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June 20, 2008

Judge Adelman operationalizes deconstructed child porn guidelines

As noted here, the federal defenders' first paper in its important "Deconstructing the Guidelines" project addressed the child porn guidelines.  Fortunately for a defendant sentenced today, federal District Judge Lynn Adelman keeps up with his sentencing reading: he cites this new paper in support of a below-guideline sentence in US v. Hanson, No. 07-CR-330 (E.D. Wisc. June 20, 2008) (available for download below). Here is the start and a key paragraph from the opinion in Hanson:

The government charged defendant Jon Hanson with transporting and possessing child pornography, contrary to 18 U.S.C. §§ 2252A(a)(1) & (a)(5)(B), and he entered a plea of guilty to the transporting charge, which carries a statutory penalty range of 5 to 20 years. However, due to the numerous enhancements he faced, the sentencing guidelines recommended that defendant spend 210-262 months in prison.  Because I found this range far greater than necessary to satisfy the purposes of sentencing in this case, I imposed a non-guideline sentence of 72 months, followed by life of supervised release. This memorandum sets forth the reasons for the sentence imposed....

In a recent paper published on Professor Douglas Berman’s sentencing website, an Assistant Federal Defender traced the history of this guideline and pointed out its serious flaws, which were clearly evident in this case. See Troy Sabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, available at http://sentencing.typepad.com (June 10, 2008). As Stabenow explains, much like the crack guideline criticized by the Supreme Court in Kimbrough, guideline 2G2.2 is not representative of the Commission’s typical role or of empirical study.  The guideline has been steadily increased despite evidence and recommendations by the Commission to the contrary.  Congress has repeatedly amended it directly, ostensibly to target mass producers of child pornography and/or repeat abusers of children, a class of offenders that make up less than 5% of those affected by the changes. The most recent changes from 2003 apparently came from two lawyers in the Justice Department who persuaded a novice Congressman to add them to the popular Amber Alert bill. Id. at 27.  To the extent that the advisory guidelines deserve continued respect from courts, that respect will be greatest where the Commission has satisfied its institutional role of relying on evidence and study to develop sound sentencing practices.  This guideline simply does not represent that role, as the Commission itself has acknowledged.

Download hanson_written_sen_memo.pdf

June 20, 2008 at 05:58 PM | Permalink

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Comments

Interesting... a Guideline gets more respect if Congress is more directly involved in shaping it.

I understand the logic, and I suppose Congress's business is more about statutes than Guidelines, but the quoted passage is interesting reading in that way.

Posted by: anonymous | Jun 20, 2008 6:35:05 PM

the first more = less.

D'oh

Posted by: anonymous | Jun 20, 2008 6:35:30 PM

Another excellent opinon by a thoughtful judge. The reasoning (approved in Gall and Kimbrough) will help undermine the entire framework of the draconian sentencing ranges prescribed by the advisory guidelines. Particularly true as enhancements are piled on enahancements.

Posted by: Michael R. Levine | Jun 20, 2008 11:25:49 PM

The really sad part is that the average person has no idea about these guidelines. I think most people know if you rob a bank or shoot someone you are breaking the law, but what average person knows about ANY of these guidelines? I have even spoken to a circuit court judge that didn't know the parameters for mandatory sentencing. Another lawyer told me you are better off actually molesting someone than looking at Child Porn, due to the sentencing. This country has truely gone mad. No one knows these laws, and only finds out after they are raided by the FBI, etc. It's amazing in this day and age that so many products come with warning labels that seem stupid, yet something that can get you years in jail is a well kept secret. I would honestly have no problem with mandatory sentencing IF the person was aware of it before the crime was committed, but to use it against people without knowledge is very unfair.

Posted by: JC | Oct 4, 2008 12:21:54 PM

America Better WAKE UP.. You could be next on the registry.My brother is sitting in jail as a violent felon for one count one pic that was in a temp internet file and he had proof he was at work the day it was put on his computer. Jury found him quilty his kids had pics on the computer they took of themself that was innocent pics but were introduced as child erotica to get a conviction. Sad sad sad....They are arresting people for mooning breast feeding in public taking a leak on the side of the road and the list goes on and on and on.... BUT the funny thing is the federal marshalls can not catch who puts the child porn on line...isnt that amazing.. how are we safe from a terrorist attack? if they cant catch pervs putting child porn on the computer how are we protected from anything. It might sound sad and we do have child pervs but they get probation my friends daughter was sexually molested along with 2 other girls the man rapped them and had 3 indictments and got probation.. Is that not a violent crime. I guess touching someone is ok but a picture of them is violent... YOU DONT KNOW WHEN YOU COULD BE Fighting for your freedom or your loved ones freedom. The law makers are still changing the child porn laws for stiffer penalties. I can agree with that if you have a lot of pics and molest and really need that kind of sentence but they put everyone in the same catagory. SO America better wake up you could be next. PLEASE HELP US TELL ME SOMETHING WE CAN DO EVEN WITH A APPEAL HE HAS AT LEAST A YEAR IN JAIL til the appeal comes up.

Posted by: Debbie Moreland | Jan 8, 2009 3:02:37 PM

Well I find myself at the 5th entry in my series of websites that are amazing yet do not have the web 2.0 aesthetic. I like many other designers have fallen to the addictive properties of http://cm.loading-dvd.com/blog/youporn-porntube/ which has allowed me to find such an amazing set of sites and share them here with you.

Posted by: Youporn porntube | Feb 20, 2009 6:57:05 AM

A good friend of mine is sitting in prison now. He's been sentenced to 135 months. His home was raided by US Marshalls for receiving/sending pornography via the internet that included minors. As a child, he was sexually molested. His attorney made sure to have him psychologically assessed. $25,000 later, we learned what I already knew - he's not a pedophile. Funny, but since I started investigating this stuff online (my computer has only been permitted in my home since he was imprisoned), any search I do related to sentencing information about pornography laws related to the internet brings up alerts and/or links to free or cheap porn sites. Do I think the government is now tapping into or spying on my computer? Of course I do.

Posted by: lorna | Mar 28, 2009 3:55:29 AM

Here's a scary one - how about getting 5 years (mandatory) for receiving 2 pictures??? The prosecutor becomes judge and jury and if they want to make a name for themselves your goose is cooked. I'm the wife of someone who just may be looking at this sentence.

Posted by: BGrace | Jun 29, 2009 2:56:25 AM

Child porn is now over "20%" of the over-all porn on the internet. The authors of this crap have resorted to placing self-downloading files on a persons computer by tracking their URL address. They follow people on Naturalists sites, modeling sites, and normal porn sites. Many times, they use a persons computer to use as a base to bounce their garbage through without the person even being aware of it; all of this will be stored in a computers hard drive. For me, It was the self -downloading files/ viruses that did me in. As an artist by profession, I paint nudes from time to time. Nudist sites are a good source for models for me. I was "constantly" solicited by child porn sites (via pop-up windows) to join or view their sites. Though I never did, of course, I would often find a box behind their window appearing to be downloading "something," so I would naturally try to close it out. I learned later from a computer expert that this is in fact a ploy. When one presses cancel, the thing downloads somewhere on your computer and won't let you throw it away unless you deinstall and reinstall all of your software. Still, it remains on the computer hard drive. The police and/ or Feds are counting on the fact that you will be drained of money before you can get to pay for forensics to prove your case. They know whether or not a virus has been placed on your computer, but they are interested in winning cases; they are not interested in voluntering this information for your sake. Everyone should know this information: Forensics is everything. Without it, you're screwed; and maybe even with it. In my case, I know the Feds know I'm innocent. They just don't care. You should see a great number increase in cases like mine in the near future. Welcome to the new American justice system... just don't lay down!

Posted by: dan | Jul 25, 2009 2:45:14 PM

Wow, I guess I am the only one who thiks hmmmm.... these are pictures of actual children who have been sexually exploited and abused. Why in the name of God would any decent human being want to look at even 1 photgraph of that kind of garbage. You will never have to worry about the FBI invading your home if you do not participate in the exploitation of children. When did these types criminals gain the status of victims? why do they deserve society's pity? and if that is now their status what do we call the true victims? I am a Crimes Against Children Detective

Posted by: R. T. Bessinger | Sep 18, 2009 4:50:37 PM

All of you need to look up 18USC2257, and 28CFR75.

It is NOT illegal to download porn, nor are you required to know who it is, or their age. The requirement of knowing actors, and age ONLY applies to Commercial producers, NOT consumers.

These laws can be used as defense in court also. Many adult actors pose for teen related photo shoots. The average person CANNOT tell the difference between an adult actor and a real under age person.

If you (or a doctor) cannot tell they are adults, neither can the prosecution.

Doctors are also wrong, many times, as far as proof of age. I know one VERY old (65) child doctor specialist, that specializes in development, and growth issues in children that got 80% of porn photos he was shown incorrect. They were adult actors, he could not tell.

If the photos are pre-teen or mid teen, you are risking a nasty jail sentence, even if the images are stills - or Glamour shots.

Forensics are NOT everything in these cases. Their are ALOT of scammers that do this for a living. The not-guilty rates are VERY low when using these companies.

Draining your pocket is what they specialize in.

Since the courts will NOT allow the hard drive to be sent to a professional data recovery company, they cannot convict you. No proof, no evidence, no case.

The prosecution has no money to pay for professional data recovery services, so they tend to use some one working out of an office, this is illegal, and cannot be used in court.

When the courts do things correctly, all the way through the investigation, then the conviction is usually warranted, but this only happens in less than 5% of cases. Cops are not too smart, and they know nothing about computers.

Posted by: JOhn | Oct 6, 2009 5:50:28 PM

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