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July 17, 2009

Another significant downward variance in federal child porn sentencing

This local story from DC, headlined "Former NPR editor gets no prison time in child porn case," reports on yet another notable federal child porn sentencing oucome. Here are the basics:

The former NPR science editor who pleaded guilty to downloading videos of young children being raped will not have to spend any time in prison, a federal D.C. judge ruled Thursday.

Cheers, tears and claps erupted in the packed courtroom when U.S. District Court Judge Ellen Huvelle announced she was going to spare David Malakoff from the six to eight years in prison that he was facing based on federal guidelines. "I say, 'What further pound of flesh is needed to achieve the goal of punishment?'" asked Huvelle.

In explaining the exceptional step of sentencing below the guidelines, the judge said Malakoff had already thrown away a successful career and has to live with the stigma of being a sex offender for most of the rest of his life.  But the strongest argument for the lesser sentence, Huvelle said, was that Malakoff had been raped as a 9-year-old boy and he had looked at the child pornography over five hours last year to relive his own rape.

Malakoff admitted to downloading eight videos on his National Public Radio laptop while in Pittsburgh. The images, which contained violent sexual acts against children younger than 12 years old, were viewed over about five hours. Technical workers at NPR discovered them last summer after Malakoff took the laptop to them for repair.

Huvelle ordered Malakoff to five years probation, a fine of $5,000, 600 hours of community service, and he will have to register as a sex offender for 25 years.

July 17, 2009 at 10:45 PM | Permalink

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Comments

Even in the anything-goes, luck-of-the-draw sentencing world the Supreme Court has now given us, this one is so beyond the pale that it will get reversed.

Not ten minutes of jail time for viewing hour after after of small children getting raped. Good grief.

Posted by: Bill Otis | Jul 17, 2009 11:33:35 PM

So, he downloaded videos of a child under 12 getting raped. Without getting in to distrobution or production, could he have done anything worse? The only thing he could have done to be more blaimworthy is to download more... People who do nothing more then download, potentially less harmful material then he did, get 5-10 if not more. They loose what job they have, thier futures are destroyed, but they ALSO go to prison for it.

Meanwhile, the NPR editor gets probation. Whatever happened in the past is only an excuse for the disparity. I bet if this guy was living in a trailer flipping burgers, childhood rape or not, he would be going to prison. But he was a white collar intellectual, went to college, maybe even a graduate degree. So the judge had empathy for him.

Thats the problem with empathy, its alot easier for a judge to have empathy for someone like themselves, a professional, who was building a career, and who was a member of the intellectual community.

Regardless of what you think about the underlying fairness of either probation or 10+ years, can you really say its fair that there is such a massive disparity?

Posted by: Monty | Jul 18, 2009 1:15:18 AM

Interesting juxtaposition with the sentecing of the former head of the VA ACLU for similar activities about two years ago. That was across the river in Alexandria, and Judge Ellis had no similar sympathy. Seems like a pretty blatant example of disparate treatment, even aside from Bill's critique--two white-collar professionals with respectable careers who viewed SM/rape videos of children, in the same geographic area.

Posted by: Jay | Jul 18, 2009 3:00:53 AM

i hate porn for children

Posted by: stop dreaming start action | Jul 18, 2009 6:09:09 AM

It was an enlightened sentence, the sort we would probably see more often if we were as concerned about justice as looking tough or pandering to the hysterical torch and pitchfork crowd.

The problem with sentencing disparity here is that comparable cases are routinely punished too harshly.

I've tried, unsuccessfully so far, to follow the creative logic that links cases like this one (some pathetic soul looking at awful materials in a dark basement somewhere) to actual child abuse.

And I'd be surprised if there were many suspects in these cases who weren't similarly traumatized as children.

Just how severely do guys like this need to be punished for acts they apparently are powerless to control...particularly if they've never been in the same time zone as their cybervictims?

Posted by: John K | Jul 18, 2009 10:37:32 AM


There are numerous lessons to be drawn from this case. Here are a few.

1. Recently, I was asked by a liberal commenter here whether "count stacking" brought the justice system into disrepute. But neither that commenter nor any other liberal has asked whether the sentence in this case brings the justice system into disrepute. Anyone want to take a guess as to whether "count stacking" or this boys-will-be-boys sentence would arouse the greater degree of shock and disgust among the public?

2. When I supported a partial commutation of Scooter Libby's sentence (for lying to the grand jury) by discarding the jailtime (close to three years) but leaving in place the $250,000 fine, I was roasted, in the Washington Post and here, for supporting excessive leniency for a privileged, white collar crook.

But so far as I can tell, the Post has not covered this story AT ALL, notwithstanding the prominence of the defendant, leaving it to the little-read Washington Examiner. And none of my critics here has so much as suggested that this sentence was too lenient, although the fine here was ONE-FIFTIETH of the one imposed on Libby, for a crime that, unlike Libby's, was depraved and cruel.

3. This case reeks of political favoritism. Huvelle is a Democratic appointee, and her husband is a partner at a major DC firm and a big-time Democratic contributor. NPR is one of the Democrats' favorite sounding boards -- you know, Bill Moyers and the boys. So when an NPR executive is caught in a crime that, under the guidelines, warrants six to eight years, how much time does he get?

Zip. Imagine that.

Does anyone think that if the defendant were an editor for Fox News, we see the same non-sentence?

Right.

4. As Jay notes, this case shows in bold relief just how appalling luck-of-the-draw sentencing is going to be. Liberals used to cite with pride the motto written atop the Supreme Court, "Equal Justice Under Law." But I don't hear a peep of condemnation for the grossly unequal sentence here, compared with the one given just across the river for a similar defendant engaged in a similarly disgusting crime.

5. Eric Holder has had a great deal to say about finding "smart" and "common sense" solutions to crime. His silence about this astonishing case leaves us to wonder whether he views the zero-jail-time sentence here as "smart" and "common sense." I'm quite sure the public would peg it for the outrage it is -- if the public knew about it, that is, which is a longshot as long as it continues to be covered up by DC's leading newspaper and media outlets.

6. Doug recently posted about a public defender's response to a DOJ defense of child pornography guidelines. The public defender cited with particular disdain the "hysteria" encouraged by malevolent prosecutors.

But when, a couple of days later, an ACTUAL CASE of child pornography surfaces, and the generalities perforce evaporate, what are we to make of all this angst about "hysteria?" Is disgust and alarm about this defendant's behavior, and about the boys-will-be-boys non-sentence he received, really "hysteria?"

Of course it isn't. "Hysteria" is simply the word used to try to convince the public that their feelings are being Manipulated By The Evil Prosecutor, and that what is really called for is "common sense" (translation: complacency) -- or, better yet, fawning over the defendant, as Huvelle did here.

One more note. The story says that the defendant was re-living his own rape at age nine. It does not say what the evidence was that any such thing happened, or that the person the defendant accused was even alive to defend himself. But one thing the story does mention is that the defendant is 46 years old -- in other words, assuming arguendo that this alleged childhood rape happened, that it was THIRTY SEVEN YEARS AGO. Is it too much to ask that, in 37 years, a well-educated and sophisticated person might be able to find a way (like therapy) to cope with childhood trauma -- a way other than building up his library of child rape flicks?

Liberals are hardly short on outrage. Where is the outrage here?


Posted by: Bill Otis | Jul 18, 2009 10:59:09 AM

The stories are always the same, and incomprehensible to me, as self-defeating carelessness by defendants.

Never repair a computer. Drill through the hard drive with a drill for metal, and throw it in the landfill. New computers are cheaper than repairs.

This self-defeat as a the path to crime solving is bad news. One has to wonder if the 17,000 murders are the count of victims of careless murderers only. And the count may be far higher. A million people go missing a year. Most reports are resolved, except for 100,000. Is it possible the murder count is not 17,000 but 70,000?

That underestimate of crime would make the failure of the rent seeking lawyer, in total control of the criminal law, a far greater tragedy. We know this incompetence is intentional. In lawyer residential areas, there is virtually no crime. The death penalty for the violent criminal is at the scene, as multiple police units arrive, blasting.

Posted by: Supremacy Claus | Jul 18, 2009 11:08:31 AM

Bill: Come on. This is feminists, and their male running dogs, going after productive males. Why? The Rent, not hysteria.

All those critical studies movements are encouraged by the CCE hierarchy, mostly a white male criminal syndicate, because they are really research and development of new business plans for the CCE. They make stuff up, make money off it, and get more oppressive powers. Where is the evidence that prosecuting viewers reduces the rate of child abuse? That horrible DOJ feminist cited none. There is only made up, pretextual, horrible feminist lawyer gotcha.

This has the validity of having your property confiscated by the Inquisition after the blasphemy of eating meat on Friday. Gotcha, you ate meat on Friday. The church must confiscate your property. Only the mass beheading of Dominicans friars ended that criminal syndicate operation.

The Mafia comes around your store, and demands payment with no benefit to you, save that they will not beat you up and burn down the store if paid. What is intellectually and morally justified in self help, when the police are Mafia employees, and there is no legal recourse against the owners of the legal system, this criminal syndicate?

Posted by: Supremacy Claus | Jul 18, 2009 11:45:02 AM


Again, Bill Otis makes a number of salient points, not the least of which is the unquestioned use of a representation by a defendant that they were raped or the victim of child abuse as an excuse for their criminal behavior and a basis for a sentence reduction. Personal responsibility issues aside, my investigators were required to tactfully obtain more information from the defendant including the name of the perp, whether a report to the authorities was made, and whether anyone else can confirm the behavior. If independent confirmation did not exist, the representation was labeled as such in the report.

Unfortunately, in this era of Oprah and Doctor Phil, it has become common for Courts to credit bald assertions of abuse at sentencing.

Posted by: mjs | Jul 18, 2009 3:54:29 PM

mjs --

The defendant's "criminal behavior" was watching illicit videos. He didn't go on a murder spree or actually molest a child.

Posted by: John K | Jul 18, 2009 4:34:18 PM

All feminists and their running dog lawyers should undergo total e-discovery. We are looking for an improper motive. Feminism is never a proper motive.

I would bet ten cents there is plenty of child porn in the prosecutor's computers. And as to the excuses, "It's for research." "It is for my work," all perps say the same thing.

Posted by: Supremacy Claus | Jul 18, 2009 5:43:18 PM

Here's a novel idea. Congress should pass a law requiring guidelines and long, very long, mandatory sentences for everyone. That would fix the disparity. If there were mandatory sentences this man would have been deterred for sure.

On the other hand, maybe he sat down at his computer and thought, "No worries. I'll get a judge Bill Otis hates."

And the stacking charges discussion goes in the acquitted conduct discussion.

Posted by: George | Jul 18, 2009 6:15:25 PM

George --

When you inquired whether I thought "stacking counts" brought about disrespect for the criminal justice system, I replied that, as best I can tell, if you asked a hundred people on the street that question, you would get a hundred responses of, "What are you talking about?"

By contrast, we all know what forcible child rape is. So let me ask you whether you think that imposing no jail time whatever for obatining and viewing, hour after hour, a video showing a nine year-old child being raped, brings respect or disrespect to the system.

Personally, I think the defendant's behavior was depraved and perverted, and that the public would be outraged that someone who knowingly did it doesn't get so much as ten minutes in jail.

But I'm asking your opinion. Does the sentence in this case bring respect or disrespect to the criminal justice system?

Posted by: Bill Otis | Jul 18, 2009 7:46:05 PM

John K --

"The defendant's 'criminal behavior' was watching illicit videos. He didn't go on a murder spree or actually molest a child."

1. Why do you put the words "criminal behavior" in quotation marks? Do you think it was not actually a crime? Or do you think that being a consumer of child rape movies SHOULDN'T be a crime?

2. Would you have the same blase' attitude if your nine year old daughter were the one forced into service as the "star" of a forcible rape movie?

3. Are you not aware that there is a market for movies like this, and that being a consumer builds that market? And are you not aware that that market, like every other, depends on demand, and that demand will be met by forcing more children to submit to this sort of stuff?

Posted by: Bill Otis | Jul 19, 2009 9:22:40 AM

I agree with what Monty is saying. I'm not outraged by the sentence per se but I am outraged by the sentence in the context of what other people are getting. The really hurtful and hateful thing about this sentence is that it allows white intellectuals to sweep the problem under the rug and believe that only low class scum are predators. I see it as an indubitable fact that this sentence was based *entirely* on this man's class and reputational standing.

As a psychologist I have two points to make. The first is that child sexual abuse that occurred decades before is, barring an admission by the perp, nothing but a special plea. It's his word and his word alone. It's legal weight should be absolutely zero.

The second point is so what. We do know that many sexual abusers where abused themselves as children. But many people who were abused as children do not. This type of sentence is a slap in the face to all those people who fought their demons and won. Nobody gives a crap about them. Nobody is paying their medical bills. Many of these people are living in poverty because they struggle daily with the consequence of their abuse and society--in sentences like this--sneers at them; it laughs in their face. Where is the empathy for the people who day-to-day struggle like hell to keep their head above the water.

How should I counsel a person who walks in my door? Why should I tell them not to give in. Why should I advise them to break the pattern of the past. What do they have to gain by such advice? Should I tell them the truth: it's a legal crap shoot and take your chances. That fortune favors the brave. Or should I give them a cheery salute while thinking they're a fool.

I want to be clear that I think harsh punishments for merely looking (as opposed to producing) child porn are wrong. But the law should be applied equally. And this is a case where it appears it was not.

Posted by: Daniel | Jul 19, 2009 10:29:25 AM

"Or do you think that being a consumer of child rape movies SHOULDN'T be a crime?"

Bill. I don't know about the other person but this is what I believe.

Posted by: Daniel | Jul 19, 2009 10:35:49 AM

"But I'm asking your opinion. Does the sentence in this case bring respect or disrespect to the criminal justice system?"

If you read the story comments, it does both. The jury is split. Those who approve of this sentence may or may not do so because they think too many other sentences for the same crime are excessive, which may in turn bring disrespect for the law. People also appear to understand he will be punished by the registration requirement even though that is not legally punishment. He, like Libby, is not going to go scott free.

Posted by: George | Jul 19, 2009 11:09:04 AM

Bill --

The continuum is always useful. With crime, merely looking at awful pictures or videos should be closer to the beginning of the child-porn continuum.

Buying child porn (and therefore fostering commerce in such materials) should move the viewer a few additional ticks along the continuum.

Producing materials featuring exploited, abused children should fall near the end of the continuum.

What's going on in this thread, and in some courtrooms as well, is an attempt through hyperbolic fulminations to nudge simple possession further along the continuum than where it might fall naturally (again, somewhere toward the beginning).

"Criminal behavior" was in quotes because I was quoting the poster to whom I was responding. In the context of my reply, the quote marks served to underscore the above point, namely the tendancy to inflate lesser crimes with the qualities of more abhorent crimes. That's all.

I do think simple possession of child porn should be a crime, but not one demanding years or decades in prison. Anybody who wouldn't be detered by the prospect of life in America as a registered sex offender (with or without a prison experience) probably can't be detered at all.

Posted by: John K | Jul 19, 2009 11:37:19 AM

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