September 17, 2008
District Court finds AWA mandatory sentence unconstitutional under the Eighth Amendment
Thanks to this post at Sex Crimes, I have learned of this recent federal district court opinion which concludes "that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution." US v. Farley, NO. 1:07-CR-196-BBM, slip op. at 8 (N.D. GA. Sept. 2, 2008).
Unfortunately, this Farley decision does not fully review all the key "specific fact," but this section of the opinion provides the essential highlights:
The court fully recognizes the serious nature of Mr. Farley’s offense. He believed a ten year old child to exist and took steps to engage in sexual activity with her. It is also a fact that Mr. Farley never had any contact, sexual or otherwise, with the child. No harm was suffered. Of course, it was not possible for a child to be harmed, because the child was a creation of law enforcement, and no real child exists.
It appears that Mr. Farley travelled across state lines in an effort to engage in sexual activity with a fictious ten year old. But, providing a constitutional twist on the school-yard "no harm, no foul" principle, the district court here decides that this act alone cannot provide a sufficient basis for a 30-year mandatory minimum sentencing term.
I may have more to say about this ruling once I get to read it closely, but I can already enjoy pondering whether the Justice Department will decide to appeal this ruling to the Eleventh Circuit.
September 17, 2008 at 02:36 PM | Permalink
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A Clinton judge. Not surprising.
Basically, this crime is an attempt to sexually assault a minor. (I know the crimes don't really play out that way under the federal scheme, but the 8th Amendment disproportionality analysis really shouldnt turn on that kind of formalism.) Attempt crimes can (other than murder) be treated as completed crimes under the Constitution. A 30 year sentence for sexually assaulting a 10 year old would be ok; therefore a 30 year old sentence for what is basically an attempt at sexual assault of a 10 year old should be ok.
I realize it's a tad more complicated than that, but if this were prosecuted in state court as an attempt, there would be no question that the sentence is ok. Why then a different result under the 8th Amendment?
Posted by: | Sep 17, 2008 3:16:08 PM
The Farley court appropriately reasoned that travel with intent to commit a sex act with a minor is less serious than attempted sexual assault because a criminal attempt requires much more than simply crossing state lines with bad intent. Nonetheless, the court went ahead and compared penalties for attempted sexual assault against a minor in all 50 states against the 30-year mandatory minimum for the travel crime, and found that no state would impose such a high penalty on attempted assault. In fact, according to the opinion, most states impose a maximum sentence of between 3 and 30 years for the more serious attempt offense.
Posted by: sen | Sep 17, 2008 4:52:37 PM
Sen, does that matter? If, as I have posited, an attempt can be, as a constitutional matter, treated as a completed crime, then if a 30 year sentence for a completed crime is ok, isn't 30 years ok for what is an attempt at completing the crime?
Posted by: | Sep 17, 2008 6:02:12 PM
This is the clearest case of using Legislative History to question the applicability of an otherwise unambiguous textual provision. The attemted crime mandates the 30 mandatory minimum; Congress clearly knew what it was doing.
Posted by: Da Man | Sep 17, 2008 9:06:19 PM
I am not sure the distinction that you are drawing, 6:02pm. Where does the constitution come into play. The sentencing limits are set by the legislature, not the courts. If they want to set the sentence for an attempted crime the same as the sentence for a completed crime, that's there business.
I haven't had time to read the full opinion myself. But Corey over at Sex Crimes notes that the judge thinks that the behavior of the perp doesn't actually meet the elements of the crime. This has always been my thinking as well. You cann't attempt a crime against something that doesn't exist, first of all. And second of all, even if you could, merely crossing state lines isn't enough. If one commits the crime of attempted murder, for example, it's just another way of saying the murderer gunshot missed or failed to deliver the fatal blow. Likewise, traveling between states thinking about a crime is not attempting anything illegal.
Posted by: Daniel | Sep 17, 2008 9:06:23 PM
The judge failed to address a valid reason for such a large mandatory minimum: deterrence of others. These travel cases reveal how many pedophiles are trolling the Internet for victims. An individual may think to himself that given how many people are on the Internet who aren't cops that his chances of being caught and punished are very low. Only by making the potential punishment high can we expect to have any impact on people like Farley. (I'm trying to sound like Posner here by talking economics - how am I doing?)
Another problem with the opinion is that under our Federal system jurisdictions are supposed to tackle problems in their own way. Sure, the federal law is an outlier in this respect - but maybe they are tackling a problem that other jurisdictions are being negligent about. Why can't a jurisdiction get out on front of an issue?
Posted by: Alan O | Sep 17, 2008 9:25:56 PM
"(I'm trying to sound like Posner here by talking economics - how am I doing?)"
You sound like an idiot. Which is exactly how Posner sounds. So, good job.
Posted by: Daniel | Sep 17, 2008 9:39:56 PM
"These travel cases reveal how many pedophiles are trolling the Internet for victims."
Do tell. It seems "many" of these cases don't actually involve 10 year olds, but rather fat, lazy cops. Congress' reaction to child sex crime hysteria has been disproportional to the actual danger, the statistics just don't bear out the notion that there are "many" more pedlos on the 'net. If you want to cite statistics, then go ahead, otherwise I'm with Daniel -- you sound like an idiot.
Posted by: OhPlease! | Sep 18, 2008 10:38:09 AM
Instead of hurling insults at each other, why don't you all address why you think it's appropriate for a court to second-guess Congress's legislative judgments on what punishmet is appropriate for certain crimes?
You defense lawyers hammered the Apprendi line of cases to avoid binding Guidelines enhancements; so now you complain that Congress uses its statutory authority to make clear what sentence it wants imposed. So you resort to the 8th Amendment. Bottom line: you think the question of appropriate punishment resides solely with the judge, and the Congress's only role should be setting a range between zero and some other number.
Posted by: Da Man | Sep 18, 2008 11:40:38 AM
Personally, I believe that Congress has the right to make a 30 year sentence for an attempted crime. But that is not what this man was convicted of. The key element in his crime was his intent, because the chat sessions are proof that he intended to cross state lines to molest someone. I am morally opposed to thought crimes and I believe them to be facially unconstitutional. What does freedom on speech mean if there is no freedom of thought or freedom of will? It means nothing.
Justice Holmes famously said, "A man's heart can be as good or as bad as he pleases, so long as he obeys the law." Which works just fine until you outlaw what's in a man's heart.
Posted by: worlddan | Sep 18, 2008 12:30:04 PM
Daniel - thanks for the thoughtful comment. That was a great point. You really made a complete argument.
I have just one question - how did you hook your Big Chief tablet and crayons up to the Internet?
Posted by: Alan O | Sep 18, 2008 8:34:19 PM