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December 1, 2008

An understandable (but debatable?) child porn declination decision by federal prosecutors

A former student alerted me to this fascinating story from the Buffalo News, headlined "Quadriplegic spared prison in child porn case: U. S. attorney agrees to forgo prosecution."  Though the headline provides the basics, here are some notable particulars:

When federal agents and prosecutors first learned about Wayne Schifelbine and his child pornography crimes, their inclination was to put him in prison for a long time.

But then agents discovered something else about the 43-year-old Allegany County man who was using a credit card to buy images from child porn Web sites: Schifelbine is a quadriplegic.  He cannot walk, requires 24-hour nursing care and spends all his time in his bed or wheelchair.

After hearing about his physical disabilities, U. S. Attorney Terrance P. Flynn decided to offer the Belmont man an agreement that would carry no criminal conviction or prison time.  Schifelbine, however, will forfeit $50,000 to the federal government and his use of the Internet will be restricted....

“Child pornography is a very serious crime that hurts children. But in this case, we came to the conclusion that no punishment in federal prison could compare to the punishment that has already been inflicted on this man,” Flynn said. “You could say that he’s already in prison for life.”

Schifelbine’s attorney, Joel L. Daniels, calls the case one of the saddest he’s seen in 44 years as a lawyer. Both he and Flynn also call it a classic illustration of the dark side of the Internet.

Schifelbine, a former factory worker who suffered severe spinal cord injuries in a 1999 construction accident, has no record of molesting children. He received and looked at child porn, but did not create the material. Even if he wanted to — which he does not — Schifelbine is physically incapable of molesting children, his attorney said....

Flynn, who usually takes a very hard line on child porn prosecutions, said he agreed with Daniels’ assessment of the situation.  At the same time, Flynn emphasized that he does not condone the actions of Schifelbine or anyone else who looks at child pornography. “The men who buy or look at child pornography are the ones who create the market for it,” Flynn said.  “Ultimately, the federal prison system could have made accommodations for this man.  But our thought was, what purpose would that serve?”....

Schifelbine got a “substantial” financial settlement after his accidental fall, and paying the $50,000 forfeiture is not a problem for him, Daniels said.

I have no problem with the declination decision in this remarkable case, and I am always glad to hear stories about a federal prosecutor sensibly using his (unreviewable) discretion to make reasoned and reasonable sentencing decisions.  That said, I find intriguing and debatable Flynn's suggestion that prosecuting and potentially imprisoning Schifelbine in this case would serve no purpose. 

Many defendants, particularly white-collar, first offenders who have long lived law-adibing lives, often tell an array of sympathetic stories about their personal situation and family circumstances to argue that a prison sentence would serve no purpose.  They often sensibly contend that the ordeal of federal prosecution and the collateral consequences of a conviction ensure they never will or can commit future crime.  But federal prosecutors often respond that a long prison sentence for such an offender will serve the important goal of general deterrence even if there is no risk of future offense by the defendant. 

It seems that Flynn might have made a general deterrence argument to justify prosecution of Schifelbine case.  If (and when?) the national media began to discuss a federal prosecutor's decision to prosecute even a quadriplegic for receipt of child pornography, other potential person who might not realize the seriousness of this crime would be sure to take notice.  And if this seems harsh, do not forget the case of Danny Espinoza (blogged here), a quadriplegic subject to criminal prosecution for his role in the very accident that led to his disability.

December 1, 2008 at 07:50 PM | Permalink

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Comments

The disability rights lobby should be outraged by this decision, but most of them won't be, sadly. If the goal of disability rights is to have people treated equally, then that must mean equally in both positive and negative situations. I suspect the real reason he wasn't prosecuted had nothing to do with sympathy and everything to do with money. The costs of accommodating him in the prison system would have been significantly more than the typical prisoner. From a cost-benefit viewpoint, the incremental benefit from general deterrence is grossly outweighed by the monetary cost the system would incur.

Posted by: Daniel | Dec 2, 2008 12:57:04 AM

I think a desserts argument would make an even stronger case.

Posted by: | Dec 2, 2008 10:10:31 AM

It appears the tuff sentences are not because viewing child porn harms the child depicted, but the real reason for the tuff sentences is because the viewer is a loaded gun who at any minute might go off and harm a real child.

Posted by: George | Dec 2, 2008 11:12:47 AM

It appears the tuff sentences are not because viewing child porn harms the child depicted, but the real reason for the tuff sentences is because the viewer is a loaded gun who at any minute might go off and harm a real child.

Posted by: George | Dec 2, 2008 11:14:29 AM

My favorite was the fellow facing with a 15-year mandatory minimum term (ACCA) for weapons possession, on the basis of his possession of the gun with which he tried to commit suicide, nearly, but not effectively, blowing his brains out.

Prosecution went forward, but, as I recall, the judge balked, and a plea deal to a very much reduced charge eventually resulted.

Posted by: David in NY | Dec 2, 2008 3:09:09 PM

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