about 5 people a day are getting arrested for it. And they are from all walks of life: CEOs, police officers, defense attorneys, teachers, etc. What this tells me is that this behavior is probably normally distributed in the population and the government, like drugs, is only interdicting a small percentage of it. Thus, lot's of folks like this stuff.
If we keep the current policies, we'll soon have lots of folks serving lengthy sentences for these crimes. Now, I'm not saying they don't deserve it, I just don't know how practical it is.
Posted by: Steve | Oct 18, 2007 8:17:38 AM
Steve, If enforcement is selective, it is very practical.
Sort of like open-container laws.
Posted by: S.cotus | Oct 18, 2007 11:48:01 AM
I think all children need protection. But how can looking at free pictures of horrific crimes be a crime? What about at all of the horrific crimes we see? College kids are downloaing kiddie porn not thinking it is a crime. Looking and acting out are not the same. Laws need to punish acting out or filter all illegal images which they can do to protect all our citizens.
Posted by: DK | Oct 22, 2007 11:38:20 PM
Before anyone such as "George" declares that these "sickos" should be locked up, I'd like to make him aware that a teenage girl on a teenager website had child porn pop up on her computer, without her doing anything to cause it. That image could save itself somewhere on her computer, and this "sicko", under Arizona laws, could face a hell of a lot of time in jail for "possessing child porn". A lot of things you think you've deleted don't go away.
The real "sickos" are the ones distributing the stuff. Accidentally coming across it, when you weren't looking for it doesn't make you guilty of anything.
But under our laws, you get labelled an offender and unless you've got money to burn, get sent to jail for 40 or more years.
Oh yeah, I personally know someone who is being punished unjustly for such a crime. The only kind of justice he's getting is because we paid a lawyer a ton of money to represent him. Others in jail will get much worse sentences because they have so called public defenders.
What people really should be angry about is the fact that you won't see any sort of justice at all, if you don't have the cash to pay a lawyer. That's the really sick thing.
And if you don't have any money, they can keep you in the county jail for as long as they feel like, and keep putting off your trial. Real nice, huh?
Posted by: Stacey E | Aug 22, 2010 11:57:49 AM
I'd also like to point out, after having read what "Alec" wrote, that a lot of people are "into" child porn because they were molested as children. So, basically you'd like to see past molested children further "victimized" by doing terrible things to them. Because, god damn it, that's why this is happening. These people are indoctrinated into thinking of children as sexual beings, because they were treated as sexual beings in childhood. They want to do to someone else what was done to them.
Oh, alec is a "criminal justice student" yet he makes outrageous statements without facts. I think they call his original statements "knee jerk reactions". Nice to know that he's so easily swayed by his emotions. Hope he doesn't end up in a positon of authority.
Posted by: Stacey E | Aug 22, 2010 12:08:19 PM
