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December 9, 2008

Another notable child porn sentencing decision

I've previously noted the diversity of approaches and outcomes in federal child porn sentencings, in part because the the guidelines recommend sentences around the top of applicable statutory ranges.  A helpful reader sent along a notable new decision addressing these realities handed down last week by Judge Pratt (or Gall fame).  The opinion in US v. Johnson, No. 4:07-cr-00127 (N.D. Iowa Dec. 3, 2008) (available for download below), merits a full read.  Here is one of many notable passages:

Congress has created a fifteen-year window, between the statutory minimum (5 years) and maximum (20 years) sentences, within which this Court can penalize a convicted child pornographer. See 18 U.S.C. §§ 2252(a)(2), (b)(1). However, on account of Congress’ tinkering with the guidelines, the Commission now recommends that nearly all defendants be incarcerated near the twenty-year statutory maximum. Thus, strict adherence to the sentencing guidelines effective at the time of Defendant’s arrest, and even more so to those effective today, would make it difficult for the Court to consider the individualized factors that § 3553(a) requires.  Stated differently, the Court would struggle to differentiate between the punishment appropriate for the most and the least egregious acts of child pornographers.  As this Court noted in Shipley, the Court must consider the need to avoid unwarranted similarities in the punishment handed down to differently situated defendants.  560 F. Supp. 2d at 745-46.  The statute provides a broad range of punishments for the crime Defendant committed . If Congress does not want the courts to sentence individual defendants throughout that range based on the facts and circumstances of each case, then Congress should amend the sentencing statute, rather than manipulate the advisory guidelines, thereby blunting the effectiveness and reliability of the work of the Sentencing Commission.  While the Court has consulted the advice of the guidelines, the Court finds this advice is less reliable in the present case than in others where the guidelines are based on study and empirical data.

Download Johnson CP Sentencing Decision

December 9, 2008 at 10:26 PM | Permalink

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Comments

The “Butner Study” is the same one by Mr. Hernandez posted about on this blog at If you want to feel good about the Williams ruling...

It's also cited as support of California's law: SB 1187 (Battin).
.

Another support for the law is the National Juvenile Online Victimization Study (pdf) which looks like a good, rational study, but it couldn't confirm a correlation between viewing child pornography and hands on sexual abuse, though it does reveal the prosecutions really are for the worst of the worst pictures. As does Judge Pratt's opinion, which is also a rational breath of fresh air.

I still think eight years is about 7 years more than necessary, and as the opinion points out, why let him go for 3 years if he was so dangerous?

And isn't a pornographer one who makes pornography?

Posted by: George | Dec 10, 2008 3:54:32 AM

Although the 3553(a) analysis and the nod to the Stabenow paper are good, they are becoming well-trodden ground. The good news in this opinion is the well-reasoned rejection of the unpublished, non-peer-reviewed Hernandez study and the prosecution's attempted use of it to persuade courts to presume that every offender in Class A (viewers) has also committed, and/or is a substantial risk to commit, an offense in Class B (molestation).

Posted by: Def. Atty. | Dec 10, 2008 10:19:33 AM

As we say in our office, "viewers" are a lot different than "doers." If only the Guidelines reflected that.

Posted by: AFPD | Dec 10, 2008 3:10:57 PM

I like your saying, but sadly most everyone is treated the same. If they haven't found you "doing"....they just assume you haven't been caught yet. If you say you aren't interested in doing, you are labled as being in denial. It's a no win situation. Even if you only delved in this for a few months, and stopped on your own, they are going to get you "help" for your sexual deviancy. Everyone makes money. It also matters not if you paid for it or not, which I believe is a huge distinction that should be made. Also using deleted images against a person just seems very wrong. They may be trying to fix the problem, but they are for sure throwing the baby out with the bathwater. It's sad, and don't take this the wrong way, but a person can view pics of a child being beat up, abused, given drugs or even killed, and there is no law against it, but you throw sex in the mix, now it's Federal Crime.

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