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December 12, 2008

Is there a law student sentencing discount for federal child porn charges?

In this post a few months ago, I responded to a story headlined "Penn hacker sentenced, avoids child porn charges," by wondering if there was an an ivy-leaguer exception to federal child porn charges.  Today, this new local story of a child porn sentencing out of Boston has me wondering if there is a law student discount in federal child porn sentence cases.  Here are some excerpts from an interesting of what sounds like an interesting sentencing hearing:

A former law school student was sentenced Thursday to a year in a halfway house for possessing child pornography. Robert A. McDonald, 25, formerly of West Springfield, dodged a stiffer sentence in federal court after he made a teary plea for leniency and told a judge he deeply regretted looking at pictures of young children being sexually abused on the Internet....

In July, he admitted to one count of possession under a plea agreement with prosecutors. The halfway house sentence will allow McDonald to work during the day, but he must return there nights and weekends for a year.

Defense lawyer Hope C. Button said McDonald, now of Millbury, suffered from an Internet addiction and became enthralled by pornography as an adolescent. He began dabbling in child porn in spring 2007, according to Button. "The time Mr. McDonald viewed illegal pornography was extremely limited," Button told U.S. District Court Judge Michael A. Ponsor during a sentencing hearing. "It was if he had just stepped over that line."

Under advisory federal sentencing guidelines, McDonald faced a minimum of 24 months in prison. Ponsor told the defendant that judges are under increasing pressure to hand down onerous penalties to anyone involved in the distribution of child pornography - particularly over the Internet, where it proliferates. "There is no question that Congress wants us to clobber child pornographers," Ponsor said. "Sentences have been ratcheted up and up and up, and messages to judges have gotten louder and louder and louder."

To be sure, McDonald seemed an unlikely candidate to be standing before the court. According to court filings, he was a standout student who made the Law Review, was engaged to be married and aspired to hold public office when agents raided his house....

Assistant U.S. Attorney Alex J. Grant argued for prison time, but noted McDonald was an unusual defendant. "I dare say that there are few defendants that I prosecute ... who have a resume and a Law Review article to submit (at sentencing)," Grant said.

As I have stressed in a number of prior posts, anyone seriously concerned about federal sentencing disparities should look very closely at federal child porn cases.  And, critically, this look must focus closely on the operation of prosecutorial discretion, which often seems to have an even bigger impact in these cases than judicial discretion.

Some related federal child porn sentencing posts:

December 12, 2008 at 09:50 AM | Permalink

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Comments

Interestingly, the Third circuit case (I can't recall the style or citation off hand) that was used as the original basis for creaing a sentencing departure under U.S.S.G. section 5K2.13 (diminished capacity) involved an attorney who had been molested as a child, became an alcoholic and addict as an adullt (as I recall)and was convicted under a child pornography statute. In cases such as the one you report involving the law student, it would also be interesting to know whether defense counsel sought a downward departure based on "aberrant behavior", which might have been applicable. The other question left open by your post is whether the young man will be permitted to finish law school and sit for the bar exam, since any felony conviction is generally grounds for denying admission to the Bar in most states. If he is not to be permitted to complete his legal education and sit for the bar exam, then isn't that the most onerous part of his punishment?

Posted by: Jim Gormley | Dec 12, 2008 10:28:32 AM

Is there a law student sentencing discount for federal child porn charges?

No. You have to make law review.

If you want to look at child porn, practice your bluebooking.

Posted by: | Dec 12, 2008 11:51:10 AM

Isn't most crime "aberrant behavior"? If it were normal, it wouldn't be a crime.

I continue to applaud Doug for his stance and publicizing of this issue, especially the issue of prosecutor discretion.

I also wonder if his age had anything to do with it. It both cases (here and the PA case) we are dealing with men in their 20s. I wonder if people are looking at that as somehow less serious than a man in his 30s or 40s, living alone, sporting a beard. I remain struck by how many child porn cases that the media pushes have photos of men who look deranged. It's a very real problem with our legal system. if you don't fit the type, people are less inclined to believe you did it.

I do find it shocking that he was given probation.

Posted by: Daniel | Dec 12, 2008 1:32:38 PM

Yes, let's waste time handing out a sentence that we know will be overturned on appeal.

The way to get bad laws revoked is to enforce them vigorously, not to overlook them.

Posted by: Soronel Haetir | Dec 12, 2008 6:45:20 PM

Sigh, that was meant for the Maine driver case thread.

Posted by: Soronel Haetir | Dec 12, 2008 8:32:19 PM

In repply to Daniel's response about "aberrant behavior", U.S.S.G.section 5K2.20 provides for a downward departure under the circumstances enumerated therein for what they call "aberrant behavior", notwithstanding that all crime may be viewed as "aberraant">

Posted by: Jim Gormley | Dec 13, 2008 8:32:53 AM

Not just sentencing but charges as well. A practicing San Diego attorney, Paul H. was moonlighting as a stripper while a St. Louis law student back in 1999. He was also secretly filming sexual encounters in his bedroom, and sharing the footage with friends. Which got back to some of the females. Alas one of the females was only 17. The state dropped the child abuse and child porn production charges for an "invasion of privacy" felony. "Geno" got 30 days in jail, a two year suspended sentence, and a law license. Produced, starred in and distributed child porn. Hard to believe the feds were not consulted, given the media attention at the time. Regardless, it appears the soft prosecution was directly related to his chosen profession.

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